Depositions in California

Depositions in California are the topic of this blog post.

Depositions in California are authorized by Code of Civil Procedure section 2025.010 which states in pertinent part that, “Any party may obtain discovery … by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.”

A party involved in litigation in California can take the deposition of any other party including adverse parties or co-parties. Parties can even take their own depositions so that they can have a record of their testimony in the event they are unavailable to testify at trial.

Depositions can also be taken of current officer, director, managing agent, or employee of a party pursuant to Code of Civil Procedure section § 2025.280: “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify…”

Depositions in California have some very unique advantages compared to other forms of discovery as well as some disadvantages which will both be discussed in this article.

Code of Civil Procedure § 2025.220 states that a party that wants to take the oral deposition of another party must give notice in writing and the notice must contain certain required information.

A plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date. See Code of Civil Procedure § 2025.210.

A defendant may serve a deposition notice without leave of court at any time after that defendant has been served, or has appeared in the action, whichever occurs first.

Special notice requirements apply to the taking of a deposition of a corporation or other fictitious entity which is known as a deposition of person most knowledgeable or PMK deposition.

Code of Civil Procedure § 2025.230 states that, “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”

A recent California Court of Appeal case stated that “[t]he purpose of this provision is to eliminate the problem of trying to find out who in the corporate hierarchy has the information the examiner is seeking. E.g., in a product liability suit, who in the engineering department designed the defective part?” See Maldonado v. Sup.Ct. (ICG Telecom Group, Inc.) (2002) 94 Cal.App.4th 1390, 1395.

And a deposition notice is sufficient to compel a party or “party-affiliated” witnesses to produce books, records or other materials—including electronically-stored information—in their possession at the time of deposition … as long as the notice of deposition specifies with reasonable particularity the materials or category of materials (including any electronically-stored information) they are to produce. See Code of Civil Procedure § 2025.220(a)(4).

ADVANTAGES OF DEPOSITIONS:

  • Obtaining evidence from individuals or entities that are not parties to the action. A deposition is the only discovery method authorized by California law that permits you to obtain testimony, documents, electronically stored information, and other evidence from an individual or entity that is not a party to the action. See Code of Civil Procedure §§ 2020.010 through 2020.510.
  • Locks in testimony of opposing parties and possible unfriendly witnesses. Depositions are usually the best way to lock in the testimony of unfriendly witnesses and opposing parties.
  • Allows for personal observations of the witness. The attorney has an opportunity to personally observe the deponent in an examination setting and assess his or her potential effect on the trier of fact if the case goes to trial. And if the deposition is videotaped there is an additional advantage in that the trier of fact may also observe the demeanor of the witness during their deposition.
  • Obtain spontaneous responses. Your attorney can elicit more spontaneous and complete answers to his questions than with interrogatories because the witness’ responses are less likely to have been rehearsed with opposing counsel; and if the witness tries to evade a question or not answer it completely your attorney can immediately follow it with narrower, more precise questions until you are satisfied with the response.
  • No numerical limit to questions. Unlike the numerical limits imposed by California law on interrogatories and requests for admission, there are no limits on the number of questions that can be asked of a witness during a deposition although there is a general 7  hour time limit on the length of depositions for most individuals imposed by Code of Civil Procedure § 2025.290.
  • Defendants may obtain early discovery. If you are the defendant, you can notice a deposition as soon as you have been served with the complaint or appear in the action, whichever occurs first. Code of Civil Procedure § 2025.210(a).
  • Promoting settlement.  If you want to settle the case and your attorney is deposing someone with settlement authority, carefully worded questions supported by documents demonstrating the strength of your case may affect the other party’s confidence in its claims or defenses and help lessen a party’s resolve to bring the matter to trial.

DISADVANTAGES OF DEPOSITIONS

  • Cost. Preparing for and taking depositions may be more expensive than other forms of discovery, in that there are court reporter fees and videographer fees. There are also additional costs for attorney fees for time spent reviewing the file, preparing exhibits, researching legal issues, reviewing prior transcripts, preparing questions, and traveling to and taking the deposition.
  • Inefficient in some cases. Depositions can be inefficient unless sufficient time has been spent preparing for the deposition. Otherwise valuable time may be wasted sorting through facts and documents for the first time during the deposition. A skilled attorney will demand documents and review interrogatory responses to detailed factual questions before taking the deposition.
  • Reveals information to your opponent. You lose the advantage of surprising the opposing party and opposing counsel at trial by revealing the most probable areas of examination at trial and interrogation methods of your attorney, and it can also stimulate opposing counsel to prepare for trial more carefully, in that the questions asked by your attorney may reveal previously unknown facts and issues to opposing counsel.
  • Educates witnesses. There is a risk that witnesses who make poor showings at a deposition will learn by their mistakes and be coached to become stronger witnesses at trial. There is also the risk that the witness will disclose grounds for impeachment or weakness in testimony that the opposing party can use at trial.

An experienced attorney that has extensive experience in depositions can analyze your unique situation and determine if the advantages of taking depositions outweigh the disadvantages in your case.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

Limited-scope representation in California

Limited-scope representation in California is the topic of this blog post.

Limited-scope representation in California is also known as “unbundling”, “unbundled legal services”, or “discrete task representation.

The term limited-scope representation refers to a situation where you and an attorney agree that they will handle some parts of your case and you will handle the other parts.

This is very different from the more traditional arrangements between attorneys and their clients where an attorney is retained to provide legal services on each and every aspect of a case from start to finish.

EXAMPLES OF LIMITED-SCOPE ARRRANGMENTS

You can just consult an attorney and get legal information and advice about your situation when you need it.

You can hire the attorney lawyer to represent you only for certain issues in your case (like representing you at a hearing) while you do the rest yourself.

You can hire the attorney to prepare the legal documents but file them yourself and represent yourself in court.

You can hire the attorney to coach you on how best to represent yourself in court as well as help you prepare the evidence that you will be presenting in court.

You can hire the attorney to assist you with the more complicated parts of your case, such as discovery and legal research while you do the easier tasks yourself.

When you cannot afford to pay for an attorney to handle your entire case, limited-scope representation can be an excellent way for you to have legal help with your case while keeping costs down.

And the Courts in the State of California approve of limited-scope representation because they want to encourage people to get as much legal assistance as they need to protect their rights.

The Courts favor limited-scope representation because they know that you will do a much better job of following proper court procedures and presenting the important information in court if you have the help of an attorney during the more complicated parts of a case.

BENEFITS OF USING LIMITED-SCOPE REPRESENTATION

The benefits of using limited scope representation include but are not limited to:

  • You can save money on legal fees because you are only paying an attorney to do those parts of your case that you cannot do yourself.
  • The attorney can use his or her time more efficiently by focusing their attention on the tasks that you cannot effectively do yourself while leaving other more time-consuming tasks to you.
  • You can keep greater control of your case than if the attorney handles the entire case.
  • You may be able to recover some or all of the fees that you paid to the attorney in certain situations such as a contract dispute where the prevailing party is entitled to be awarded their attorney’s fees.

Before deciding whether or not to hire an attorney using a limited-scope arrangement it is a good idea to:

Discuss your case with an attorney in detail, including areas that you want to handle yourself. If you do not discuss the entire case with the attorney, even the parts that you think are simple and want to handle yourself, you will not know if you have overlooked something that is legally important.

Once you have had this discussion with the attorney, you and the attorney can agree on whether a limited-scope arrangement will work for you and your case and you can be comfortable that you have identified any hidden complications.

Decide if you are willing to take on full responsibility for those parts of the case you will handle on your own. Remember that the attorney went to law school and probably has years of experience in this area.  That means that he or she will know things you do not about the legal process.

If you instruct your attorney not to take certain steps, either to save money or because you want to remain in control, you will have the full responsibility for the outcome in the parts of the case you do yourself, even with an attorney coaching you.

CASES THAT ARE NOT SUITABLE FOR LIMITED-SCOPE REPRESENTATION

But, there are many situations when limited-scope representation may not be a good idea, such as situations where your case has a lot of technical issues such as

  • Malpractice cases.
  • Construction defect cases.
  • Cases involving conflicting claims to real estate.
  • Employment discrimination or wrongful termination cases.
  • Cases where you do not have enough time to spend educating yourself and effectively performing many of the tasks that you need to do.
  • Cases where there is a lot at stake such as a case where if you lose, you could lose your home, or owe a lot of money.
LIMITED-SCOPE REPRESENTATION VS. REPRESENTING YOURSELF

In certain situations, limited-scope representation is a better alternative than representing yourself:

  • Having an attorney helping you with parts of your case can save you a lot of time and energy because the attorney can educate you about the process and your specific issues. He or she can also help you find self-help books and other resources so you can handle the parts of the case when you are on your own.
  • An attorney, by being more removed from your case than you are, can see things about your case that you cannot. An attorney can help you focus on the legal issues and on what the court can do for you, and not let yourself be distracted by other issues and emotions.
  • An attorney can identify potential problems or hidden complications early on, so you can avoid making a costly mistake.

You and the attorney should have an in-depth discussion about all the aspects of your case, and agree on your respective responsibilities and certain important issues such as:

  • Who will decide on the strategy for your case?
  • Who will gather what information?
  • Who will prepare the information for the court?
  • Who will draft documents for the court?
  • Who will appear at court proceedings and settlement conferences?
  • Who will negotiate with the other side?

In making decisions about these issues, remember that the attorney has the education and experience to work on the more technical parts of your case, guide you throughout the court process, and spot important legal issues that you may not see on your own.

You and the limited-scope attorney will be working as a team on your case however it is still your case. If you and the attorney cannot agree on who should take on which parts of the case, or on specific decisions that need to be made in your case, you should listen to what the attorney says.  If the attorney feels strongly that the course you want to take is not in your best interests, listen carefully to the reasons why he or she is recommending you do something differently.

But, in the end, it is your case, your decision and your responsibility. You have the right to disregard the attorney’s advice, but if the case does not turn out the way you hoped, you have to be willing to accept the responsibility for your decision.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com