Continued from Part One
Request for admissions
- Or a request to admit, are written statements sent from one litigating party to another litigating party to seek either an admission or denial on a specific claim of the lawsuit. A request for admissions, while similar to interrogatories, is different in purpose. This difference is that each admission or question is in a declarative form requiring a response either admitting, denying, or a detailed explanation of why an admission or denial cannot be entered as a response. A request for admissions is generally only answerable in a yes or no format.
- Or examination for discovery, is a sworn, out-of-court, oral testimony of a litigating party or witness that is transcribed into a written format for the record in a civil lawsuit. Sometimes audio and video formats are used in addition to a written format. Depositions are performed outside of court by the litigating attorneys without a judge being present. This testimony is used for the future trial or possibly for further discovery purposes. A person being deposed is considered a witness and is sworn to tell the truth as they would be in a courtroom setting. In some jurisdictions, a deposition may be more commonly referred to as a deposition hearing.
- Ideally, the deposition process will provide clear insights into the merits and strengths or weaknesses of the filed lawsuit for both litigating parties. Depositions many times have a calming effect on both litigants, somewhat of a reality check. Many people initiate litigation believing their case is a “can’t lose” or “slam-dunk.” On the flip side, people are named in lawsuits and believe the lawsuit is frivolous and without merit. Depositions can sometimes dispel unrealistic “sure thing” outcomes. It is very common for a case to be dismissed or settled after depositions.
- Even if someone has never set foot in a courtroom, everyone has seen television and movies with courtroom scenes and has at least a superficial understanding of that process in the litigation cycle. The vast majority of actual depositions are on the boring side of litigation when this is compared to the courtroom scenes depicted in movies, which is probably why depositions are rarely depicted in movies. The reason a deposition is non-eventful and difficult to make interesting is that counsel is allowed to ask questions of the person being deposed without comment or interruption from the attorney of the person being deposed. However, there are exceptions to what can be asked, and questions can be objected to, in those instances the attorney of the person being deposed can interject.
- All the parties to a lawsuit are subject to being deposed. Typically, most homeowner association litigation involves less than five depositions. This could be because of the related legal expenses involved with additional depositions. However, in most cases, one board member speaks on behalf of the association, and this is typically enough to satisfy the questions to be asked. If a witness is wanted for a deposition and not a party to the lawsuit or is unwilling to testify, a subpoena can be issued by the deposing attorney and served. This subpoena will legally compel the witness to appear for a deposition on a given date, at a certain time.
- How a deposition works, typically, is that both parties to the lawsuit and their legal counsel are present in a room along with at least a court reporter or stenographer. This room is typically a conference room in one of the law firms, or possibly a conference room at the courthouse in the county where the witness resides. The court reporter is a third party hired to make a verbatim record and transcription of the deposition. The court reporter will swear in the witness, the person being deposed. The court reporter will also verify the witness’s identity by verifying a government-issued photo ID, such as a driver’s license or passport. The lawyer for the side of the litigation that subpoenaed the witness will direct a series of questions towards the witness. These questions typically start with the basics, such as witness name, address, board position, and evolve to material facts of the case. A common tactic employed by deposing attorneys is to lull the witness into a feeling of overconfidence with easily answerable questions. Once the witness is comfortable answering these easy questions, the attorney pours on tougher and tougher questions hoping to rattle the witness and elicit answers in a way that benefits their client. When this attorney concludes with their questions, if the opposing counsel has questions and answers they wish to put into the record at that time, they have the opportunity to ask the witness questions. Depositions can last for many hours or even days, or be completed in half an hour, depending on what information is needed from the witness.
- For the most part, when a person is deposed, they are on their own when it comes to answering what is asked, which is how it should be. This is not to say their attorney will not prep them beforehand, to make sure they know what to expect from the questioning. One big difference between testifying in a deposition as compared to testifying on the stand in court is the time and range of questions. Deposition questions can be far-ranging and take hours to answer. Whereas in a courtroom, judges typically will only allow questions and answers that are material to the matter at hand.
- When the deposition process begins in litigation, many of the uninitiated believe the document production process has caused the most angst for the board of directors. The deposition is stressful for a number of reasons, none of these reasons nefarious in origin. The first and most common is that the vast majority of board members have never sat for a deposition before. As with many new experiences, there can be a bit of trepidation. Being the center of attention and having everyone in the deposition hanging on every word, can be unnerving for the most cerebral deposition witnesses. The second most common stress factor is the fear of saying something that hurts the homeowner association’s case. This concern is typically unwarranted, while most all cases have strengths and weaknesses, lawsuits do fall apart in depositions. However, hopefully, legal counsel has already advised their client of those weaknesses in the case, and those weaknesses are not of a nature that one deposition question is going to torpedo the case. If the overall case is so weak that a deposition question sinks an entire lawsuit, it probably should not have been brought in the first place. If the defendant has a weak case, they should probably attempt to settle at the earliest opportunity to mitigate the financial liability. This topic should be addressed directly with the HOA’s attorney to ensure the best interests of the homeowner association are sought.
- An important point to stress again is that not all HOA information is subject to discovery. Information that is deemed to be attorney-client privilege is not subject to discovery. For example, emails between the board of directors and the HOA’s attorney would generally not be subject to discovery. The reason for the protection of attorney-client privilege is so that attorneys and their clients are free to communicate explicitly without hesitation or concern.
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Legal Disclaimer: This blog is presented solely for entertainment and educational purposes. The blog’s author is not an attorney, nor offering legal advice. The blog’s author and publisher are not offering or presenting this work as legal or any professional services advice or guidance. State statutes regarding HOAs can vary from one state to another so state statutes will need to be reviewed and may conflict with the material found within this blog. Every HOA is different, and the advice and strategies contained herein may not be suitable for every situation. The reader should always seek the services of a competent and experienced homeowner association attorney who specializes in homeowner association law.