Trials and Depositions: The Rules are Different

By R. David DePuy

The rules regarding the examination of witnesses at deposition are vastly different from the rules at trial, and while the COVID-19 epidemic is changing the way we do depositions from in person to video, the rules of how deponents are examined have not changed.  When an objection is made at trial, the court will direct the witness not to answer the question until the objection is ruled upon.  If the objection is found to be valid, the witness is directed not to answer the question. Different rules apply at deposition where witnesses generally must answer questions whether objections are made or not.  The practice at deposition is that lawyers need not interpose objections to questions, except as to the form of the question, because, except in limited circumstances, the person being deposed must answer the question anyway, whether an objection is made or not.  Thus, at deposition where a witness is being examined by one lawyer, the opposing lawyer may object on the basis that the question seeks hearsay testimony, or that the matter is irrelevant, or that the question calls for a conclusion, or calls for an opinion, or seeks personal information of the witness, or is immaterial, etc.  Despite those objections, the witness must answer and will be told by the lawyer making the objection: “You may answer.”  Thus, at deposition a witness may be required to answer some questions that he or she would not be compelled to answer at trial.

There are certain objections that must be raised at deposition, or they will be lost, such as when the objection asserts that a question is leading or is phrased in a way that could be corrected by the lawyer asking the question.  If the opposing lawyer has an objection based upon the “form” of the question, then that objection as to form must be raised at deposition so that the lawyer examining the witness is given the opportunity to rephrase the question and ask it properly.  But even if an objection is made, the deponent must answer.  With limited exceptions, all other objections are preserved and may be raised at trial.

In a Law and Order episode, the prosecutor, Jack McCoy, was talking to his associate, Claire Kincaid, about her upcoming deposition and explaining that she might be asked certain questions likely to elicit harmful testimony by her.  The response by Claire Kincaid was: “Well, you’ll just object.”  McCoy’s reply to her was: “But Claire, you know you have to answer the question anyway.” That, in fact, is the general rule.

There are a limited number of objections at deposition which, when made, can be followed by an instruction by the client’s lawyer directing the client not to answer.  Thus, objections based on privilege, such as the attorney/client privilege, the Fifth Amendment privilege or the doctor/patient privilege, may be raised at deposition and a lawyer may instruct the client or possibly warn a witness not to answer on that basis.  There are, generally speaking, only three bases on which a lawyer may instruct a witness, usually his or her client, not to answer a question at deposition.  Those three bases are:

  1. Privilege.
  2. In support of a court order, such as an order to protect trade secrets or to limit inquiry into certain past conduct or other limitations previously imposed by the court.
  3. An objection made in support of a motion.  Such objections are usually made to a certain line of questioning on the basis that opposing counsel is badgering the witness or humiliating the witness or improperly examining the witness to such a degree that the lawyer instructs the witness, or his or her client, not to answer and interrupts the deposition, or at least that line of questioning, and thereafter files a motion with the court to preclude the continuation of the deposition, or that line of questioning, because the questioning is being pursued in an improper fashion or for an improper reason.  Such motions are seldom filed and opposing lawyers, after some saber rattling, normally come to an agreement limiting the questioning.

Thus, the rule in general is that witnesses at deposition must answer all questions they are asked, even if the opposing lawyer objects.  The objection is simply noted on the record and the client or witness is then instructed to answer the question.  This means that, especially in divorce cases, some very personal questions may be asked of the parties or of witnesses.  Thus, clients, and to some extent witnesses, should be prepared to have to respond to some intrusive questioning at deposition.   Therefore, a party to litigation should be prepared to undergo some unpleasant questioning, especially in divorce litigation, where just about anything may be the subject of inquiry.

How to Handle Your Parenting Plan During COVID-19

By Jacqueline A. Leary (Botchman)

Taking care of your child during a pandemic is difficult enough without the added factor of co-parenting with your ex-spouse. This is putting aside the fact that in addition to being a mother or father, you have also become your child’s teacher. But what avenues do you take if your spouse refuses to abide by social distancing guidelines? Is a letter from your child’s pediatrician stating that he/she should remain in one home enough to change a parenting plan? The answer to this question is likely, no. Also, what do you do if your ex-spouse refuses to enforce the home schooling requirements provided by your child’s school district? Is the lack of ability of one parent to promote learning through the use of technology enough to change the parenting plan? Again, the answer is likely no.The effect of COVID-19 on the Circuit Court – Family Division.

On March 11, 2020, the World Health Organization declared COVID-19 a pandemic due to its severity and rapid global spread.

The Governor of New Hampshire issued an executive Stay-At-Home Order, which went in to effect on March 27, 2020. This Order closed all nonessential businesses. “We can’t stress this enough – you should stay at your house unless absolutely necessary,” Governor Sununu said in a statement on Twitter.  “Of course, we won’t prevent you from leaving your home to go for a walk, or when heading to the store for groceries, or going to an essential job.” Id.  This Order is currently in place until May 4, 2020.

The New Hampshire Supreme Court issued an Order in regard to the New Hampshire Circuit Courts, suspending in-person hearings, with the exceptions of certain cases, through May 4, 2020 and/or the last day of the Declared State of Emergency. See N.H. S.C. Order, Renewed and Amended Order Suspending in-Person Court Proceeding Related to New Hampshire Circuit Court and Restricting Public Access to Courthouse (March 27, 2020) (“Order Suspending In-Person Hearings”).  This Order expressly does not prohibit court proceedings by telephone, video, teleconferencing, email or other means that do not involve in-person contact.” Id. at § 15.

Nothing in the Governor’s Executive Order or the Supreme Court’s Order prevents parents from complying with their parenting plan.  Therefore, in absence of an emergency to your child’s health, safety, or welfare parenting time exchanges should proceed as schedule.

Does social distancing requirements override a Court Order?

Likely, no.  It is challenging to create an effective social distancing plan for a child when his or her parents are divorced or separated, especially when the child is going back and forth between two households.

So far, in New Hampshire, the family courts have said that parents should follow existing court orders and that the social distancing requirements alone are not an emergency that justifies changing present parenting plans. Disobeying a court order or withholding visitation during this time will not be tolerated and may even result in contempt of court and sanctions, like attorneys’ fees.

If you have valid concerns about the health, welfare, and safety of your child, then you should try communicating with your ex-spouse to what arrangement you can meet voluntarily to reduce risks to your child. If this avenue does not work, then you should seek guidance of a family law attorney. Most family law attorneys are still available by e-mail, phone, and through video-conferencing, such as Zoom.

The New Hampshire Circuit Court – Family Division is closed to the general public, but will be open for individuals filing for emergency relief and for a few other limited purposes. The Supreme Court’s Order Suspending In-Person Hearing outline a few exceptions, including, but not limited to:

  • Requests for orders of protection for domestic violence under RSA 173-B, stalking under RSA 633:3-a and juvenile abuse under RSA 169-C:7-a, and hearings on such orders.
  • Requests for child-related emergency orders in divorce/parenting cases under RSA 461-A and hearings on any emergency relief ordered.
  • Temporary hearings in divorce/parenting cases.
  • Hearings on the establishment or modification of child support.
  • Division for Children, Youth and Families’ requests for emergency orders and hearings on such orders, as well as other hearings in RSA 169-C cases if children are in out-of-home placement.

Although the Family Courts encourage frequent and regular contact with both parents and will not condone withholding visitation, if your child’s health is truly at risk, a judge may intervene.

A New Hampshire Court may grant ex parte and emergency relief when it appears that “immediate and irreparable injury, loss, or damage shall result to the applicant, the children, or the marital estate before the other party or attorney can be heard.”  Family Div. R. 2.9(B); accord RSA 458:16, II(a); RSA 461-A:9, I.

An example of such an emergency is if one parent is following strict precautions to keep a high-risk child safe from COVID-19, like self-isolation and working from home, while the other parent has COVID-19 or has been exposed to someone with confirmed COVID-19. A Judge may find that it’s in the child’s best interests to modify visits for a limited period of time and schedule make-up visits for a later date.

Parents should continue to abide by their parenting plans, adhere to all of the recommended guidelines and health practices, and only seek emergency modification of their parenting plan if “immediate and irreparable injury, loss, or damage” will result, such as an actual risk to your child or exposure of your spouse is confirmed.