Defending a deposition during an Illinois divorce

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Objections At A Deposition During an Illinois Divorce

Defending a deposition during an Illinois divorce

While everyone knows, more or less, how a trial works, a deposition is a little baffling. An attorney can ask anyone they like to appear at a date and time certain to be questioned about matters which will be revealed…on the deposition date.

Furthermore, the rules of evidence are completely different during a deposition. The many objections that you hope you have memorized do not apply during a deposition…but some do.

The questions in a deposition are not submitted in advance to the deponent. The questions will be a complete surprise.

With so little known in advance of a deposition, how does one prepare for a deposition in an Illinois divorce?

What Is A Deposition In An Illinois Divorce?

“Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.” Ill. Sup. Ct. R. 202(a)

Literally anyone can be deposed so long as they can communicate what they remember.

“A witness is competent to testify in a deposition if he or she has the capacity to observe, recollect and communicate the matter as to which he or she is called to testify.“ Tzystuck v. Chicago Transit Authority, 529 NE 2d 525 – Ill: Supreme Court 1988

The party taking the deposition must indicate what kind of deposition it will be: discovery deposition or evidentiary deposition.

“The notice, order, or stipulation to take a deposition shall specify whether the deposition is to be a discovery deposition or an evidence deposition. In the absence of specification a deposition is a discovery deposition only.” Ill. Sup. Ct. R. 202(a)

Discovery depositions will be a series of questions designed to learn more and to lead to other discovery requests. Discovery depositions are not for the purpose of getting the witness’s testimony “on the record.” So, the questions can be leading, loose and conversational.

“The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under crossexamination.” Ill. Sup. Ct. R. 206(c)(1)

Evidentiary depositions are to get someone on the record who may not be available on the date of the trial (usually due to health issues or because they’re a busy doctor). Because of the final nature of an evidentiary deposition, the questions must be conducted with all the same evidentiary rules a courtroom trial would have.

“In an evidence deposition the examination and cross-examination shall be the same as though the deponent were testifying at the trial.” Ill. Sup. Ct. R. 206(c)(2)

Preparing For A Deposition In An Illinois Divorce

The first thing you must do when receiving a notice of deposition is check to see if they really want testimony or they just want the production of documents. Notices of deposition and Subpoenas Deuces Tecum (notices of deposition for non-parties) often include a rider that requests documents and excuses the deponent’s presence if those documents are produced.

“The notice, order or stipulation to take a deposition may specify that the appearance of the deponent is excused, and that no deposition will be taken, if copies of specified documents or tangible things are served on the party or attorney requesting the same by a date certain. That party or attorney shall serve all requesting parties of record at least three days prior to the scheduled deposition, with true and complete copies of all documents, and shall make available for inspection tangible things, or other materials furnished, and shall file a certificate of compliance with the court.” Ill. Sup. Ct. R. 204(a)(4)

You are also welcome to discuss with the opposing side any agreed rules for the deposition. A polite letter saying “we won’t discuss each other’s mothers” will be held to be a stipulated agreement if accepted.

“If the parties so stipulate, discovery may take place before any person, for any purpose, at any time or place, and in any manner.” Ill. Sup. Ct. R. 201

It is difficult to prepare a deponent for questions that are unknown except to assure them that the deposition questions will likely be the same questions at trial. So, at least the questions at trial will be known.

Beyond that, instruct the deponent to pause before answering each question, request that the question be rephrased if there is any confusion and answer honestly and succinctly.

Objections During A Deposition In An Illinois Divorce

“Objections at depositions shall be concise, stating the exact legal nature of the objection.” Ill. Sup. Ct. R. 206(c)(3)

All of the objections will be included on the transcript for possible review by the court.

“Objections made at the time of the examination to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, or to the conduct of any person, and any other objection to the proceedings, shall be included in the deposition.” Ill. Sup. Ct. R. 206

Discovery depositions have a broad scope. The deposer can ask almost everything.

“[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things, and the identity and location of persons having knowledge of relevant facts.” Ill. Sup. Ct. R. 201

If you don’t make the objection, the deposer can ask the deponent the question…and get an answer.

“Objections to the form of a question or answer, errors and irregularities occurring at the oral examination in the manner or taking of the deposition, in the oath or affirmation, or in the conduct of any person, and errors and irregularities of any kind which might be corrected if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.” Ill. Sup. Ct. R. 211

Don’t worry, though. If you forget to object during a discovery objection, the deposer cannot simply bring the deposition transcript to court and bring up the objectionable question again.

The use of discovery depositions at trial are only to catch people in a lie. Not to introduce otherwise objectionable evidence. Discovery deposition transcripts can only be used “(1) for the purpose of impeaching the testimony of the deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness;(2) as a former statement, pursuant to Illinois Rule of Evidence 801(d)(2);(3) if otherwise admissible as an exception to the hearsay rule;(4) for any purpose for which an affidavit may be used” Ill. Sup. Ct. R. 212

So, the questions from a discovery deposition will be asked again at trial and you will be allowed to object to them at trial. This is an enormous advantage to you, the non-deposer, as you can actually prepare your objections at trial instead of hoping you can remember all the objections on the fly.

The big exception is if the deponent in a discovery deposition disappears, the whole discovery deposition transcript can be used at trial…including all the unobjected to answers.

“[U]pon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is not a controlled expert witness , the deponent’s evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties.” Ill. Sup. Ct. R. 212

If the deposition is really going off the rails, you can simply say “I move to terminate and or limit this examination.” You can take your ball and go home. Upon a showing of the conduct of the deposition via transcript, the judge can cancel all future depositions or limit the questions as the judge finds appropriate.

“At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in any manner that unreasonably annoys, embarrasses, or oppresses the deponent or party, the court may order that the examination cease forthwith or may limit the scope and manner of taking the examination as provided by these rules.” Ill. Sup. Ct. R. 206(d)

Finally, a deposition in an Illinois divorce can be cut off after 3 hours.

“No discovery deposition of any party or witness shall exceed three hours regardless of the number of parties involved in the case, except by stipulation of all parties or by order upon showing that good cause warrants a lengthier examination.” Rule 206 – Method of Taking Depositions on Oral Examination, Ill. Sup. Ct. R. 206(e)

What Objections Are Allowed During A Discovery Deposition In An Illinois Divorce?

There are two types of objections during a discovery deposition: objections which call for the deposer to rephrase the question and objections which allow you to instruct your client not to answer the question.

An attorney taking a deposition has great leeway in asking questions which may be designed to elicit answers which can be taken out of context and possibly impeach the witness at trial. These questions can be vague, compound, argumentative or a question within a question.

The point is that a question that is confusing can be objected to for the purpose of restating the question in a way that the deponent, the opposing counsel and anyone else could adequately understand.

The Federal Courts are lot stricter about evidence than Illinois courts are. Furthermore, the Illinois Rules of Evidence are based on the Federal Rules of Evidence. The Honorable Steven C. Seeger has a standing order in which he outlines the only acceptable objections in a deposition. This list is a great example of objections which call for rephrasing the question.

“(1) leading (not sure why Judge Seeger included this as it doesn’t apply in depositions);
(2) vague;
(3) ambiguous;
(4) argumentative;
(5) lack of personal knowledge;
(6) lack of foundation (this is really the objection “vague”);
(7) calls for speculation (while not appropriate, speculation is pointless unless it’s harassing);
(8) calls for a legal conclusion;
(9) assumes facts not in evidence;
(10) misstates the facts, or the testimony;
(11) hearsay;
(12) compound;
(13) the document speaks for itself

As a reminder, even after the objection, the attorney conducting the deposition may rephrase the question but he or she is not required to. The deponent must answer even if the answer would be speculation or hearsay. Those answers are not evidence…yet. Again, the point of a discovery deposition is to learn more.

Some objections while common in trial are not applicable in an Illinois deposition.

Leading questions are allowed in a discovery deposition. “The deponent may be questioned by any party as if under crossexamination.” Ill. Sup. Ct. R. 206(c)(1)

The objection “asked and answered” is not applicable during an Illinois deposition because the point of that objection is to ensure that time is not wasted. There’s a 3 hour time limit to an Illinois deposition. The attorney conducting the deposition can waste his or her own time if that is their prerogative. Furthermore, to discovery what the attorney is looking for, it may take several repetitive questions.

For the same reason, “relevance” is not a viable objection during an Illinois deposition. Discovery depositions are supposed to cast a wide net in order to discovery relevant information “The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules.” Ill. Sup. Ct. R. 206(c)(1). Questions that have no relevant basis to the case at hand merely waste the deposer’s 3-hour window.

The objection “calls for speculation” is also usually not applicable during an Illinois deposition. Speculation is inherently irrelevant. Anything speculative didn’t happen. So, let the questioner waste their time on matters which will not be admitted at trial.

Of course questions that are asked and answered, irrelevant or speculative may, in fact, be intended to harass and, if so, the deponent’s attorney can move to terminate the deposition and simply walk out and wait for the judge’s opinion regarding those questions.

In stark contrast to these “please be nice” objections during a discovery deposition, there are some questions in which an attorney can instruct a deponent-client to refuse to answer the question.

“When information or documents are withheld from disclosure or discovery on a claim that they are privileged pursuant to a common law or statutory privilege, any such claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced or disclosed and the exact privilege which is being claimed.” Ill. Sup. Ct. R. 201(n)

Privileged communication is any communication that occurs between an attorney-client, physician-patient, therapist-patient, husband-wife, clergy-practitioner, or any self-incriminating statement.

If the deponent’s attorney has “objections to the questioning during the deposition, he should state, “I’m not allowing my client to answer based on the Judge’s ruling” and certify the question to the circuit court.” Badea v. Phillips, 906 NE 2d 615 – Ill: Appellate Court, 1st Dist., 1st Div. 2009

The Illinois divorce judge can later determine if the refusal to answer was appropriate or not.

After the refusal and certification of the question, the show must go on. “If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer.” Ill. Sup. Ct. R. 219(a)

If it is found by the Illinois divorce judge that the deponent should have answered the certified question, the deponent and/or the deponent’s attorney may be subject to sanctions.

The End Of A Deposition In An Illinois Divorce

At the end of the deposition, the questioner will ask the deponent’s attorney, if they have any questions for the deponent.

The deponent’s attorney should never have questions for their own client. They can ask their own client questions privately and the questions and answers will then be protected via attorney-client privilege.

The only exception to this is if undisclosed lay witness testimony has arisen and you want to give the opposing side notice thereof. You can do so via questioning your own witness.

“For each lay witness, the party must identify the subjects on which the witness will testify.” Ill. Sup. Ct. R. 213(f)(1)

The transcriptionist (there’s always a transcriptionist) will then ask if the deponent wishes to “waive signature.” This is a last chance for the deponent to review the transcript for any errors on the transcriptionist’s part. It will cost you to do this review and is not a free copy of the transcript.

“Unless signature is waived by the deponent, the officer shall instruct the deponent that if the testimony is transcribed the deponent will be afforded an opportunity to examine the deposition at the office of the officer or reporter, or elsewhere, by reasonable arrangement at the deponent’s expense, and that corrections based on errors in reporting or transcription which the deponent desires to make will be entered upon the deposition with a statement by the deponent that the reporter erred in reporting or transcribing the answer or answers involved.” Ill. Sup. Ct. R. 207(a)

If signatures are waived, the transcriptionist will ask if anyone wants to order the transcript. The deponent is allowed to request a copy of the transcript but they must pay for it.

“Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition transcript to any party or to the deponent.” Ill. Sup. Ct. R. 208(c)

Depositions are fun! Depositions are a rehearsal for trial with almost no immediate consequence. During a deposition you will finally get to hear your opposing side’s theory of their case in full. After a deposition you will either realize the weakness of your case and settle or you will realize the strength of your case and prepare for trial. Either option is better than the unknown you experienced before the deposition.

If you’d like to discuss your upcoming deposition, contact my Chicago, Illinois family law firm to speak with an experienced Chicago divorce attorney.