The great depositions debate

12 November 2019

Last week, I attended the American Academy of Matrimonial Lawyers (AAML) National 2019 Annual Meeting in Chicago, where I spoke on “Discovery beyond our borders: gathering information in international cases” alongside Sarah M Boulby, Boulby Weinberg LLP from Toronto; Rachael Kelsey, SKO Family Law Specialists, from Edinburgh; Mia Reich-Sjogren from Gothenburg; and Alfonso Sepulveda from Mexico City.
 

In the short time available, we touched upon a whole raft of procedural similarities and differences and ways of trying cases. I can safely say that top of the list of differences between England and Wales on the one hand, and the US on the other is the use, or not, of depositions.

For the English family lawyer, a deposition is something that we come across extremely rarely, if ever, and it will typically concern a request from an overseas judge for a witness to be deposed formally and their resulting sworn evidence to be used in overseas proceedings. For the US family lawyer however, my understanding is that either party can put in an application to have the other party’s evidence tested orally, i.e. on oath with his or her lawyer present, to be questioned about any perceived inaccuracies and/or deficiencies in their evidence.

It is not that we do not do discovery in England and Wales, on the contrary it may be that we pursue it to such an extent that we do not feel the need to test the evidence orally, certainly before the Financial Dispute Resolution (FDR) appointment, i.e. the court appointment mandated for the parties to come to court ready to negotiate and make every effort to settle the case. If that is the end result, then testing the evidence orally becomes unnecessary. Of course, if there are omissions in the discovery then not only can they be tested with the court directing the party to answer a comprehensive questionnaire, but both parties will be orally examined at trial, cross examined and re-examined, thereby testing thoroughly the written evidence they have provided. The US family lawyer might, at this stage, point to the inability to gauge the reaction of the witness to the questions, watch his or her body language and degree of ease or otherwise with which they answer the questions in terms of testing veracity and effectively accelerating the negotiation process having given the witness a taste of what life might be like a trial.

The one thing that emerges clearly from all this is that each side of the debate feels very strongly that their methods and processes are most effective in terms of securing the right outcome and there is much we can learn from each other to improve the work we do with clients and opposing counsel alike. It is a subject that bears out much greater debate and one which would not necessarily, be confined to family law.

Further information

We provide advice and assistance to US and other international individuals and corporate entities alike in relation to living and working in England and Wales. Please visit our American services page to find out more and for further information about the great depositions debate as I will be speaking to a number of US family lawyers over the coming weeks to gain more of an insight into the use and application of depositions.

If you have any questions about the issues raised in this blog, please contact Jane Keir or a member of our family and divorce team.

About the author

Jane Keir is a family lawyer and partner in the family and divorce team. She advises on the protection of wealth, both pre and post divorce and her breadth of experience both in negotiating discreet settlements and in taking cases to trial, mean that she is much in demand by individual clients and Family Offices alike.

By reason of its emphasis on wealth protection, much of Jane’s work involves an international element and she enjoys working with other lawyers, accountants, actuaries, financial advisers, wealth managers and investigators in order to provide a thorough and comprehensive service to her clients. In addition, she has immediate recourse to all the other leading teams at the firm, including Private Client, Immigration and Real Estate.

 

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