Elder-Law-Advocate

Discovery – Evidence Gathering

We practice elder law in Riverside County, California and surrounding communities.  This brief article discusses the “discovery process”, the gathering of evidence to prove your claim or defense.  Although not unique to seniors or elders, the evidence-gathering tools are presented in the light of an elder law scenario.

Formal evidence in California civil elder abuse cases is gathered through the “discovery process”.  Informal evidence is also obtained, in the form of interviews, declarations, and collection of documents and other things that do not need to be acquired through formal discovery.

Under California Code of Civil Procedure Section 2019.010, et seq., the following methods of discovery are allowed each party to prepare their case for trial:

(a) Oral and written depositions.  An oral deposition is the attorney’s one chance to ask questions of an opposing party or witness.  The deposition is usually held at the attorney’s office.  The party being deposed (“deponent”) is entitled to have his/her attorney present.  Although the deposition may be taken in an informal setting, the testimony given carries as much weight as if it were in a court of law, and the penalty for giving perjured testimony is the same.

A certified shorthand reported is also present.  Their job is to write down every word that is spoken (every question – every answer) and then transcribe the deposition into a booklet form which will then be made available to the deponent for review and to make any necessary corrections in testimony.

The deposition transcript will not be used as evidence at trial.  However, if the witness gives different court testimony than that given during his or her deposition, the opposing lawyer may read the relevant portion of the deposition as evidence.

A cardinal rule of being a trial lawyer is to never ask a question that you don’t already know the answer to.  The attorney knows the answer because he asked the question during deposition.

In limited circumstances, a deposition may be taken in writing.  This is similar to written interrogatories (discussed-below).   A written deposition is generally not advisable because the opportunity to ask spontaneous follow-up questions and to view the witness’ demeanor, as answers are given, is not available.

(b) Interrogatories to a party.  These come in two forms: Special and Form (Judicial Council) interrogatories.  Interrogatories are written questions that must be answered, in writing, under penalty of perjury.  Special interrogatories are drafted to ask questions that are specifically relevant to the facts of the case.  Form interrogatories are just that – a form that was prepared by the Judicial Council.  These form interrogatories ask questions pertaining to basic information of the parties: name, address, telephone number, insurance information, etc.  They are useful to receive preliminary facts and contentions.

(c) Inspections of documents, things, and places.  In elder abuse cases, a demand for production of documents is always prepared to obtain copies of every relevant piece of paper that could prove or disprove a claim.  Nearly always, this demand (along with subpoenas for records of non-parties) must be completed before a deposition is taken.   Absent extraordinary circumstances, only one deposition per person is allowed.  The attorney must be sure that s/he has all relevant documents at hand before asking questions at a deposition.

“Things” can be inspected as well.  In a physical abuse or neglect case, the “thing” may be a weight scale hoist that was used to lift the patient from her bed in order to weigh her.  Somehow, the hoist malfunctioned and caused a heavy weight to come crashing down and break the patient’s leg.  A demand for inspection will allow the attorney (and his expert witness) to examine this contraption to determine how it malfunctioned and caused injury to the client.

Lastly, “places” can be the subject of an inspection demand.  After proper notice of the demand, and at  a date and time certain, the lawyer can inspect the place where an incident occurred.  It could be a nursing home, the elder’s residence (now occupied by a defendant in the case), or any other specific location where wrongdoing is alleged to have occurred.

(d) Physical and mental examinations.  The defendant in an elder abuse case will often want to have the elder examined by a doctor, psychologist, or other medical professional to determine the extent of any injuries that the elder victim is alleged to have suffered.   In the case of financial abuse, the examination may be a psychological one to assess the elder’s legal mental capacity at the time a certain transaction occurred that separated the elder from his or her money and property.

(e) Requests for admissions.  These are somewhat akin to written interrogatories but, instead, require the responding party to admit or deny certain allegations or facts.  While easy to respond to, requests for admissions can also have a potentially devastating impact if not responded to timely.  A failure to respond can result in a motion by the propounding party that requests the court order that all requests for admissions be deemed admitted.  If granted, it’s essentially a death sentence for the non-responding party.

(f) Simultaneous exchanges of expert trial witness information.  Just before trial, any party may demand that each party mutually disclose the identity, qualifications, and subject matter of each expert witness the parties intend to call at trial.  Once done, each party may take the other expert witness’ deposition.  This is a necessary discover step because, without doing so, you risk violating the cardinal rule of never asking a question at trial that you don’t already know the answer to.

This evidence gathering is the backbone of the discovery process and leads to uncovering the truth about the case.  Through this process, admissible evidence can be presented to the judge and jury to prove whether elder abuse occurred.

If you need help regarding elder or senior law concerns, please pick-up the phone and give us a call.  The initial telephone consultation is free.  We’re here to help.

Copyright.  2007-2013.  Law Office of George F. Dickerman.  All rights reserved.

Elder-Law-Advocate