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Posted by ekjadmin on September 14, 2010
Children are rarely indispensable witnesses in family law cases (but because I use the term “rarely” that denotes that there are in fact times when a child is in fact an indispensable witness). Children are often, however, extremely helpful witnesses for both litigants and the courts. I know because I have deposed children (yes, it can be done).
But you’d be hard-pressed to convince courts in family law cases that a child should be questioned in the discovery process. The e-mail exchange cited below is a real e-mail exchange between opposing counsel and me. Names have been changed to protect the attorney’s and the parties’ respective identities. This exchange distills much of the argument (if you can call it an argument) over child witnesses in family law cases. You tell me who has the better position.
Eric,
Do you think you can get the discovery you are seeking some other way than deposing Robert’s little sister? I would really like to avoid that if possible. I do think it is traumatic to a young child to put her in the middle of a custody case that really does not involve her to begin with.
Let me know,
Thanks,
Mike
What follows is my response to Mike’s e-mail:
Mike:
First, no one can stop me from deposing Robert’s sister. I have a right to depose her under the Utah Rules of Civil Procedure.
Second, in general, whenever anyone tells me not to depose a child and justifies his/her request by claiming that the act of answering questions under oath is “traumatic,” I get so angry I could spit nails. Allow me to explain. Granted:
Ÿ asking a child victim of battery or rape to recount the horrors of the experience is traumatic for virtually every such child; and
Ÿ asking a child of divorcing parents questions in a deposition that amount to asking him/her to “choose sides” can be traumatic.
But Robert’s sister does not fall into either of the foregoing categories.
Asking Robert’s sister questions in a deposition setting—when she is neither a crime victim nor a child of the parents involved in this lawsuit—is simply not traumatic. How do I know this? Because, among other reasons, everyone who tells me that deposing a child (just deposing a child) is “traumatic” cannot tell me why.
Instead, they go all emperor’s new clothes on me and say, “Well, Mr. Johnson, if you don’t know why deposing a child is traumatic, then you’re just stupid,” or “Well, Mr. Johnson, if you don’t know why deposing a child is traumatic, then you’re insensitive,” or “Well, Mr. Johnson, if you don’t know why deposing a child is traumatic, then I’ll never be able to explain it to you.”
Blah, blah, blah. The real reason people don’t want children deposed (crime victims and children of divorcing parents who are asked to choose sides, and the like, excepted) is because children, by their virtue of being young, and thus inexperienced and naïve, have a lot harder time being clever and evasive. People who don’t want children deposed object because a child’s testimony quite often has real evidentiary value that is damaging to the case of those who object to the child’s deposition. We all know I’m right.
I assure you and your client and his sister that my deposition of her will not entail snarling Rottweilers, klieg lights, and being given the third degree under a bare bulb in a dank basement. I am happy to make the deposition of Robert’s sister as comfortable and unobtrusive for her as possible.
Robert’s sister has information that only she has and that is relevant to this case. And if I tell you what information she has and/or what I intend to elicit from her, then you’ll tell Robert (as well you should), and then he’ll tell his mother, and then they’ll tell his sister, and then his sister will either miraculously forget everything she knew or tell a false story. So I won’t be telling you why I need to depose Robert’s sister (I will, however, give you a hint: between Robert, his sister, and his mother, and other witnesses, their stories aren’t consistent).
Eric K. Johnson
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