Choosing Someone to Testify at a Corporate Deposition

Written by on March 14, 2012 · Leave a Comment

When an entity, such as a corporation, association, or governmental agency (collectively referred to here as a “corporation” for ease of reference) is a party to a lawsuit, another party in the lawsuit may take the corporation’s deposition.  The party taking the deposition must send a notice to the corporation specifying the topics on which the corporation will be deposed.  The corporation must then designate a person or persons who will testify on each topic.

The corporation does not necessarily have to designate the person most knowledgeable on the topic; it must only designate a person who has consented to testify on its behalf and who is prepared and equipped to testify to the “matters known or reasonable available” to the corporation on the chosen topic.  Generally, however, the corporation chooses an officer, director, or managing agent, because it is required to provide a deponent with meaningful knowledge of the specified topics.  The Arizona Court of Appeals has held that “Providing an uninformed warm body for a Rule 30 deposition approximates providing no one at all. . . . [W]hen a deponent does not answer legitimate questions asked at a deposition, the conduct is the same as if he did not attend at all, allowing the court to impose sanctions. . . .” Groat v. Equity Am. Ins. Co., 180 Ariz. 342, 346 (App. 1994).

The corporation has the option to designate different people to testify on different topics, or one person to testify for the entire deposition.  Either way, the testimony becomes the sworn testimony of the corporation itself.  Additionally, a person’s testimony at a corporate deposition does not preclude that person being required to also give separate testimony in his or her individual capacity.

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Basic Differences Between Mediation and Arbitration in Commercial Litigation

Written by on February 2, 2012 · Leave a Comment

In civil commercial litigation, MEDIATION generally looks like a settlement conference.  Both sides present their position to a neutral mediator.  The mediator typically separates the parties and speaks to each side separately (and often confidentially) regarding the pros and cons of their positions, evidence, and arguments.  If the parties are able to reach a settlement, paperwork is drawn up to settle the case.  If a settlement is not reached, the parties are free to continue to litigate the case.  Mediation typically does not require that a party do anything other than participate in good faith.  A party is not required to settle, and the mediator typically does not have the authority to render any kind of decision or judgment without the agreement of the parties.  (Some exceptions exist.).  Courts often mandate, however, that the parties participate in mediation, even though no result or settlement is required.

ARBITRATION looks more like an informal trial.  Both sides present their case, including evidence and arguments, to a neutral arbitrator, who then renders a decision just as a judge would in court.  In Maricopa County, Arizona, cases seeking less than $50,000 in damages are required to go to an arbitrator.  The arbitrator’s decision, however, generally may be appealed to the Superior Court by either party.  In some cases, where the parties have agreed by contract that a case will go to binding arbitration rather than to a court, the arbitrator’s decision may be final, with no rights of appeal.  Be aware of such arbitration clauses in contracts.

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Happy New Year

Written by on January 9, 2012 · Leave a Comment

Happy New Year!  In the spirit of the new year, I am starting this blog, which will be updated once per month.  Its purpose is simply to give an overview of a legal issue, dilemma, or topic from which I believe numerous people might benefit.  PLEASE UNDERSTAND THAT THE ITEMS DISCUSSED IN THIS BLOG DO NOT CONSTITUTE LEGAL ADVICE AND ARE NOT GUARANTEED TO BE ACCURATE.  The reason for this disclaimer is that every situation is different.  The laws of various states or countries may apply, and the facts of each situation may dictate different results.  These posts will simply give the reader an overview, or introduction, to a topic so the reader may have a little bit of information in his or her back pocket before making decisions about how to handle a particular issue.

This first post will address something that I have told nearly all of my clients:  Litigation is usually expensive, lengthy, and takes an emotional toll; therefore, suing someone is a decision that should be made with care.  Even in a case where you believe you are 100% right and have obviously been wronged, you will not be spared the expense and effort required by litigation.  The other side almost always believes in its position as much as you do.  Cases can easily take two years or more to litigate.  Some claims allow the winner to recoup its attorneys’ fees from the loser, but the litigant still must be able to fund the litigation until a winner and loser can be declared.  And there are no guarantees.  Why do I tell you this?  After all, I make my living representing people who DO want to litigate.  I tell you this because I don’t want anyone getting into something they regret.  I want litigants to be as prepared as possible for what lies ahead.  I want litigants to make an informed decision, so that once they decide to go to court, they’re all in.  I want litigants to have reasonable expectations and I want those expectations to be met.  I have seen many people cause themselves a lot of suffering because they made decisions about litigation with their emotions—especially anger.  Litigation is a financial/business decision and should be treated as such.  In many cases it makes sense, and thank goodness we have a justice system that allows litigants to bring claims against those who have wronged them.  Such a decision, however, should always be made with one’s head and not one’s heart.  Indeed, one of the benefits of having a lawyer is to help clients manage their emotions—to give them just the facts and probabilities, or, in other words, to help them use their own heads.  Here’s to a year full of smart decisions!

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