Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
Now, at this point, we’ve been through several proceedings legally with court appearances, we’ve also gone through the discovery process to a certain degree, what’s next? Well, if your case is a misdemeanor case, you do not have a right to a pretrial deposition. If your case is a felony case, then you do have a right to a pretrial deposition. What’s the deposition? Well, that’s where court reporter comes in just like a court reporter could be in a courtroom and a witness is sworn to tell the truth just like in a courtroom, only unlike trial testimony, which is more narrow and restricted, deposition testimony is much broader because you are using it for the discovery process. A lot of states are not discovery states. They are what are known as Preliminary Hearing States. In other words, you’ll have a probable cause hearing even though you know the judge is going to find probable cause in many states simply because that’s the only way you have as a lawyer to get evidence. You do not have the right to use a notice of discovery and to elect and participate in the discovery process, like you do in Florida.
So, a judgment call will have to be made, is it worth the expense, time and effort to depose witnesses? Are you going to make a witness angry who might be helpful? Can you get the information without using a deposition? I mean a lot of questions have to be answered and your legal team is going to have to make some judgment calls along the way. But the basics are this. If further testimony from a witness is needed, then what your lawyer can do in a misdemeanor case is do a motion before the court that is called a Motion to Take Pretrial Deposition Testimony, and that can be styled a little bit differently but that’s basically what it is. Then, if the prosecutor agrees, an order is forwarded to the judge and the judge signs the order. If the prosecutor does not agree, and you have to assume that they are not, then you have a hearing and your lawyer has to explain why a pretrial deposition is needed in a misdemeanor case. Then if the judge grants it, then the witness is given a subpoena, and then after the subpoena is served and you get a notice that it’s been returned as served, then the deposition is held at the time and place that it’s scheduled and the witness is asked a series of questions.
In a felony case, you have a right to depose witnesses with very little limits. Now, there are some technical things that go into how witnesses are listed. For example, if it’s a category A witness, you can automatically depose them, no question is asked. If it’s a category C witness, then you got a problem. As a lawyer, you have to argue that this witness belongs in a different category that allows you to take their deposition. But as a general rule, for most witnesses who are going to be category A witnesses in a felony case, you have a right to take their deposition. Now, that doesn’t always mean that you should. If you have a favorable complaining witness and the state will always call this person a victim, you haven’t been convicted of anything, your family member hasn’t been convicted of anything but they are going to be running around the courtroom trying to holler victim every time they can. If they try this in front of a jury, your lawyer should object and ask the judge for a ruling, prohibiting them from using the word “Victim” before the jury panel, the venire panel even comes in. That’s my normal practice.
But either way, depositions can be useful in that they educate the state that they have overcharged and they needed to reduce charges, and it also provides proof to get past that obstacle known as the felony supervisor who I spoke about earlier.
And then, finally, you need to be very careful with depositions because I can’t tell you how many times I have been waiting outside of the deposition room, at a court reporter’s office or the state attorney’s office or wherever only to find that as the lawyers are coming out, the state attorney is happily writing on their file and the defense lawyer is kind of walking out like that with their head to the floor. Why are they doing that? Well, they didn’t pay attention carefully before they conducted the deposition, and as a result, what happened was that witness just gave the state the ability to file additional charges, the last thing you want.
So, the taking of a deposition is a very important judgment call. When it comes to the costs of depositions, those are not included in a legal fee and they can range all over the place depending upon what part of the state you’re in. In one part of the state, a court reporter will charge $125 to show up for the first hour, and then a different rate for every hour thereafter. And in another part of the state, a court reporter might charge $250 an hour. A subpoena might cost $50 to get served in one part of the state and $95 in another part of the state, so all things are local. When it comes to depositions, this is something you want to ask your lawyer about, you want to know what kind of costs are involved because they are coming out of your pocket, your family member’s pocket or whoever is paying the legal fee as well as the costs in the case, and you have to basically do a balancing test that revolves around one single question, and that question is, “Is it worth it?”
In our next session, we are going to be talking about some other things to do before getting ready for that all important point, “Where that upside down letter Y wheeze out and either goes to trial or goes to a settlement?”.
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