Quote: Angelo saidBill
Another great Post, Thank you again. Just a quick question, I totally understand your position about deposing the witness to refute his personal knowledge testimoney about the facts, but if this is a motion for summary judgement and time is of the essence how would it be possible to set up a deposition in time for your opposition reply?
Apologies for taking so long getting back to you. Others have made some excellent suggestions. Permit me to somewhat expand and elaborate.
Ideally, you would have ALREADY used discovery to obtain some of the facts of your case. One of the very most common interrogatories (which are mandatory disclosures when requested in a few places) are questions relating to the identity of fact witnesses, trial witnesses and expert witnesses.
For example, in Texas the Rules of Civil Procedure include Rule 194 "Requests for Disclosure", which includes this question which MUST BE ANSWERED WITHOUT OBJECTION:
"194.2 (e) [Disclose] the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case."
Note the additional provision precluding objection:
"194.5 No Objection or Assertion of Work Product.
No objection or assertion of work product is permitted to a request under this rule."
Now take a look at what happens when the disclosure is NOT MADE:
"193.6 Failing to Timely Respond - Effect on Trial
(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a
named party) who was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.
(b) Burden of establishing exception. The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record."
The Texas Supreme Court has held that this exclusion applies not only to trial, but also to summary judgment proceedings under the Texas Rules (affidavit testimony is only admissible in a summary judgment proceeding in TX when the witness is eligible to testify at trial.
In the unusual judicial mortgage foreclosure case I am litigating in Texas, I served a request for disclosure on the plaintiff in March 2007. The plaintiff sought a protective order (despite the provisions in the Rules that NO OBJECTION IS PERMISSIBLE). The motion for a protective order was denied in May 2007. Still, the plaintiff did not answer the request for disclosure.
The plaintiff waited until more than seven months after the END of the discovery period (Texas has established Rules on how long discovery lasts UNLESS extended by court order) to file an amended motion for summary judgment which included an affidavit from a non-disclosed witness.
Therefore, in my summary judgment opposition, I OBJECTED to the affidavit based upon witness ineligibility.
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So my first suggestion is to READ THE RULES. Then, after that, READ THE RULES AGAIN.
I have repeatedly suggested that pro se litigants use discovery to obtain the facts of their case.
However, the foreclosure mill law firms very often engage in egregious discovery abuse. They will object, evade, stonewall, and otherwise engage in illegal and unethical conduct.
In some instances, IF you have done a GOOD JOB with your discovery and KEPT REALLY GOOD RECORDS, you can use this misconduct to your advantage!
It is very often a good idea to ask the same or a similar question in more than one way. Since the plaintiff is going to stonewall you anyway, you need to be ABSOLUTELY CLEAR that the plaintiff FAILED TO GIVE A RESPONSIVE ANSWER TO YOUR QUESTION.
In many places, the summary judgment rules provide an express mechanism to seek a continuance to conduct addtional discovery. And IF you have been conducting some written discovery all along and then ask for more time to take some depositions or to ask additional follow-up questions, the court will probably allow this. But if you wait until the very last minute and then ask for a continuance without EVER having conducted discovery AT ALL, then the court may very well decide that since you failed to exercise diligence in discovery, that no extension is warranted.
The Rules and the cases interpretting these Rules VARY from jurisdiction to jurisdiction. YOU NEED TO FAMILIARIZE YOURSELF WITH THE RULE OF YOUR JURISDICTION. NO ONE ELSE CAN DO THIS FOR YOU.
I think that Ann's suggestion that you schedule a deposition and then ask for an extension is a BETTER idea than just asking for an extension. It also might be even MORE ideal to schedule one or more depositions to occur BEFORE the summary judgment proceeding and then put the plaintiff in the position of asking the court for a protective order.
If your summary judgment proceeding is this week, you are probably already out of time and if you didn't conduct any discovery at all, I would find it unsurprising if the court doesn't grant a continuance.
If you still have a couple of weeks, get the notice and subpoena out (CHECK YOUR JURISDICTION's RULES). Put the plaintiff in the position of asking the Court for a protective order. It is going to be really difficult to justify NOT letting you depose a witness that they want to use as an affiant.
As to your question about doing a deposition pro se, though I am unaware of a prohibition, I would NOT think that this would be a good idea. Frankly, an expreienced attorney is going to mostly eat you for lunch objecting and obstructing the deposition. For that matter, he will probably find a pretext to SUSPEND the deposition (taking the witness and leaving), putting you in the position of going to the Court seeking redress. In the "he" said -- "she said" dynamic, you are going to find that the Court is going to tend to side with the attorney.
I think that it will probably prove difficult to find an attorney to represent you SOLELY for the deposition, but there may be one saving grace. That is the fact that the affiant is very possibly located OUT OF STATE anyway. So if you are seeking to depose a GMAC affiant (PA), a Bank of America affiant (TX) or a CitiMortgage affiant (MO or MD), you may very well be REQUIRED to take a deposition out of state.
So EVEN if you were represented by an attorney, HE would probably contract out taking the deposition to a local counsel in the place where the witness was located. This would probably be more economic than having your attorney travel to one of these locations.
So it seems to me to be possible to engage the services of an attorney solely to take the out of state deposition WITHOUT this attorney entering an appearance in the case. AGAIN, CHECK THE RULES OF YOUR JURISDICTION.
There are really only two forms of evidence which are admissible in a summary judgment proceeding. These are affidavits and discovery responses.
If you haven't conducted any discovery, make sure that you have bolstered your defensive case by using strong, credible and truthful affidavits in your summary judgment response. In some places, these must be FILED IN ADVANCE OF THE HEARING. DO NOT MISS THE DEADLINE. DO NOT EXPECT THAT YOU CAN TESTIFY OR GET OTHER EVIDENCE BELATEDLY INTO THE RECORD AT THE HEARING. IF YOU DIDN'T FILE A TIMELY RESPONSE WITH THE REQUISITE EVIDENCE YOU WILL ALMOST CERTAINLY LOSE.