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.

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.

Discovery in Lawsuit

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 is accomplished by sending the opposing party three or four different “packets” requesting certain types of information.  

stack of legal documents

Uniform Interrogatories:

Is 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 give us the opportunity to write our own questions for the opposing party. For example, we could ask the opposing party, “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 they do not respond in the affirmative then they must provide an explanation of why they denied the statement. For example, we could write a statement, “Admit you did not pay back the money as agreed”. They are forced to “admit” the statement or deny it and then give a detailed explanation as to why they denied the statement.  

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 packets are not exchanged with the Court. In fact, the Judge will never see this information unless a specific piece of information is formally introduced as evidence at trial. So don’t worry about impressing the judge, we are simply trying to gain useful information.

If you need help from an Arizona attorney then contact the Dunaway Law Group at 480-389-6529 or send us a message HERE.

Motion for Summary Judgment

What is a Motion for Summary Judgment?

A Motion for Summary Judgment is a pleading filed with an Arizona court where a party is asking the judge to rule on a single issue—or the whole case—without the need for a trial. In order for summary judgment to be granted, there must be “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law”. This means that the undisputed facts presented in a particular case entitle one side to win because of the existing law relating to that issue.

When considering a Motion for Summary Judgment, the Arizona judges must view all “the evidence and all reasonable inferences in the light most favorable to the non-moving party.” Rowland v. Kellogg Brown and Root Inc. Under Arizona Rules of Civil Procedure 56(c), only if the Arizona court makes a finding that no genuine issue of material fact exists can the moving party be granted a judgment as a matter of law. If issues of material fact exist then the Motion for Summary Judgment should be dismissed in its entirety.

Arizona courts are cautioned not to use summary judgment proceedings as a substitute for trials, the motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.

The burden of persuasion on the party seeking summary judgment is heavy and if there is any genuine issue as to a material factual issue is present, the motion should be denied.

Statement of Facts and Affidavit

There are two documents filed in conjunction with the motion for summary judgment; 1) a Statement of Facts and 2) an Affidavit in support of the facts.

  • Statement of Facts– The statement of facts lays out the facts as the person filing the motion for summary judgment sees them. More than just stating the “facts”, the facts must cite to specific documents that supports that statements.
  • Affidavit in Support– Additionally, the person filing the motion for summary judgment must file an affidavit in which they swear under oath that each of the statements they make are true.

Why File a motion for Summary Judgment?

Just because the opposing party filed a Motion for Summary Judgment it doesn’t mean that you did something wrong or they have an extraordinarily strong case where the judge will enter judgment in their favor without even going to trial.

It is quite common for Motions for Summary Judgment to be filed in Arizona cases. In part because a judge can rule on just one aspect of the case. This will allow them to see if they can “chip at the edges” of our lawsuit and see if they can get anything dismissed at this time.

response to the motion for summary judgement

A response to the Motion for Summary Judgment must be filed within 30 days of receiving the motion. A response gives a party the opportunity to respond to the allegations made in the Motion for Summary Judgment. As part of the response, a statement of facts and affidavit must also be filed. Similar to the opposing party’s statement of facts, the respondent must cite a source for every statement made to the court. Doing this is incredibly tedious and time consuming!

RULING ON THE MOTION FOR SUMMARY JUDGMENT

There are three basic ways an Arizona court can rule in response to the MSJ.

  1. The Arizona Judge may grant the opposing party a judgment summarily dismissing the whole case.
  2. The Arizona Judge may grant partial summary judgment. Meaning she may dismiss one or some of their requests and allow the others to move forward. The remaining issues will continue moving towards trial.  
  3. The Arizona Judge may completely the opposing party’s Motion for Summary Judgment. If their Motion is completely rejected then the case will continue moving towards trial as if the Motion for Summary Judgment had never been filed.

What If the Summary Judgment is Granted?

If the Motion for Summary Judgment is granted, the judgment on the issue or case is deemed to be a final judgment from which a party may appeal. An Arizona court of appeal can reverse the summary judgment and reinstate the claim in the Superior Court. However, this is rarely done and most summary judgments are upheld on appeal.

It is likely the winning party will be granted an award of their attorneys’ fees and court costs.

If you need help from an Arizona attorney then contact the Dunaway Law Group at or 480-389-6529 by sending us a message HERE.

Appeal Arbitrator Ruling

How to Appeal an Arizona Arbitrator’s Ruling

There are two basic options available to a party once an arbitrator has made their ruling. One, a party can let the Arizona arbitrator’s decision stand or secondly you can appeal it. If a party does not appeal the arbitrator’s ruling then it will become a judgment. However, if a party appeals the arbitration award then the case will continue moving forward in the Superior Court as if the arbitration hearing and arbitrator’s award had never happened.

I.                   LET THE ARBITRATOR’S DECISION STAND

A.    Arbitrator’s Decision Becomes Final– If you do not appeal the arbitrator’s decision within 20 days, then their decision will become a formal judgment!

II.                APPEAL THE ARBITRATOR’S DECISION

A.    Notice of Appeal– Within 20 days of the Arbitrator’s decision you must file a notice of appeal with the Arizona Court. The notice will state: “Notice from Arbitration and Motion for Trial Setting”. This Notice of Appeal must be filed within 20 days from the date of the Arbitrator’s decision.

B.     Deposit for Appeal– At the time of filing the notice of appeal of arbitrator’s decision the appealing party must deposit $140 with the Clerk of court. If you are ultimately deemed to be the prevailing party then the deposit will be returned to you. However, if you are the losing party then the court will give your deposit to the opposing party.

C.     Downside to Appealing the Arbitrator’s Award– The case will continue moving forward and with that comes the cost, stress, and time associated with litigating the case. Additionally, as their attorneys’ fees continue to mount it increases your risk exposure if you were to take this case to trial and lose.

Appealing an Arbitrator’s decision is a serious decision that must be made while weighing the pros and cons of moving forward. If you have questions about appealing an Arizona arbitrator’s award then contact the Dunaway Law Group by clicking HERE or calling us at 480-389-6529.