— by Dana Heyde
Over the years, I have taken many depositions and can honestly say that most people did not like having their deposition taken. I completely understand their position.
Under the California Code of Civil Procedure, I can set the deposition of anyone who has information relevant to an active case. The Deposition notice commands that anyone with knowledge of the case matter must appear and answer questions in an informal setting. Usually depositions take place in the office of the lawyer who set the deposition and they can last anywhere from an hour to several days, depending on the amount of information that the attorney wants to ask the deponent. In cases where there are multiple parties, each of their attorneys is permitted to ask questions to the deponent.
The Deposition and accompanying Subpoena have the full force of a court order, so the person must attend when and where I specify. Deponents (witnesses) are entitled to only a minimal fee for their attendance and only those identified as experts will be able to receive their hourly billable rate. Additionally, the code permits me to set the location of the deposition with 75 miles of the deponent’s residence. That range allows me to set it as close to me as possible without regard to how far away the location is from his or her home.
So how can you get out of a deposition? By talking to the attorney. The purpose of the deposition is to provide the attorney with the opportunity to speak with you and learn information. There have been many times I’ve needed to talk to witnesses and simply called them and asked if they would talk to me. When they agreed, we engaged in an informal telephone call where I obtained the information I needed. When they refused, I was left with no other choice but the depose them.
Of course, sometimes depositions are necessary. But even in those circumstances, I generally reach out to witnesses and when they return my call I am more willing to work with them on the date, time, and location–things that I am under no obligation to coordinate with a deponent.
Dana M. Heyde is a Partner at Cottle Keen Lopiccolo & Heyde, LLP,a preeminent firm that has had a continuing presence in Orange for over thirty years. Cottle Keen Lopiccolo & Heyde, LLP focuses on Civil Litigation, Family Law, and Estate Planning. We would be honored to help you with your legal needs.