The use of a Discovery deposition at trial

Discovery is the formal process by which you “discover” information relevant to the case. In a Michigan divorce, custody or family law case, discovery is conducted in three ways.  First, Interrogatories (think Interrogate) which are written questions which must be answered under oath and subject to the felony of perjury.  Second, a Subpoena, which is a court order (typically signed by an attorney) which compels the production of documents or testimony and third, a deposition, which is live testimony conducted outside of court in the presence of a court reporter.


Discovery depositions are important because the testimony is live, allowing for immediate clarification and follow-up questions to challenge evasive or incomplete answers. Furthermore, a discovery deposition provides the opposing attorney to object to questions and cross-examine the witness being deposed, thus protecting the witness.

The testimony procured in a discovery deposition is generally considered hearsay, which is defined by MRE 801(c) as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

MRE 804(b)(5) allows the admission of deposition testimony where (1) the deposed individual is unavailable as a witness; (2) the deposition was “taken in compliance with law in the course of the same or another proceeding”; and (3) “the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”

When seeking to admit deposition testimony at a hearing or trial, “The burden of establishing admissibility [of a deposition] rests on the party seeking admission.” Bonelli v Volkswagen of America, Inc, 166 Mich App 483, 502; 421 NW2d 213 (1988).

However, if inconsistent testimony is provided at a hearing or trial, deposition testimony can be used to attack the credibility of a witness. For example, it is not uncommon for an attorney to ask the question when challenging testimony:  “Do you remember how you testified [differently at an earlier date] . . . is your memory better now or then?

Discovery is often the most important aspect of a case, providing an opportunity to prepare and understand the evidence before a trial or hearing. After all, how can you have a meaningful discussion about the division of the marital estate without understanding what there is to divide? Discovery provides the opportunity to “lock-in” testimony avoiding a trial by surprise.

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Findling Law, PLC – 414 W. 5th St. Royal Oak, Michigan 48067

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I have been exclusively practicing divorce and family law in Michigan for over two decades.  The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles.  We are compassionatecreative and always prepared. We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.That is why we provide more free information on divorce and family law than any other Michigan law firm. We want to help you manage your situation. Allow our exceptional legal team to help you navigate the change in your life, without compromising principles.

By:  Daniel Findling


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