The case was filed in June by the single named plaintiff, with Merrill and several other named plaintiffs later added. Thus, the Company argued that it would be improper for these lawyers to depose i. Maybe because her lawyers did not act in her mind with sufficient alacrity in prosecuting the case was why Ms. Merrill settled. That does not matter. To me, this proposed action is one of desperation by plaintiff counsel. I concur as well that, ethically, there are boulder-like problems and obstacles to allow this.
That should not, however, detract from the fundamental issue at stake here—whether these clearly non-exempt workers were compelled to work way beyond forty hours without overtime. This website uses cookies to improve your experience. By continuing to browse our website you consent to our use of cookies as set forth in our Cookie Policy.
I have picked a few of the highlights that I have found important in my practical experience over the past twenty years as a personal-injury trial lawyer. When you get the notice of deposition for your client, check it for defects in the notice, especially if there is a demand to produce documents or other things at deposition.
You must personally serve an objection three days before the deposition plus 5 if by mail , otherwise the defect is waived. Code Civ. Typical defects to look for include: the notice is untimely; the deposition is set at an improper venue; and objections lie as to documents requested to be produced.
Remember a deposition notice with request for documents is a second bite at the apple of document production. You may have properly objected to certain documents in a Request for Production of documents.
You may waive that objection at the deposition. Carter v. In addition to checking for defects in the notice, always check to see if the deposition notice correctly states the intent to videotape the deposition. If your client is to be videotaped, it underscores the importance of why you told them in your office that they should dress as though they are attending the funeral of a Republican senator.
No tube tops exposing more than should be, no bling, no wife-beaters displaying lightning-bolt biceps tattoos and backwards-turned ball caps. You get the picture. A common question among newer lawyers is: can the adjuster attend the deposition? It gives them a firsthand opportunity to evaluate my client and me.
On the flip side of the coin, your client may need a comfort person to assist them at the deposition. A child will need a parent, an adult may need a friend, a service animal may be required. Address such issues well in advance of the deposition with opposing counsel and write really nice, polite meet and confer letters which may become exhibits in law and motion. Another common question concerns deposition priorities. Does first noticed invariably mean first deposed?
It need not. There is no priority of depositions set forth in the Discovery Act based solely on who sent out notice first. Counsel should cooperate to take depositions out of order if needed.
Defense counsel may want to wait to depose your client until all medical treatment is finished, which may be several months. That should not keep you from deposing liability-only witnesses. With a trial date set one year from filing, there is no reason to delay the progress of the litigation until your client can be deposed. Again, be nice in those meet and confer letters. An attorney should delay a scheduled deposition only when necessary to address scheduling problems and not in bad faith.
Because you spent sufficient time with your client in the calm and safe atmosphere of your office, they know how to respond to questions in the deposition. Inform them not to get chummy with defense counsel. Inform them that there is nothing they can say to help their case or to convince defense counsel that their claim is meritorious. They must not answer questions rapidly, as though it were a verbal tennis match. They must pause before answering to give you time to interpose an objection.
Tell them that an objection can be a warning sign alerting them to a trick question or a problem area of the case. They must not elaborate, they must not verbalize their chain of thought as they search their memories in an effort to respond to the question. For example: Do you know where you were going? I remember I had just stopped at the liquor store to get a fifth of Grandad and some smokes, I had been trying to quit all week and my nerves were fried, I could hardly concentrate on traffic, well, anyways For example: What is your best estimate as to how many times you saw the chiropractor?
In an auto-accident case, it is imperative that your client give wide estimates on time, speed and distance so the defense accident-reconstruction expert cannot pin them down. Imagine the day your client will be asked the same question in front of a jury.
With respect to any records you review with your client before the deposition, be careful if you have your client review any documents that refresh their recollection about relevant issues in the case.
If they testify that they reviewed the document s and it refreshed their recollection, you will have to produce the document and that could include otherwise privileged or non-discoverable documents.
Just how far that goes is up to your judge. Who wants to find out? See Kerns Const. Southern Calif. Gas Co. Peil 3rd Cir. American Motors 8th Cir. Also let them know they can ask for as many breaks as they want after they answer any pending question. Responding that they do not understand a question is helpful to the client who is afraid of being tricked by a slick defense lawyer.
If they are getting tired, or if they want to speak with you in the hallway, they should ask for a break to steady their nerves and pull themselves together. This allows them to confer with you if they feel the need for guidance and to get reassurance on how they are doing.
Tired clients who are nervous and anxious to get the ordeal over with tend to shoot themselves in the foot. Let your client know you will prevent any abuse of this leeway and be alert to defense counsel trying to browbeat a response from your client. If you do not, you can spend your depo prep time on explaining to your client why they should not pursue their case.
They can do They pay for doing their pre-accident activities with discomfort, heating pads, pain medications, resting, etc. From the Alpha male fireman-peace officer-ironworker playing with their kids in the park to old ladies carrying groceries and over-worked soccer moms lugging lacrosse equipment, our clients are doing physical things out in the open that will destroy their case at trial when a surveillance videotape is juxtaposed with their deposition testimony about their physical limitations.
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