Category: Civil Litigation

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 480-702-1608 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 states of Arizona and New York.

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.

Motion In Limine

What is a Motion in Limine?

A motion in limine is a pleading filed with the court where on party is asking the judge to prevent certain pieces of evidence from being used during a trial.

What is the Definition of Motion in limine?

The phrase, in limine is a Latin phrase that means “at the threshold”. Hence if granted a Motion in limine will stop certain evidence “at the threshold” or prevented from even being let “in the door”.

At What Point is a Motion in limine Filed?

In Arizona, these Motions must typically be filed by a certain date established at an earlier time by the court. For instance, the judge may say, “all Motions in limine” must be filed by this certain date or you may not raise the argument at a later date.

What are the Factors Determined by the Judge?

Historically three elements must be met before a judge will grant the Motion in limine.

  1. When the evidence is not relevant to any of the issues at dispute in the current case.
  2. When evidence is extremely prejudicial to one party without helping the jury decide on the case in front of them.
  3. When admitting the evidence would violate a state or federal law or the rules of evidence. 

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at 480-702-1608 or send 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 480-702-1608.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice and does not create a lawyer-client or attorney-prospective client relationship. Readers should not act upon this information without seeking advice from professional advisers. This Firm limits its practice to the states of Arizona and New York.