A civil deposition is sworn testimony under oath, often taken in a lawyer’s office or at the offices of a court reporting firm. In a civil deposition, a court reporter takes down everything that is said in the room, later producing a booklet with questions, answers, and objections that reads like a play or a manuscript. A deposition may be videotaped as well, generally if a witness is going to be unavailable at trial or if the attorney noticing the deposition believes the witness is going to lack credibility.
Each deposition is its own separate event, meaning that only one witness can be questioned per deposition. If the witness has an attorney, that attorney will “defend” the deposition. Defending a deposition means objecting to questions posed by the questioning attorney; the artful counselor will also attempt to coach his or her witness as necessary during the course of a deposition, however coaching (or making speaking objections) is expressly forbidden and is to be avoided. Sanctions can issue for the defending attorney who impedes, coaches, or counsels on the record during a deposition proceeding.
The witness being questioned may be questioned by an attorney from one party or many parties, but never multiple attorneys for the same party. More important than the deposition itself is the pre-deposition meeting that occurs between an attorney and his or her client. Attorneys generally know in advance whether a client is going to present as a good witness. The questioning attorney – the attorney who has noticed the deposition – is looking for two things from the witness: (1) the witness’s testimony, and (2) whether the witness will present as credible and sympathetic to a jury. The witness’s appearance and manner are taken into consideration by the questioning attorney, and part of deposition preparation (“depo prep”) is to ensure that all angles, including appearance and manner, have been addressed.
Some witnesses need a lot of preparation time, whether to refresh on facts or to learn to provide concise answers. Lawyers tend to ask very precise questions. One of the biggest mistakes a deponent can make is to try to anticipate where a lawyer is going with a question and to answer “the next question.” Most lawyers are competent enough to ask the next question. Most. A witness needs to answer the question pending and to let the questioning lawyer listen, process, and proceed.
For lawyers, the intent of a deposition is to box the witness’s testimony. Expert witnesses, many of whom have been deposed hundreds of times, tend to engage in a cat-and-mouse game whereby they refuse to commit to a response. While it is primarily younger lawyers who allow witnesses to control the course of a deposition, I have reviewed deposition transcripts by highly respected lawyers who have been in the game for over 40 years (i.e., longer than I have been alive!) who have failed to nail down critical testimony. There is nothing worse than preparing for trial and realizing that you have obtained testimony that is ambiguous and that cannot be used to impeach a witness. The deposition transcript is very expensive kindling at that point.
The legal system is very difficult to navigate without a lawyer. There are numerous deadlines and tricks and traps to avoid. If you are representing yourself and trying to minimize costs, at a minimum it is wise to hire a lawyer for the express purposes of defending your deposition. You need to anticipate that a lawyer is going to need time to review the file, to interview you, to prepare you, and to sit in at your deposition. The preparation time could exceed the actual time that you are testifying under oath, but in my opinion you will find that it is money well-spent and will likely end up saving you a lot more than it costs you.
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While recently browsing around on a web site where current and former clients rate and critique lawyers, I saw a comment that piqued my interest. The lawyer in question was downgraded by the client for charging what was perceived to be an exorbitant fee (around $2,000) to take some written discovery and conduct a deposition. (Written discovery is the process of asking the other side questions in writing that they must answer under oath; generally speaking, written discovery is followed up by verbal questioning under oath, which is known as a deposition. Depositions can run 15 minutes to 15 volumes (days!).)
In the review in question, the client was upset because at trial it turned out that the lawyer only used a small fraction of this discovery at time of trial. There are proper and improper uses of discovery, and discovery is one area in which litigation costs can skyrocket out of control. However, if your lawyer sends out 100 questions and/or requests for documents in written discovery, and takes a 4-hour deposition, your lawyer will probably end up with a large volume of background information that cements the facts of your case, and he/she may unearth have one or two written questions and the same number of deposition passages (per deposition) that are directly put in front of a jury at time of trial. As a lawyer, you are successful if you get one or two written questions and one or two deposition passages (per deposition) that are useful at time of trial.
To me, the criticism of the lawyer in question comes down to an issue of communication between the lawyer and the client. As a lawyer, you oftentimes do not know what is going to be useful as you are going through the discovery process. Your job is to be thorough in collecting information, and then later on review to be thorough again so you can create your case. If a jury saw every piece of paper exchanged in discovery they would walk into court, fall asleep 10 minutes later, and wake up as instructed on breaks and when it is time to go home. At the same time, it is important that a client understand what information is being sought through discovery and how much obtaining the information will cost. Having such an understanding as the case progresses will prevent the feeling afterwards that the lawyer overworked the file, and/or that the lawyer obtained too much useless information. I would argue that no information obtained through discovery is useless, but simply that a cost-benefit analysis should be utilized and if costs are an issue then the information sought must be prioritized.
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Disputes between homeowners and their homeowners associations are often driven by an attorney’s fees clause in the CC&R’s that allows the prevailing party in a case at law to recover his/her/its attorney’s fees. A condition precedent to being able to recover attorney’s fees at law is the requirement that the parties mediate the case before a civil complaint is filed to commence litigation.
Disputes between homeowners and their HOA’s are often contentious and bitter. Lost amidst the acrimony is the hard-to-stomach fact that when a homeowner sues the association, he or she is in effect suing himself or herself! (As well as his/her next-door neighbors, and their next-door neighbors, and so on down the block.) Sometimes the only way for an owner to receive a response from an HOA is to escalate a dispute; likewise, sometimes an association must escalate a dispute in order to garner a response from an owner.
As with most disputes, a dispute between an owner and his/her association is usually not in either’s best interest. As a lawyer counseling HOA’s, my advice generally is as follows:
- Remove any emotion from the dispute and look at it through the black and white prism of the CC&R’s;
- Attend to the homeowner’s complaints at your earliest possible opportunity, even if you find the homeowner to be too much of a squeaky wheel and/or have found that particular’s owners complaints to be merit-less in the past; and
- Mitigate all disputes.
For owners, the only difference in the advice is that all complaints need to be lodged in writing. An owner needs a paper trail in the event that the HOA does not timely respond. But each side in an HOA disputes benefits from removing emotion and mitigating disputes.
As a mediator and litigator, I often see owners or associations attempting to recover attorney fees at the pre-litigation stage. While either side may ask the other for fees as part of a negotiation (because you can ask for anything), neither side is generally entitled to recover fees until a final resolution in a litigation case has been achieved. Therefore, and in the interest of minimizing or de-escalating a dispute, one of the first, best, and easiest things both sides can do is to take attorney’s fees off the table.
Very few cases are tried to their conclusion. Rarely does a trial result in unequivocal victory for one side or the other. A plaintiff may prevail on three of ten causes of action; does this make him or her the prevailing party for purposes of the litigation, or did the HOA prevail because it was successful in defending seven of the ten COA’s? If both sides begin the pre-litigation process assuming they will be responsible for their own fees and costs, and that the likelihood of ever recovering those fees and costs is low, the parties are more likely to enter a given dispute with resolution in mind, and a better opportunity exists for the parties to reach a collaborative conclusion early in the process. Therefore, while attorney’s fees can drive a dispute between a homeowner and his/her HOA, attorney’s fees should not be a primary factor driving an HOA dispute. This is especially true in the pre-litigation and early stages of the litigation process, when fees and costs are presumably still manageable. If parties to an HOA dispute can be reasonable and keep costs and fees down early, they are more likely to successfully resolve their dispute.
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