DSNews delivers stories, ideas, links, companies, people, events, and videos impacting the mortgage default servicing industry.
Issue link: http://digital.dsnews.com/i/1196094
28 will question the witnesses directly from the complaint, as an easy way to determine the witness' level of knowledge of the case. As such, understanding the basic framework of the case, as set forth in the complaint, can organize the testimony and enhance the testimonial credibility. After review of the complaint, it is important to understand the opposing parties' position, and a review of the answer and defenses can be very helpful in determining what issues the witness may be required to testify. It should be noted that, by the time a witness is selected and trial is set, the attorney should have narrowed the arguments in the case to as few issues as possible. In reviewing the answer and related orders, it is important to confirm whether any defenses were stricken and whether summary judgment has been entered as to any of the issues. It should always be the attorney's goal to have as few outstanding arguments at trial as possible in order to limit the material a witness needs to be prepared for testimony. Motions to Strike and Summary Judgments regularly can reduce what would be a 10 affirmative defense answer to one or two specific arguments. REVIEW THE DISCOVERY In addition to reviewing the pleadings, a review of the discovery is also highly recommended. Any answers given in response to discovery can limit the testimony available to a witness at trial. If an interrogatory gives an answer, or a response to a request for admissions admits or denies a fact, the witness testimony is limited by those responses and should not controvert those discovery responses. Likewise, a party is generally limited to utilizing the documents at trial that is provided in response to a Request for Production. If a response to a production request denies a specific document exist, or objects to the production, a strong argument can be made that the document cannot be used at the trial. Review of the discovery is needed in regards to deposition testimony. If a witness or other corporate representative from a party has given deposition testimony, it is imperative the witness be aware of and reviews the testimony to ensure consistency between the answers. Inconsistency between testimony at deposition and testimony at trial may be fatal to witness credibility, and even to the case in its entirety. HOLD AN ATTORNEY-WITNESS MEETING e attorney and the witness are a team at trial, and the closer they can coordinate and work together, the higher the chance of a successful outcome. It is for this reason a trial preparation call or meeting between the witness and attorney is necessary, and advisably as early in the preparation process as possible. In order to have the most effective witness preparation meeting, the witness should review the pleadings and discovery, and the attorney should provide the witness with all expected exhibits and an outline or summary of the case. An effective outline of the case should include information on the status of the case, information on the judge and opposing counsel, and, in addition, should include any specialized questions based on the issues the attorney feels may be necessary. While the law is supposed to be equitably applied, experience shows each judge and each opposing counsel are different, and the law can apply differently based upon the situation and the facts. is is another reason why the attorney-witness meeting is so important, as both the attorney and witness have varied experience, and can work together to determine what to expect at trial. DETERMINE WHAT DOCUMENTS/ INFORMATION IS MISSING One of the most beneficial outcomes from the attorney-witness preparation meeting is identifying what documents will be the most useful in their testimony. Often, the witness has knowledge of the corporate documents and the ability to access them for trial testimony. e seasoned witness, in their court experience, has a better grasp of what corporate documents work for matters of proof, which can be very helpful to the attorney. Unfortunately, if these documents were not made available prior to trial being set, it may lead to evidentiary challenges. is highlights why the initial attorney- witness preparation call should be held as early as possible. If new documents are discovered early in the preparation period, it is more likely these can be produced in a supplemental response to discovery and A party is generally limited to utilizing the documents at trial that is provided in response to a Request for Production. If a response to a production request denies a specific document exist, or objects to the production, a strong argument can be made that the document cannot be used at the trial. Legal Industry Update NATIONAL FOCUS By: Jane Bond and Curtis Wilson