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Posted By John Reilly

Many times court rules allow witnesses who have given sworn deposition testimony the right to review and make changes to their anwers.  Changes in spelling and other minor things of that nature are one type of correction. Additions to answers or even substantive changes (things that are important) can also be made but sometimes require that reasons for the changes be listed. Without getting into the nuances of procedural rules and cases that deal with the nature and extent of such corrections, they provide additional protection because if the witness is questioned about their testimony their corrections can be read with their original response to hopefully give everyone a better opportunity to understand what they are trying to say.  But as a practical matter here are some preliminary points (based on our experiences) to consider:

1.  If local rules provide that it must be done, a witness or their lawyer should indicate their intent to review and potentially make corrections before the deposition is concluded.

2.  Lawyers should send transcripts to their clients with instructions on how and when (how long they have) to make corrections.  Usually we find the parties agreeable to giving witnesses thirty (3) days to make their corrections.

3.  Witnesses should READ the transcripts and make corrections or note questions as they do so.  If the deposition was lengthy, this can be done over several days so as to keep alert and avoid fatigue.

4.  Any questions can be broght to the attention of the witness' attorney.  Lawyers can assist witnesses to a point with technical questions and can even help the witness prepare (type) their changes (if any) in a form that is proper. Communications between lawyers and their clients concerning deposition corrections remain privileged. 

5.  The final changes have to be submitted to stenographers or the attorneys or both and copies kept with the transcripts.

6.  A witness can note which questions have been corrected or supplemented on the pages of the transcript that they reviewed and if questioned about answers at hearings or trial will be able to readily remember and state that a particular answer has had corrections.

Before we even get to those points, the witness has to be willing to read the transcript, reflect on his or her answer, and actually take the time to note changes.  Unfortunately, a significant percentage of witnesses seem to either never be aware of their right to seek to make corrections or choose to ignore the process.  Laziness about or inattention to any stage of the litigation process can cause the loss of valuable rights and opportunities - and this is as true with the deposition process as it is with anything else.  Anyone represented by a lawyer should ask their lawyer about this part of the deposition process and discuss whether they will review and make corrections before a deposition begins.  Our clients and others know they can contact John Reilly by telephone at (401) 272-2800 or E-mail: jreilly@lawyers-online.us for a consultation about this process so that they can fully protect their rights.


 
Posted By John Reilly

Time for a little legal humor - I've told this one before but it bears repeating (not using real names out of consideration for others).

The courtroom was packed with lawyers as the JUDGE slowly moved through a long crimnal case calendar list.  The courtroom CLERK dutifully pulled out paper files as each case was called.  Just before the morning break a name was called whose file was not in the pile brought in by the Clerk's office.  The JUDGE asked the CLERK to get the file during the break and court was recessed.

During the recess the CLERK had a little difficulty but found the file.  He returned to the courtroom but became engaged in conversation with a couple of lawyers stranding in the back.  The JUDGE took the bench but since so many people were in the room the hushed conversation in the back went on, unnoticed.  After things settled down the JUDGE noticed that the CLERK was not at his appointed location in front of the bench.  This exchanged followed:

JUDGE: We will resume the calendar ... Mr. Clerk, do you have that file?

CLERK: (still whispering with lawyers - no reply)

JUDGE: Mr. Clerk, do you have the (name omitted) file?

CLERK: (still whispering with lawyers - no reply)

JUDGE: Mr. Clerk, can you bring up that file I sent you for?

CLERK: (still whispering with lawyers - no reply)

JUDGE: (turning to a courtroom security officer): Please get Mr. Clerk!

So the security officer goes back and gets the Clerk's attention.  They both come to the front of the courtroom and the Clerk takes his seat at a table in front of the bench.  Everyone is the courtroom is watching but the Clerk simply starts arranging files.  So the Judge, smilingly, begins again:

JUDGE: Mr. Clerk, do you have that file we asked you to get over the break?

CLERK: Yes, your honor, here it is (standing, turning, handing the file to the Judge)

JUDGE: Thank you.  Didn't you hear me asking for it?

CLERK: I'm sorry?

JUDGE: I've been asking you if you had the file several times - didn't you hear me?

CLERK: You were asking me?

JUDGE: Yes I was - what's the matter are you getting deaf or something?

CLERK: No, your honor ... it must be the poor AGNOSTICS in this room....!

 

The comedian Norman Crosby used to say that he learned the art of malapropisms while "communicating" to work and watching the colorful "foilage" and the movie "My Cousin Vinny" had some of that same type "verbage", but real-life examples in abound everywhere. Cheers!

 


 
Posted By John Reilly

The Rules of Professional Conduct and some laws or statutes (such as Title 18, Section 2001 of the United States Code - 18 U.S.C. 2001) make it impermissible to pay, offer to pay, or knowingly acquiesce in the payment of compensation to a witness when that payment or potential payment is contingent on (depends upon) the content of that person's testimony or on the outcome of the case.

There are special rules and procedures for the compenstion of expert witnesses, but with respect to non-experts, lawyers are permitted to advance, guarantee or acquiesce (allow their clients to advance or guarantee) in the payment of the following:

          1.     Witness fees allowed by law or court rules.

          2.     Out-of-pocket expenses reasonably incurred by a witness in attending or testifying,

                  including reasonable travel and subsistence (meals) expense.

          3.     Reasonable compensation for the value of time lost by the witness in attending any

                  hearing, trial or proceeding.

GENERAL COMMENTS: Witnesses who have received or will be receiving any such compensation should not hesitate to admit this if questioned in the proceedings. Lawyers should consider notifying opposing parties and/or the court itself in advance of payment of substantial expenses, depending on the circumstances. Witnesses cannot be paid for their testimony but can often be compensated for their time and expenses. 

If you have any questions about these procedures - or about other topics such as how to best offer and pay rewards for information, consult an attorney experienced with these arrangements.  Still have questions? Contact Attorney John Reilly by telephone (401) 272-2800 or by E-mail: jreilly@lawyers-online.us


 

 

 
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