Depositon potpourri or helpful hints to avoid deposition fatigue.

• Author: Mason, Steven G.
• Position: Florida

Our experience has been that depositions can be an incredibly helpful tool in either prosecuting a civil lawsuit or defending against charges levied by the state. On the other hand, experience has likewise taught us that depositions can be one of the most befuddling and stressful aspects of a lawyer's trial practice. The latter probably results from lawyers who are unfamiliar with the rules or who go astray when outside the watchful eye of a judge. This article will help some of you with the day-to-day issues that arise during depositions.

Sworn Statements Absent Compulsion

A deposition is nothing more than a sworn statement made under compulsion (e.g., a subpoena or court order) taken for the purpose of discovery. Black's Law Dictionary, 5th Edition, p. 396 (1979). However, absent compulsion, an attorney is free to interview intended witnesses without the presence or input of opposing counsel. This long-standing legal principle was recognized by the court in Devlin v. Rossman, 205 So. 2d 346 (Fla. 3d DCA 1967):

It is the general rule that attorneys for one party in a pending cause are free to interview the other party's intended witnesses without the consent or presence of opposing counsel. 35 Fla. Jur. Witnesses [sections] 5. This presupposes that the person thus sought to be interviewed is willing to submit thereto. If he is not, he may insist that his views or testimony be given only upon deposition or at a trial or other court proceeding in the cause, after having been subpoenaed.

Id. at 347. See also U.S. v. Saa, 859 F.2d 1067, 1074-1075 (2d Cir. 1988) (defense counsel entitled to ask informant directly whether he will submit to interview); Gilbert v. State, 547 So. 2d 246, 249 (Fla. 4th DCA 1989) (improper to interfere with right to informally interview witnesses).

Therefore, contrary statements notwithstanding, it is not improper to take a sworn (voluntary) statement from an unrepresented witness. It is, in fact, sage trial strategy. For cases discussing contacting former employees of an adverse party, see H.B.A. Management, Inc. v. Estate of Schwartz, 693 So. 2d 541 (Fla. 1997); Reynoso v. Greynolds Park Manor, Inc., 659 So. 2d 1156, 1158 n.2 (Fla. 3d DCA 1995) (citation to cases reaching a contrary conclusion); Browning v. AT & T Paradyne, 838 F. Supp. 1564, 1567 (M.D. Fla. 1993); Rule 4-4.3, Rules Regulating The Florida Bar (contact with unrepresented persons).

Distinction Between Criminal and Civil Cases

The general rules that govern discovery depositions can be found at Fla. R. Civ. P. 1.290 through 1.330, Fla. R. Crim. P. 3.220(h), and Fed. R. Civ. P. 27-32. The major distinction between the Florida civil and criminal rules is that there is no automatic right to take depositions in misdemeanor cases, whereas such a right exists in felony cases. See Fla. R. Crim. P. 3.220(h)(1)(D). In misdemeanor cases the accused must file a motion with the court demonstrating good cause to take a deposition. There are few reported cases addressing exactly what is "good cause." However, two helpful cases are State v. Sheffer, 6 Fla. L. Weekly Supp. 512 (Fla. Orange Cty. Ct. 1999) (where arrest report lacked specificity, depositions warranted); and State v. Greene, 6 Fla. L. Weekly Supp. 561 (Fla. Duval Cty. Ct. 1999) (complexity of issues constitutes good cause). Further, in criminal cases the accused does not have an absolute right to attend depositions, but rather must obtain leave of the court. See State v. Ceccarelli, 7 Fla. L. Weekly Supp. 683 (Fla. Orange Cty. Ct. 2000) (where police waited several weeks after alleged incidents to make arrests, prejudice established, and attendance at deposition appropriate). There is no express provision for depositions in federal criminal cases; however, under certain circumstances the court has discretion to allow same. See Fed. R. Crim. P. 15; United States v. Wilson, 601 F.2d 95, 97-98 (3d Cir. 1979).

One point that criminal law practitioners may overlook is that the Florida Rules of Civil Procedure overlap and are controlling on many issues not addressed in the criminal rules.

Except as provided herein, the procedure for taking the deposition, including the scope of the examination, and the issuance of a subpoena (except a subpoena duces tecum) for deposition by an attorney of record in the action, shall be the same as that provided in the Florida Rules of Civil Procedure.

Fla. R. Crim. P. 3.220(h)(1).

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