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Legal VIEW

Getting Past the Trial Before the Trial

July 25, 1985|JEFFREY S. KLEIN

Perry Mason always seemed to know what the witness was going to say before he said it. And lawyers are taught in law school never to ask a question in court if they don't know what the answer will be.

In the land of television, lawyers use private detectives to investigate their cases. But in the real world of civil litigation--which covers just about everything other than criminal cases, from suits between business partners to auto-accident cases--lawyers use the "civil discovery" process to obtain information.

Each party to a suit is required to answer written questions, called interrogatories, that the other side may ask.

Each side has to give the other side any documents in their possession that relate to the pending case unless a privilege, such as the attorney-client privilege, applies, and then the document does not have to be disclosed.

Witnesses may be served with subpoenas that require them to appear to testify, not in court but long before trial in something called a deposition.

If you've ever been sued or have witnessed an auto accident, you may have had your deposition taken. But most people have not had to face a lawyer's cross-examination in a deposition, which can be a strange and intimidating experience.

A deposition is usually conducted in a lawyer's office. It may look informal, but the procedure has the same solemnity as a court of law. Your testimony is taken under oath by a court reporter, just as if it were during a trial. The only difference is that no judge or jury is present; usually it's just you and the lawyers. Once the deposition is finished, the court reporter will transcribe your testimony into a bound volume, and you will have to sign it under oath or penalty of perjury.

Reasons for Deposition

There are basically two reasons for a deposition. The lawyers will want to preserve your testimony in case you are unavailable for trial. More important, the lawyers want to know what you know now, before you forget, especially since the trial may be many years away.

A deposition can last from an hour to several days, even weeks in rare cases.

If you are a party to a lawsuit and your deposition is being taken, you will be represented by your own lawyer. He or she can object to improper questions and instruct you not to answer. Before your deposition, make sure your lawyer spends sufficient time with you so that you understand the process and your case. The most important advice you can be given is to be truthful. You won't be able to change your testimony at trial without the opposing lawyer telling the jury about your prior, inconsistent statements in the deposition, so it is best to be prepared the first time.

You should not volunteer information. Just answer the precise questions presented. Lawyers are frequently difficult to understand. If you don't understand what is meant by a question, just ask for it to be clarified. There is no reason for you to testify while you're confused.

If you are subpoenaed to a deposition as a witness, you have the right to bring your own attorney to represent you if you desire. If the case is simply a traffic-accident suit, and you were an innocent bystander, you probably don't need an attorney by your side. But if you are called to testify in a complicated business case, and you think that the case may have a significant impact on your future business or you may later become involved directly in the suit, you should consult a lawyer as soon as you are served with the subpoena.

Whether or not you will be represented by counsel, you may find it helpful to read a short pamphlet prepared by the California Trial Lawyers Assn., which is available upon request at no charge. Write the association at 1020 12th St., Sacramento, Calif. 95814, and ask for a copy of Consumer Protection Pamphlet No. 105, entitled "Your Deposition." The pamphlet may also be obtained in Los Angeles from Roger Beck Public Relations, 4348 Van Nuys Blvd., Suite 209, Sherman Oaks, Calif. 91403.

Legal Brief

More on dry cleaning.

Sen. Ed Davis (R-Valencia) has introduced a bill to provide triple damages for anyone whose garments are damaged by a dry cleaner who does not have a proper license.

"Obviously," explains Michael J. Siegel, executive director of the state Board of Fabric Care, "this will be a tremendous help to dry-cleaning customers who often have minimal monetary injury not otherwise justifying the time and expense of a small claims court action."

In other words, this would provide a financial incentive to take your case to small claims court.

Attorney Jeffrey S. Klein, a member of The Times' corporate legal staff, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Legal View, You section, The Times, Times Mirror Square, Los Angeles 90053.

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