An Oral Deposition. Texas Litigation

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1 An Oral Deposition in Texas Litigation Prepared by: Jim L. García Attorney at Law Cersonsky, Rosen & García, P.C St. James Place, Suite 150 Houston, Texas Telephone: (713) /Fax: (713) by Jim L. García

2 Depositions in Texas Courts 1. What is a Deposition?: A deposition is the taking of testimony of any person, usually a witness or a party to litigation before a court reporter. In essence, the deposition of any person who may be a party or a witness in a lawsuit may be either set by agreement of the attorneys and/or it may be noticed (in case of a party) or a subpoena may be issued to compel a witness to give his/her testimony. In simple terms, the deposition takes place usually in the offices of one of the attorneys in the case. The attorneys for all other parties will be in attendance and a court reporter and in some cases, a videographer, will record the questions and answers given by the witness. The taking of a deposition is permitted by Rule 199.1, et. seq., of the Texas Rules of Civil Procedure and although the attorney in charge of your case will meet with you either in person or by telephone prior to the date of the deposition to discuss the nature of the deposition and the potential testimony of the witness who is set to give his oral deposition, we take this opportunity to provide you with a summarized version of what type of proceeding is a "deposition of a witness". 1. Purposes: The taking of depositions is permitted by Rule 200, et. seq. of the Texas Rules of Civil Procedure. A "deposition" is taking the oral testimony of a witness which testifies under oath and is transcribed and/or videotaped by a Court Reporter and/or Videographer. In the event of "nonstenographic" depositions, the testimony is taken with the use of a tape recording device. The usual procedure for taking depositions is to take them at the lawyer's office or some other convenient place to all concerned. The witness is sworn by the Court Reporter, and the lawyer taking the deposition asks questions from the witness. If the person being deposed is a "witness", that is, not a party to the lawsuit, the attorneys for the parties will examine and cross-examine the witness. Whenever there is a deposition of a witness (not a party to the lawsuit), the witness "belongs" to the party setting the deposition of the witness and therefore, the testimony of this witness is expected to favor the party who set the deposition. However, this may not always be true since there are a number of reasons for calling a witness to testify at a deposition prior to trial. During this proceeding, if the witness is not a party to the action, he/she will normally be examined by both the attorney for the party who set the deposition on direct exam and then, he/she will be cross-examined by the attorney for the party who did not set the deposition. 2

3 Although the manner and place in which an oral deposition is taken is rather informal, the testimony which is given by the witness is under oath, subject to all the penalties for perjury and the testimony is also admissible at the time of trial. Some of the various purposes of an oral deposition are, among other purposes, the following: a. Discovery - The attorney wants to know in advance of trial what information the witness may have -- all facts known to the witness and discover all documents which the witness may have or that the witness has knowledge of the person who has such documents. b. Story - The attorney taking the deposition wishes to "pin the witness" down to a particular story or version of the facts. For example, if the witness testifies that "he saw facts a, b, and c", it is important to a particular story so the attorneys will know what the witness knows about the facts or other issue in the case and be "pinned down" to a certain story. c. Impeachment - The attorneys may want to use the deposition to "impeach" the witness at the time of trial. For example, if the witness' testimony at the time of trial deviates from the testimony given during a deposition, the lawyers may use this deviation to indicate to the Court and/or Jury that the witness is not worthy of credibility. d. Preservation of the Witness' Testimony - In many cases, witnesses to a particular incident which results in a lawsuit, may become unavailable and cannot be found to testify at the time of trial. Therefore, it is usually good practice, if the testimony of the witness is expected to be favorable to any of the attorneys in the case, to take the deposition of the witness prior to trial just in case the witness is not available to testify at the time of trial. The Texas Rules of Civil Procedure permit the introduction of a witness' deposition testimony at the time of trial. e. Fresh Recollection - In many situations, with the passage of time, a witness' recollection of the events may fade. Therefore, it is usually good practice to take a witness' testimony as soon as possible to avoid lapses in recollection which may result from the passage of time. 2. Do you have to attend the deposition? No, but you should. Since your attorney will be present at the deposition, it is not absolutely necessary that you attend the witness deposition. However, we strongly urge you to attend the deposition for various reasons: (1) the witness' testimony may be more favorable if you are present for the pure reason that people normally do not like to say "bad things" about other people. If you are not present, the witness may not feel as inhibited in discussing matters which may be very adverse to your version of the facts; and, (2) since the lawyer normally was not present at the time of the incident and his/her client was, your attendance is highly valuable since you need to assist your lawyer during his 3

4 examination of the witness. Therefore, although your presence is not technically necessary, it is my recommendation that you be present at the deposition. 3. Can you have other people with you at the deposition? All persons who are parties to the lawsuit and their attorneys have the right to attend and be present at the deposition. However, in the event that you wish someone who is not a party to the suit to attend, you must let your lawyer know so he can confer with the lawyer who noticed the deposition and make sure that the other lawyer does not have an objection. If the lawyer has an objection to anyone being present who is not a party to the deposition, you cannot normally not have anyone who is not a party attending the deposition. Obviously, there may be a number of cases in which you need someone else in attendance to assist with the testimony being given such as an interpreter. 4. How long does a deposition lasts? There are no specific time limits except those which are "reasonable." Once a deposition commences, it may last a very short time, or it may last for a full day. Sometimes, depositions may last for several days and even weeks. However, a lengthy deposition is usually reserved for large and complex cases. The average deposition should not take more than half or one day. You do have time to take breaks, go to the bathroom, and if need be, to consult with your lawyer in private during the deposition. Sometimes depositions are "continued", that is, the taking of testimony is terminated at one a point in time with the understanding that the taking of the testimony will be continued at some other time, date or place. 5. What do lawyers do during a deposition? In the case of the deposition of a witness, not a party to the litigation, the attorneys for both litigants have the right to examine (ask questions) of the witness. Normally, the lawyer for the party who set the deposition will ask the questions first (direct exam) and the attorney for the other party will then have an opportunity to cross-examine the witness. 6. How to Dress for A Deposition: Normally you should wear clean and normal clothes at a deposition. It is not required to dress formally, unless that is your usual style (e.g., coat and tie). At the same time, you do not want to dress so informally (e.g., cut-off's, muscle shirts, etc.) as this may give a wrong impression on the lawyers and others who may attend the deposition. The usual rule is to "dress as you would dress for work on a daily basis." 7. Answering questions during a deposition: Since the deposition being taken is that of a witness, although you may be in attendance at the deposition, you will not be asked any questions. Further, you are not allowed to ask any questions yourself of the witness. Your lawyer is the one who will be responsible for asking all the questions. 4

5 8. Can you consult with your lawyer during the deposition of a witness? You can consult with your lawyer in the course of the deposition of a witness not a party to the suit. However, you should wait until a recess or some other time, to discuss any matters with your lawyer. You do not want to "bug" your lawyer while he/she is asking questions since this may distract your lawyer's line of thought. Normally, you will have a legal pad with you and you may want to write down whatever you may think may be important and provide these communications to your lawyer. 9. What happens after the deposition? After a deposition is taken, the testimony of the witness is transcribed in a booklet form. It resembles a script with the questions and the answers. You have the right to receive or review a copy of the transcript and read the same. You can then transmit to your lawyer any opinions, suggestions, or any other comments you may have concerning the deposition of the witness. 10. How is the deposition used? The deposition of any witness, including a party, can be used by the lawyers at the time of trial to impeach a witness, or in the event that the witness is absent, the deposition or parts thereof, can be read into evidence as if the witness was present and testifying from the witness stand. Remember, a deposition, although informal, is just like the witness was testifying in a court of law. I hope that the summary above provides you with some information regarding the nature and procedural steps associated with a deposition. Obviously, the best source of this information is your formal discussion with your attorney. Most attorneys will discuss the taking of the deposition of a witness with their client prior to the deposition in order to be prepared to examine the witness. However, in some cases this may not be necessary if the lawyer has either independent information regarding the witness' expected testimony or if you have discussed with your counsel the potential testimony of the witness prior to the date in which the Notice of Intent to Take Oral Deposition is received. At any rate, you may be contacted by your lawyer in the event that he/she feels that your assistance is necessary and I urge you to cooperate with counsel in all respects and to the greatest extent possible. The opportunity to continue to assist you with the defense of the above-referenced litigation is appreciated and if you have any questions, please, give me a call. Date of this Publication: September 27,

6 About the Author: Jim L. García Jim L. García was admitted to the State Bar of Texas in Also admitted to practice before the United States Supreme Court, the United States Court of Appeals for the Fifth and Eleventh Circuits and the United States District Court for the Southern District of Texas. Attended Georgia Military College in Milledgville, Georgia, and the University of Florida, in Gainesville, Florida (B.S., M.S. Econometrics). University of Houston-Bates College of Law (J.D. 1974). Initially employed in the Quantitative Section of the Comptroller's Department of Exxon Company, USA, later transferred to the Litigation Section of Exxon. From 1974 to 1979, Mr. García served as a an attorney in the Litigation Section of Exxon and participated as lead counsel and co-counsel in major litigation in the areas of civil rights defense, personal injury, oil and gas litigation, commercial litigation, and the defense of consumer litigation. As an attorney for Exxon, Mr. García was also called from time to time to represent other companies affiliated with Exxon such as Friendswood Development Company, Monterey Coal Company, and the King Ranch. In 1979, Mr. García became a partner in McLain, Jones & Niehaus, a Houston law firm and subsequently, Mr. García was associated with David T. Lopez & Associates and Chaumont & García, P.C., where Mr. García was a named partner. In 1986, Mr. García formed his own firm, Jim L. García & Associates, P.C. in Houston, Texas and in June 1, 1994, Mr. García joined the Houston law firm of Alonso, Cersonsky & García, P.C. as a shareholder. In April 1, 2009, García became a founder and majority shareholder of Cersonsky, Rosen & García, P.C. During the more than 20 years in the practice of law, Mr. García s practice has been concentrated in the area of general litigation, including by way of illustration, litigation in the areas of general commercial matters, including in particular, collection of accounts and creditor s rights, claims in probate courts, employment law, consumer law, contracts, and corporate law. Litigation has been conducted in both, Federal and State forums and in particular, Mr. García has litigated cases throughout Texas and in the federal courts of Texas, Pennsylvania and Louisiana. Mr. García's experience ranges from the investigation of personal injury claims to acting as the first chair and lead trial attorney in major litigation in the federal and state court systems, including appellate work, jury and non-jury cases. Mr. García has represented both defendants and plaintiffs in civil litigation. A number of the cases litigated by Mr. García have been reported in the West Publishing company reporters (both Federal and S.W.2d) and other reporters (F.E.P. Cases). 1 In addition, Mr. García has represented clients in various administrative hearings such as proceedings in the Equal Employment Opportunity Commission, the Texas Worker's Compensation Commission, and the Texas Workforce Commission. Mr. García also conducts an active practice in office matters such as the negotiation and drafting of contracts, business organizations, corporate buy-outs, real estate, estate planning, and other areas of a general commercial law practice. Mr. García has been qualified to act, and has acted as counsel for the Resolution Trust Corporation and the FDIC in several real estate matters and has mediated a number of his own cases which have been pending in litigation. Mr. García is also a certified mediator by the Attorneys Mediators Institute, Inc. and has acted as mediator in various cases for the Harris County Dispute Resolution Center. Mr. García is a member of the State Bar of Texas, the American Bar Association, the Fifth Circuit Bar Association, the Texas and the American Trial Lawyers Association, the Hispanic Bar Association, and has served as a member of committees of the Houston Bar Association. Mr. García is fluent in Spanish. He is married and has four children. Not certified by the Texas Board of Legal Specialization. 1 Salazar v. Marathon Oil, 24 FEP Cases 1186 (S.D. Texas 1980); Dinzik v. Hanson Galleries, 553 F.Supp. 547 (S.D. Tex. 1982); EEOC v. Exxon Corporation, 583 F.Supp. 632 (S.D. Tex. 1984); Mariner Financial Group v. Bossley, 79 S.W.3d 30 (Tex. 2002); Abetter Trucking Company, Inc. v. Juan Angel Arizpe, 13 S.W.3d 503 (Tex.App. Houston [1 st. Dist] 2003, no pet.)

7 Courtesy of: Jim L. García Cersonsky, Rosen & García, P.C St. James Place, Suite 150 Houston, Texas Telephone: (713) /Fax: (713)

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