Friday, March 15, 2013

SFL Friday -- Time to Depose Opposing Counsel!


I'm sure none of my dear readers have done this, but I have heard talk that sometimes lawyers will spring demonstratives on opposing counsel mere seconds before presenting them to the judge or jury.

FIGHT THE URGE YOUNGINS!

Well now there is the natural recourse (at least in the 4th DCA) for such low-class "ham-and-egger" behavior -- depose opposing counsel on the content of those summaries:
During the pretrial stage, two attorneys working for Petitioners created a master summary chart (“MSC”) to be used as a trial exhibit. The MSC consisted of a combination of personal injury protection files generated by Petitioners, and medical and billing charts generated by Respondents. Over Respondents’ objection, MSC was introduced into evidence as a summary based on section 90.956, Florida Statutes (2004). However, the trial was terminated before judgment when a mistrial was declared by the trial court.

Prior to retrial, Respondents filed a motion to take the depositions of Petitioners’ attorneys who created the MSC. After conducting a hearing, the trial court granted the motion, finding that because the attorneys were “interject[ed] into this case by [their] creation of a critical trial exhibit,” Respondents were “permitted to question the accuracy and methodology used for creation of the [MSC].”
But the 4th said okey-dokey:
While it is true that the attempt to depose a party’s attorney during ongoing litigation has been rejected when irrelevant or privileged information was sought from the attorney, attorneys are not per se exempt from the reach of Florida Rule of Civil Procedure 1.310(a), which allows the taking of the deposition of any person. . . .While we recognize the potential for abuse of the process of deposing the opposing party’s attorney during ongoing litigation, we are confident trial courts in this district will use their powers of supervision over discovery to prevent privileged information from being disclosed. 
"Potential for abuse"? 

I'd say it is a near-virtual certainty.

What say you?



11 comments:

Anonymous said...

Typical appellate court insularity

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Happy weekend!

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