Depositions
who do not want to hear from anyone but the parties. Tere are some jurists who absolutely do not want to hear from family members. Tey don’t want to hear from neighbors, from school teachers. Tey don’t want to hear the character witnesses. Te list goes on and on. But there are many judges who want to hear from
whoever you want to present to them. Just make sure that if you go to the trouble of taking a deposition that might end up as evidence at trial, you take the opportunity to read the rules of evidence to make sure it will be admissible.
B. Expert Witnesses If the other side’s expert has a written report, think twice
before deposing that expert. What could you possibly learn from that deposition? Consider whether the expert does you real harm and whether she will learn more from you than you will from the expert? My recurring theme is, think before you act.
C. Records Depositions
Everything I just said about being conservative with taking deposition, when it comes to records depositions,
QuarterlyTrialReporter-3'5x4'5.pdf 8/7/2007 11:51:23 AM
forget everything I just said. Take them all, take them early, take them often. Obtain your documents from the source directly. It’s quick, relatively cheap and provides you with much of the bricks and mortar of your case. Make sure that the records you receive in return to your deposition are self- authenticated pursuant to Rule 5-902.
Concluding Thoughts To depose or not to depose is certainly a question, but
it is not necessarily the question. I want to end where every representation begins: screening. When you screen a case, you should clearly be thinking about the cost of litigating the case, the risks of not engaging in formal discovery, and whether it makes practical sense to take on this client. For example, if you have assessed the case as one where
you absolutely need depositions and substantial discovery, and if the prospective client is arguing about paying your retainer, then I would suggest that you politely decline to represent the individual and send the individual a non-engagement letter. More likely, attorneys and clients make choices about
obtaining information through discovery, and especially through depositions. Whenever you believe your strategy may be impaired because a client does not want to spend the money for you to engage in necessary discovery, stop and think. Tink about whether you may continue to represent the client with the restrictions imposed by the client. In any event, whatever your decision, make sure it is in writing. One last thought: if that communication to the client is
by email and/or text, then (1) do not hit send until after you re-read your communication thirty minutes after you drafted it, and (2) save and print it in your file.
C M Y CM MY CY CMY K
Biography Harry B. Siegel is the founder and past chair of the
MAJ Family Law Section. For more than twenty years, his practice has focused upon complex divorce, custody and financial matrimonial disputes. He has authored many publications on various family law topics and has lectured extensively throughout Maryland. He also has a large family law appellate practice before both the Court of Appeal and Court of Special Appeals. His practice includes family law mediation, as well as parenting coordination, and he serves as a Court appointed best interests attorney in multiple jurisdictions within Maryland. He can be reached at (410) 792-2300 and
hsiegel@siegellaw.net.
42 Trial Reporter / Winter 2011
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