Discovery in Litigation

What is Discovery of Evidence?

During a lawsuit, each party has the opportunity to request formal “discovery” from the opposing party. These requests for discovery are accomplished by sending the opposing party three or four different “packets” with each requesting different types of information.  

stack of legal documents

Uniform Interrogatories:

Uniform interrogatories are a series of questions that are listed in the Arizona Rules of Civil Procedure. Depending on the type of case there is a set of different questions for the opposing party.

Non-Uniform Interrogatories:

Non-uniform interrogatories are questions written by one party to a lawsuit. They send the questions to the opposing party and wait their response.

For example, a non-uniform interrogatory might ask, “Explain in detail why you did not make the payments as agreed”.

Request for Admissions:

“Requests for Admissions” allow one party to a lawsuit the opportunity to present statements to the opposing party in a way where they should respond in the affirmative. If the responding party does not respond in the affirmative then they must provide an explanation of why they denied the statement.

For example, a Request for Admissions could state, “Admit you did not pay back the money as agreed”. If the opposing party did not pay the money back as agreed then they to “Admit” the statement.

However, if a party denies a Request for Admissions they must explain why it is not a true statement. For example, if the statement reads, “Admit you did not pay back the money as agreed”. Answer, “Deny, We agreed that instead of paying you in cash, I could pay you back by putting a new roof your rental property.”  

Request for Documents:

We are given the opportunity to request up to 10 different sets of documents from the opposing party. In Arizona, the opposing party has 20 days–in a Superior Court case or 30 days in the Justice Court–to produce the documents requested and their written responses.

Lastly, similar to 26.1 initial discovery statements. These discovery requests are not submitted to the Court. In fact, the Judge will never see this information unless specifically and formally introduced as evidence at trial. So don’t worry about impressing the judge, we are simply exchanging all relevant information with the opposing party.

If you need help from an experienced Arizona attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the State of Arizona.

Arizona Settlement Conference

Mandatory Settlement Conferences

Settlement conferences are mandatory in Arizona civil cases involving disputes of more than $50,000. Settlement conferences are required in an attempt to alleviate the Arizona Superior Courts from managing all the cases by themselves. The rule for mandatory settlement conferences is done in part to help the parties settle without a trial.

Rule 16.1 of the Superior Court Rules of Civil Procedure that makes settlement conferences mandatory in any cases where the amount in dispute is more than $50,000. If the amount in dispute is less than $50,000 then an Arbitration Hearing is held–in lieu of the Settlement Conference.

Rule 16.1(c) requires that,

“every party and its counsel must attend a settlement conference…Additionally, each party must have a representative present who has actual authority to enter into a binding settlement agreement.”

Superior Court Rules of Civil Procedure 16.1

settlement conference memo

In preparation of the Settlement Conference a memorandum must be prepared and delivered to the settlement mediator and the opposing party.

The Settlement Conference Memo must contain; a) general description of the claims, defenses, and issues in the action, and each party’s position on each claim, defense, and issue. b) a general description of the evidence the party anticipates presenting at trial. c) a summary of any settlement negotiations that have already occurred. d) each party’s assessment of the likely outcome if the action proceeds to trial, and e) any other information that might be helpful in settling the action.

Retired judges often serve as the mediator for the settlement conference. During the day of the conference the parties typically are located in separate rooms and never speak directly to each other.

shaking hands settlement conference

settlement conference outcomes

It is important to note that the mediator will not making any decision or ruling. The mediator does not have the authority to make a binding ruling. Plus the mediator cannot force either party into accepting or rejecting a settlement offer made by the opposing party. They are simply there to help each understand the other person’s point of view and to see if there is any middle ground upon which all can agree.

Furthermore, the mediator will remind the parties of the huge costs, risk, time, energy and stress that are required to forward a case to trial.

the dunaway law group can help you

If you need help from an experienced lawyer, then contact the Dunaway Law Group by messaging us HERE or calling us at 480-389-6529.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the State of Arizona.

Deposition

What is a deposition?

Deposition is the oral testimony of a witness taken under oath before trial at which time most of the objections available at trial do not apply; the basic rule being that the questions asked need only address themselves to information that is relevant to the case or to discovering relevant facts.  Anything said at the deposition can be used as evidence at trial.  

A deposition is a question-and-answer session. Attorneys for the other side will ask you questions, and you will answer the questions. When you answer, you will be testifying under oath, just as if you were testifying in court.  A court reporter will make a record of what is being said, which will later be transcribed into booklet format. When you are answering questions, you should relax and speak openly and frankly. The following pointers may be of some help:

The opposing party has a right to find out what information you have about the dispute so they can be prepared for trial, if the case does not settle.

What Happens at a Deposition?

The first thing that happens is the court reporter will ask you to swear or affirm to tell the truth. Then the other attorney will usually ask you to follow his or her rules. Ninety percent of the time, these rules are a) don’t talk over his questions because the court reporter can’t get down two people talking at once, b) if you don’t understand the question please ask for clarification, and c) if you need a break ask for one. Then the questions and answers begin. Once the deposition starts, you cannot talk to your attorney about your testimony. Your attorney is only there to protect you from improper questions. If your attorney objects, stop talking. Let the attorney get the objection out and then he will tell you whether to answer or not. Most of the time, objections are “for the record” only, because there is no judge present. So, a lot of times, attorneys object to questions and then tell their clients to go ahead and answer. Do not be surprised if that happens.

A deposition is a question-and-answer session. It is not a conversation. The pattern of the deposition should be:

You need to make sure that after you hear the question, you pause and think your answer through. After you are sure that the answer in your head is the best, most accurate answer, then you say it. Taking a pause and thinking through what you are going to say has two benefits:

Second, it lets you take control of the deposition.. But you still maintain 49% control over the way the deposition goes by controlling the pace.

TIPS FOR ANSWERING THE QUESTIONS

1.  Tell the Truth– It is your sworn duty. At your deposition, as in all other matters, honesty is the best policy. You must testify accurately about what you know.

2. Understand the Question– You cannot possibly give an accurate answer unless you understand the question. If you do not understand the question, say so. The lawyer will either repeat the question or rephrase it. Listen carefully to make sure that you understand. Some questions may have more than one meaning or may assume that you have testified to a fact when you have not done so. Listen to the entire question before answering.

Do not be afraid to say, “I don’t understand” or “I’m not 100% sure what you’re asking”. People do not like to admit they do not understand the question. If you are not 100% sure what something means, ask.

QUESTION . . .    PAUSE . . .   ANSWER . . .

QUESTION . . .   PAUSE . . .   ANSWER . . .

3.  Answer the Question that is Being Asked– If the question can be answered with a “yes” or “no”, do so and then stop. By attempting to go beyond the pale of the questions, it may well appear that you are attempting to persuade the questioner rather than answer the question.  Leave the persuasion to your lawyer.

Your answer should be a sentence long. It should not be a paragraph, a chapter or a book. If your answer is longer than a sentence, you are giving too much information.

You may feel that your answer is incomplete, and you will want to further explain so that the lawyer gets what you are saying. Fight the urge. You never want to volunteer something that was not asked for in a deposition. If you get the feeling that you should give more information to fully explain something, just remember that we can talk about it after the deposition is done and write a letter to the other attorney if we really have further explaining to do.

4. “I Don’t Remember”– Do not be afraid to say, “I don’t remember”. If you do not remember something, just say so. Do not guess!  If you don’t know, say you don’t know. Your testimony should consist of your personal observations and knowledge, not your guesses. If you do remember an event but do not remember all the details with absolute certainty, you should qualify your answer by saying, “To the best of my memory” or in some other way.

5. ‘Yes” or “No” Questions– Just the attorney asks you a “Yes” or “No” question does not mean that you have to give a “Yes” or “No” answer. One of the reasons for taking your deposition is to lock you into an answer. Instead of saying “Yes”, try saying “As far as I can recall”. Instead of “No”, you could say “I don’t recall that happening”. That way, you are not really locked into that answer. If you remember the information later, you can change your answer to make it true.

6.  Breaks– A deposition is taxing. On top of the anxiety that everyone naturally has, you are going to basically ask your brain to run a mini marathon. Therefore, the night before the deposition, have a decent dinner then get a good night’s sleep.

Record Judgment

how to record judgments in arizona

So, you want to know how to record a judgment? Courts do not report judgments to credit agencies. However, landlords may report the judgment to the credit bureaus.

An Arizona judgment is a matter of public record, but the only way to guarantee the judgment shows up on their credit report is to record it with the relevant county recorder. A recorded judgment will follow the debtor until it is paid or until it expires.

It is important to note that a new Arizona law which took effect September 24, 2022 requires that eviction records be sealed when: the court enters an order dismissing the case prior to a judgment, the court enters a judgment in favor of the tenant, or the landlord and tenant stipulate to set aside the judgment. A Motion to Set Aside and Seal must be filed with the court to start the process.

certified judgment and superior court

In Arizona, most residential evictions judgments are obtained in a Justice Court. In order to record the judgment, it will have to be certified in Justice Court, sent to Superior Court to receive a new case number and be certified, and then sent to the county recorder to be recorded. Each step requires a filing fee – as of now, the total is just over $100.

The judgment will remain on the credit report until it gets paid off, or for as long as the judgment is valid, which is 10 years. Before that time expires, you can renew the judgment with another 10 years. The Judgment Renewal Affidavit will need to be filed with the Court and also recorded with the County. In fact, any court document that affects the status of the judgment will need to be recorded once the initial judgment is recorded. This includes a Satisfaction of Judgment. You can get into trouble if you fail to satisfy a judgment once it has been paid off, especially if that judgment is on a credit report.

So, to sum up, here are the main things to know about a recording a judgment:

  • The only way to ensure a judgment shows up on a credit report is to record it;
  • If the judgment gets paid off, you MUST file a Satisfaction of Judgment with the court AND with the county recorder;
  • If not paid off, the judgment will remain on the credit report for 10 years, and 10 more if it is renewed.

If you have questions about recording an Arizona judgment against a judgment debtor then contact the Dunaway Law Group at 480-389-6529 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the State of Arizona.

What is Voir Dire

What is voir dire & why is it important?

Voir dire is the process of questioning potential jurors to determine whether they are fit to serve as jurors for a particular trial. For Arizona lawyers, the goal of the voir dire process is to ensure that no members of the jury harbor biases that could jeopardize the outcome of the case.

Without a strategic, well-prepared voir dire process, you run the risk of starting from behind with the jury when the trial begins.

The voir dire process

Each judge in Arizona handles the Voir Dire process differently but the process typically looks like this:

  1. Potential jurors are randomly selected from a pool of people who show up for jury duty.
  2. The judge asks standard questions to ensure that everyone is capable of serving on a jury. For example, if they’re a U.S. citizen, don’t have any hardships that would prevent them from sitting through the entire trial, etc.
  3. After those who are deemed incapable are excused, the Arizona attorneys deliver a mini-opening where they offer a 3-5 minute overview of the case.
  4. Following the mini-openings, both Arizona attorneys ask questions of the remaining potential jurors to determine bias.
  5. Following the questioning period, the Arizona attorneys can request that potential jurors be removed with cause of potential bias, with the judge holding the power to deny the requests.
  6. Arizona attorneys also have the right to reject a limited number of potential jurors without cause. The attorneys may feel these individuals have potential biases, but aren’t able to fully justify their feelings to the judge.