Most divorces don’t have any question of fact. Both parties agree to the basics; how much they earn, what’s in their 401ks, where the kids are registered for school. The final outputs of the divorce, the Judgment, the MSA and the Allocation, may be negotiated but it is relatively rare that the inputs, the facts, are contested.
When there is a dispute over facts in an Illinois divorce (ex: how much money does someone make, were they married before, where the missing jewelry went), then the divorce judge must make a determination as to the facts. This determination of facts will be based on the testimony of the parties to the divorce and/or other third parties.
While documents that confirm or deny allegations are powerful evidence, all alleged facts start as testimony which authenticates later produced documents.
Because testimony is so crucial to the determination of a fact in an Illinois divorce case, no divorce lawyer wants to take that testimony for the first time at trial. Instead, Illinois divorce lawyers have the power to take initial testimony under oath through a deposition.
A deposition allows a divorce lawyer to both gather the information necessary to prove their case and confirm, in advance, what the person would say should the divorce case go to trial.
What Is A Deposition?
A deposition is “[t]he testimony of a witness taken upon interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general law on the subject, and reduced to writing and duly authenticated, and intended to be used upon the trial of an action in court.” Black’s Law Dictionary (10th ed. 2014)
The definition of a deposition is so expansive because depositions are extremely versatile. We’ll work through the many kinds of depositions and how to employ them in this article.
Depositions are a discovery tool. Discovery is the process by which each party to a divorce gathers information in order to settle and or try their divorce case.
The Illinois Supreme Court Rules largely determine the discovery process for an Illinois divorce.
“Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination or written questions” Ill. Sup. Ct. R. 132.
Instructions for depositions: how to schedule a deposition, how to conduct a deposition, how (insert other stuff) are all included in the subsequent rules.
“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
Discovery deposition questions can be about anything. Furthermore, the questions are not limited by all of the Illinois rules of evidence. So, the questions can be leading (ex: “isn’t it true you were at McDonald’s that Friday?”) as is permitted on a cross-examination as opposed to an open-ended direct examination question (ex: “What if anything did you that Friday?”)
“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 cross-examination.” Ill. Sup. Ct. R. 206(c)(1).
This loose question format only applies to discovery depositions. There is another type of deposition called evidence depositions which are rarer and meant to preserve the testimony to be read at trial. The regular rules of evidence apply for evidence depositions. I further discuss the differences between the two types of depositions below.
How Is A Deposition Scheduled In An Illinois Divorce?
Depositions are out-of-court testimony. So, a deposition has to happen somewhere and isn’t tied to the court’s calendar. The Illinois Supreme Court Rules then tell us how we must inform the deponent and/or opposing party of the deposition.
“A party desiring to take the deposition of any person upon oral examination shall serve notice in writing a reasonable time in advance on the other parties. The notice shall state the time and place for taking the deposition; the name and address of each person to be examined, if known, or, if unknown, information sufficient to identify the deponent; and whether the deposition is for purposes of discovery or for use in evidence.” Illinois Supreme Court Rule 206
The first rule of Illinois depositions is that the party requesting the deposition must state if the deposition is for discovery or evidence.
“The notice, order, or stipulation to take a deposition shall specify whether the deposition is to be a discovery deposition or an evidence deposition.” Ill. Sup. Ct. R. 202
The point is that at the end of a deposition, a court reporter will provide a transcript to the parties (after you pay them). This transcript will be attested to and agreed by the parties to be an accurate word-for-word depiction of the testimony and events which occurred at the deposition.
Discovery depositions and their transcripts can be used to contradict and/or supplement testimony at trial.
“Discovery depositions taken under the provisions of this rule may be used only:
(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; or
(5) upon 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(a)
Evidence depositions have a completely different purpose. Evidence depositions will be read (or more likely played as a recording) at trial in lieu of the person’s live testimony.
“The evidence deposition of a physician or surgeon may be introduced in evidence at trial on the motion of either party regardless of the availability of the deponent, without prejudice to the right of either party to subpoena or otherwise call the physician or surgeon for attendance at trial. All or any part of other evidence depositions may be used for any purpose for which a discovery deposition may be used, and may be used by any party for any purpose if the court finds that at the time of the trial:
(1) the deponent is dead or unable to attend or testify because of age, sickness, infirmity or imprisonment;
(2) the deponent is out of the county, unless it appears that the absence was procured by the party offering the deposition, provided, that a party who is not a resident of this State may introduce his or her own deposition if he or she is absent from the county; or
(3) the party offering the deposition has exercised reasonable diligence but has been unable to procure the attendance of the deponent by subpoena; or finds, upon notice and motion in advance of trial, that exceptional circumstances exist which make it desirable, in the interest of justice and with due regard for the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.” Ill. Sup. Ct. R. 212(b)
Discovery depositions have a free-for-all quality where information is asked for in various fashions in order to pin the deponent down to a specific answer. The specific answer will be used to contradict any answer the deponent gives in the future which varies from that answer. So, discovery depositions aren’t informative to a third-party observer.
Evidence depositions have more of a mutual theatricality. The question asker and the question answerer are preserving the record for the consumption of a judge at a later date. Furthermore, the questions for an evidence deposition must in an open-ended style as they would be in court.
Because of this difference, depositions cannot be for both discovery and evidence purposes…unless the parties agree.
“If both discovery and evidence depositions are desired of the same witness they shall be taken separately, unless the parties stipulate otherwise or the court orders otherwise upon notice and motion.” Ill. Sup. Ct. R. 202
Documents In Lieu Of Deposition
Notices of deposition often include a rider of documents the deponent is requested to bring with them. In most depositions, it is the documents that the examining attorney is after not the actual (and usually evasive) testimony of the deponent.
But, people who hold documents are sometimes hesitant to present those documents unless there’s some kind of consequence like sanctions or a deposition.
To address this quirk of human nature, the Illinois Supreme Court Rules specifically provide for a deposition to be stricken if documents are provided in lieu. After all, why sit down and describe documents when you could simply just turn them over.
“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.” Illinois Supreme Court Rule 204(a)(4)
A good divorce lawyer will have already asked for these documents via subpoena and/or a notice to produce. So, the rules allow the examiner to remind the deponent that these items were already asked for and need to be produced.
“A copy of any subpoena issued in connection with such a deposition shall be attached to the notice and immediately filed with the court, not less than 14 days prior to the scheduled deposition.” Ill. Sup. Ct. R. 204(a)(4)
Still, if the examiner wants to depose the deponent, the examiner will depose the deponent no matter how many documents they produce.
“The use of this procedure shall not bar the taking of any person’s deposition or limit the scope of same.” Ill. Sup. Ct. R. 204(a)(4)
How To Object In An Illinois Deposition?
Depositions allow for broader questioning than would be allowed at trial. The point of a a discovery deposition is two-fold: to discovery new information and to secure an official answer from the deponent in order to ensure that answer will not change at trial.
Both of these purposes require a series of almost identical questions in order to extract the answer the examining attorney (lawyer who is conducting the deposition) is looking for. So, a discovery deposition does not have the natural flow of a conversation.
So, the deponent’s attorney or their representative may choose to object to certain questions. Objecting in a deposition does not have clear rules, whereas the rules for objecting in trial are very clear.
“All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure.” Ill. Sup. Ct. R. 201(b)(2)
Despite the fact that brief, leading, cross-examination like questions are permitted at discovery depositions, questions can still be objected to for any reason per the Illinois Rules Of Evidence or those objections will be deemed waived at trial.
“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(c)(2)
Any objection that is made must be as concise as possible, otherwise the objection could be interpreted as coaching the witness on how they should answer.
“Objections at depositions shall be concise, stating the exact legal nature of the objection.” Ill. Sup. Ct. R. 201(c)(3)
Because of this rule, the most common objection at a deposition is as to form.
Evidence depositions are identical to testimony in trial. So, all objections are permitted per the Illinois Rules of Evidence.
Because there are little to no objections during an Illinois deposition, an Illinois deposition can quickly become a venue for bad behavior and harassing questions. The victim of rude, harassing questions can simply call the deposition off at any time if they feel it is necessary.
“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. An examination terminated by the order shall be resumed only upon further order of the court. Upon the demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to present a motion for an order.” Ill. Sup. Ct. R. 206
If you need to depose someone in your Illinois divorce case. Or, if you’ve received a notice of deposition for your Illinois divorce case, please contact my Chicago, Illinois family law firm to schedule a no-obligation consultation with an experienced Chicago divorce attorney.