UPDATED 10/22/2020
Answering Requests for Admissions is very similar to answering interrogatories–you have an obligation to respond in good faith and you have to be careful about your garbage objections. However, the code makes it clear that the requirements in responding to Requests for Admissions are higher.
Continue Reading Answering Requests for Admissions-Beware of the Traps
UPDATED 10/23/2020
Requests for admissions may be used to (1) establish the truth of specified facts, (2) admit a legal conclusion, (3) determine a party’s opinion relating to a fact, (4) settle a matter in controversy, and (5) admit the genuineness of documents. See C.C.P. §2033.010; Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2020), ¶¶8:1288 – 8:1301.2; CEB California Civil Discovery Practice 4th Edition §§ 9:17 – 9:20. However, how to write a request for admission in order to obtain effective evidence or to set up a cost of proof sanction is difficult.
UPDATED 10/22/2020
If you are like most lawyers, you are using the typical discovery devices to gather up all your information–form interrogatories, special interrogatories, requests for production of documents, and of course the deposition schedule from Hell. However, requests for admissions are rarely in a party’s discovery plan. I suggest you take a closer look at C.C.P. §2033.010 et seq. Requests for admissions are wonderful, tricky little discovery devices that really help you set up your case.
Continue Reading Why Aren’t You Using Requests for Admissions
The final installment from George Ellard of The Veen Firm on how to cross-examine a witness to impair their credibility.
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The third in a series of four blogs from George Ellard from The Veen Firm on how to cross-examine a witness to impair their credibility.
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Impeachment by character evidence is the use of a personal trait to impair credibility. There are essentially four methods to impeach using character evidence: defects in perception, defects in recollection, felony convictions and past misconduct.
Continue Reading Impeaching the Witness with Character Evidence
The second of four blogs on how to cross-examine a witness to impeach their credibility from George Ellard of the The Veen Firm.
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Perhaps the most effective and most frequently used form of impairing credibility is proof of a statement or conduct by the witness that is inconsistent with the trial testimony. (Ev. C. § 780(h) (pdf)) The inconsistency need not be a complete contradiction. The test is whether the prior statement is inconsistent in effect with the trial testimony. People v. Spencer (1969) 71 Cal.2d 933 (pdf), 941.
Continue Reading Using Prior Inconsistent Statements and Conduct
George Ellard from The Veen Firm brings the first of four blogs on how to cross-examine a witness to impair their credibility.
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Cross-examination goals essentially boil down to 1) developing facts which support your case, 2) harm the defense case and 3) impair credibility. You must carefully analyze the first two goals before you decide to impair the credibility of a witness.
Continue Reading Cross-Examination to Impair Witness Credibility
In the spirit of my most recent blog, “OBJECTION!! There’s this case that says . . . “, here is a list of proper and improper objections to deposition questions that you should also keep in the back of your legal pad.
OBJECTIONS TO DEPOSITION QUESTIONS
Objections to the form of questions are waived if not raised at the deposition. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721 (citing C.C.P. §2025.460 (pdf)(b)).
Instructing witness not to answer is improper unless objecting on grounds of privilege. CCP §2025.460 (pdf); Stewart v. Colonial Western Agency, Inc.(2001) 87 CA4th 1006 (pdf), 10015.
Speaking objections which counsel explains his rationale for the objection is improper as it is usually used as a tactic to give the deponent a heads up that the area of questioning is dangerous and how he should answer. This is a form of “coaching” the witness and a protective order may need to be sought. See CEB, California Civil Discovery Practice (4th ed. 2010) §6:100.
Have you ever been in a middle of a deposition and found yourself saying “OBJECTION!! There’s this case that says . . . “ but you can’t quite remember what the name was, where you saw it or even where you might find it? And, yet, it is right on point. Well, the following is a list of cases and statutes for depositions that you should keep in the back of your legal pad as they may come in handy.
SCOPE OF DEPOSITION
Discovery is permissible if the information sought is relevant to the subject matter involved and it is admissible or reasonably calculated to lead to discovery of admissible evidence. C.C.P. §2017.010 (pdf)
Admissibility is not the test. Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:68 (citing C.C.P. §2017.010 citing Davies v. Superior Court (1984) 36 C3d 291 (pdf), 301).
Fishing expeditions are permissible. Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:728 (citing C.C.P. §2017.010 citing Greyhound Corp. v. Superior Court(1961) 56 C2d 355 (pdf), 384).
Identity and location of witnesses are discoverable. C.C.P. §2017.010
Existence, description, nature, custody, condition and location of any document, tangible thing, or land or other property is discoverable. C.C.P. §2017.010
“Show me” questions (requesting a deponent to demonstrate an action) at a videotaped deposition are allowed. Emerson Electric Co. v. Superior Court (1997) 16 C4th 1101 (pdf), 1111.
Improper to ask a party to state their legal contentions. Rifkind v. Superior Court(1994) 22 CA 4th 1255 (pdf), 1259. This is because legal contentions are developed by the lawyer. The proper discovery device to find out about legal contentions are interrogatories.
Documents reviewed to prepare for deposition are discoverable. International Insurance Co. v. Montrose Chemical Corp. of California (1991) 231 CA3d 1367 (pdf), 1372-73. However, privileged documents do not lose their privileged status (Sullivan v. Superior Court (1972) 29 CA3d 64 (pdf), 68), unless the witness claims no present memory of the events recorded in the statement given to his or her attorney and uses that statement to testify. Kerns Const. Co. v Superior Court (1968) 266 CA2d 405 (pdf), 410.
CONDUCT DURING DEPOSITION
Team questioning not per se abusive. Rockwell International Inc. v. Pos-A traction Industries (9th Circuit 1983) 712 F2d 1324, 1325–applying California Law. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:718.1
Coaching the witness during deposition not prohibited. Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721. However, Hall v. Clifton Precision (ED PA 1993) 150 FRD 525, 528 (decided under Federal Rules) states that “[o]nce a deposition begins, the deponent must be left “on his or her own.”
Deposition officer may not suspend taking testimony unless there is a stipulation of all counsel or the deposition is suspended for a party to seek a protective order. C.C.P. §2025.470 (pdf).
NEXT: DEPOSITONS–What are the Real Objections?
The absence of a reasonable expectation of confidentiality in the content of an independent witness’ signed or recorded verbatim statement precludes a finding of work-product protection. That is what Petitioner Debra Coito’s Answering Brief on the Merits states in the case of Coito v. Superior Court (2010)182 Cal. App. 4th 758 (pdf) which is currently pending in the California Supreme Court.