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.

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!

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

Insurance companies sometimes ask insureds who are making claims for "non-waiver" agreements.  These supposedly "protect everyone's rights" and some claim representatives tell insureds that these agreements are "required" even though policies (the contract between the company and the insured) do not require them at all.

Generally speaking, an insurance company conducting an investigation may have some concerns about whether there is coverage, the extent of coverage, whether the claim falls within the coverage, whether the claim is legitimate, and so forth.  When they have these concerns, the companies do not want the insured making a claim to be able to assert that the company has "waived" its right to contest coverage or any part of the claim. 

While the need for the insurance company to have this additonal protection is questionable, the time-honored method used by companies to comfort themselves with this supposed added protection has been to send the insured a "Reservation of Rights" ("ROR") letter.  The traditional ROR letter typically spells out the policy provisions that concern the insurance company and states that although the company is going to investigate the loss it nevertheless reserves all rights it may have to contest coverage, contest the claim or contest both coverage and the claim.

Issuing a ROR letter has often been found to be a "two-edged sword" for insurance compaies.  By their very nature, ROR letters alert insureds (and lawyers representing insureds) to the concerns that the company has about coverage or the claim.  Knowledge being a powerful thing, some insurance companies believe that this allows insureds to craft the information they provide or disclose to avoid loss of coverage.  The solution has been to try to get insureds to sign the "Non-Waiver Agreements" as these are bland, vague and typically do not specify the policy provisions or portions of the claim that are receiving heightened scrutiny.

From the point of view of the insured making a claim, unless a Non-Waiver Agreement is required by the policy or by the law in the state in which the claim is being made, there is generally no benefit to signing one of these agreements.  The insurance company is usually required to investigate the claim anyway - and to do so fairly and in good faith.  Insureds are required to cooperate with investigations and may not present fraudulent claims, but we believe they have a right to know the issues that need to be addressed. 

If asked to sign a "non-waiver agreement", insureds making claims should be aware that while in some instances the request may be nothing more than something that an adjuster does on every claim, it may signal that other issues can come up which may lead to a denial or limitation of coverage.  Consulting an attorney in your local area is a good idea if this happens.  Our firm has extensive experience dealing with insurance company investigations and can assist your local lawyer or help directly in those states in which we practice.  Contact John Reilly at (401) 272-2800 or through the web (jreilly@lawyers-online.us) to discuss your concerns.

     Overstaffing the handling of a matter for a client who knows no better and pays their bills is a significant example of an excecessive law firm billing practice that we have seen over the years. This is most often encountered when a client is paying on an hourly basis.  Frequently seen examples include:

(A) having and charging for numerous in-firm "conferences", many of which involve "conferring" about routine tasks or plans,

(B) sending (and charging for) more personnel than necessary to routine events,  and/or

(C) Charges for proofreading and editing routine work done by other firm members.

     Insurance and litigation management firms have recognized these potential abuses and have adopted extensive guidelines and methods of reviewing bills submitted by private law firms, but they will be the first to concede that their systems are far from foolproof. Furthermore, very few other types of legal service consumers seem equipped to deal with these and other types of overstaffing.  

     This is not to suggest that having "backup" personnel assigned to cases or on projects is always inappropriate - in many instances it is actually advisable and necessary.  Yet legal service consumers should be alert to the possibility of overstaffing and are encouraged to avoid issues of this type by negotiating written retention agreements to address issues of this type.  They may also seek "second opinions" or get competitive proposals by other area law firms or practitioners.  And they may change lawyers as noted in one of our prior blog entries.

      We recently attended a simple "site visit" with a client and our expert witness. The lone corporate defendant was "represented" by several lawyers from the same firm.  Our client (never shy with words) eventually asked the senior Attorney for the defendant whether he had experienced trouble "finding even more lawyers who could come just to watch and send bills" around the firm's water cooler that morning. It was embarassing, but would probably hurt even more to have to pay the bill if the firm bills for overstaffing of that type.

      Lawyers and their clients should be cooperative and fair to one another.  If they do so abuses of this type will not occur.  As always, please contact John Reilly & Associates (information@lawyers-online.us) with if you are having issues of this type, want to review a proposed retention agreement or have other law-related questions.  Visit us on the web at www.lawyers-online.us or call (401) 272-2800.