T'was a good day in court this morning.
In the never-ending case of the Pro-Per Plaintiff and Pro-Per Third-Party Defendant against my client, I made a significant tactical victory.
You see the Pro Per Third-Party Defendant, girlfriend -- and now wife -- of the pro-per plaintiff who we pulled into the case basically on the theory that if the Plaintiff gets anything against my client, she is liable to indemnify my client for any loss.
When I took Pro Per Third-Party Defendant's Deposition, she decided to get cute and refuse to answer a number of questions, claiming privilege because they are now married.
I did note then that that is not how it works as they weren't married at the time, and I wasn't even asking about communications but even observations of his claimed health status. I did ask about communications as well, and got blocked there too.
No that's not how the privilege works, but fine, go ahead and not answer then.
So I did a motion that argued per the court rules she can't change her ind and now talk about that stuff at trial:
A party who claims a privilege at a deposition may not at the trial offer the testimony of the deponent pertaining to the evidence objected to at the deposition.
So, since she refused to answer at the deposition, I file the motion and argue she can't testify at trial to everything she refused to testify to at deposition and attach the pages of the deposition transcript showing her refusing to answer and claiming privilege.
She then files a reply claiming I'm lying and she didn't refuse to answer, and she didn't really understand what she was doing by raising privilege, and who is the court gonna believe: Her or the Court's own lyin' eyes reading the transcript?
For those who are interested, the legal version of "Bitch, please" is "The Third-Party Defendant is being rather disingenuous".
As in "Third-Party Defendant is being rather disingenuous when she now claims in her response that she did not raise privilege and refuse to answer when the transcript of her deposition clearly shows her refusing to answer and stating on multiple occasions "I'm refusing, also privilege" (Ex A p.#); "I'm not waiving privilege"Ex A p.#); and "I'm not going to answer, privilege" (Ex A p.#).
The Court decided to side with my argument, the law, and it's own eyes over the Pro-Pers, about time.
So, the Court actually held one of the Pro-Pers to the rules and now you can't testify to anything she refused to answer during the deposition. This really puts a hole in their case as they don't have much in the way of witnesses to testify to his alleged condition, and it pretty much knocks her out as a witness for him, but keeps her in nicely for our claim against her. Going to be a lot harder for him to present his case as a result.
This trial is gonna be lit.
5 comments:
Aaron,
Gotta admit, I'm glad you're a Lawyer and I'm not. If you held a gun to my head and told me to explain that posting, I'd be a dead man. But...If you're licensed in Texas and I ever need a lawyer, I'm calling you.
I think that I understand what you wrote. And I think that she screwed herself by trying to play cute, and act like she was smarter than you, and then show up at trial and try to again show just how much smarter she is than you. Fortunately you got a judge who was both smart enough to catch this, and who had guts enough to not let her get away with it. I can imagine that a lot of judges would simply let it slide, playing the old, go along to get along, type of game.
I don't watch much court cases for real, but I have been in enough courtrooms myself, just during my own family court, to know that some judges figure that it is their court room and by gosh, they will run it however they darned well they please!
I had that same experience in just a mediator session. The heck of it is, you have to play along, or you know that you are screwing yourself. Especially for a man, in a case involving child custody or child support. They will say it is not so. They lie.
Yay, a win for the good guys! :-)
juvat: basically if you refuse to testify about something at a deposition and refuse claiming you have privilege not to, you can't turn around at trial and decide to testify about it. She wanted to be cute and have her cake and eat it too, and I put a kibosh on that.
pigpen51: Yep, she wanted it both ways. The judge actually enforced the rule this time, which helped a lot, if he hadn't since this was a blatant issue, he'd give grounds for an appeal of his decision and judges don't like to get overturned.
You do have to keep the judge/mediator in mind in all of this as their personality does indeed matter - the biggest mistake people make is out and out aggressive arguing with the judge - there's a right way to bring up a disagreement and a wrong way and, a lot of people go for the wrong way.
Old NFO: Yep, it was a good win.
As the great 18th century Jurist Muntz said:
"HAW HAW"
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