Problems At Trial: The Suddenly Unavailable Key Witness
If you've tried cases, you've probably lived through this nightmare. It's a few weeks before trial. You call your out of state client to make arrangements for your witnesses to be in the courtroom at the appointed time. But your contact tells you that the company has just fired your key witness.
What, you say? What were you thinking? How could you do that? I can't try this case without Pete. After the initial shock has faded, you start to hope that Pete will show up voluntarily. You ask your client about that. Well, they say, it wasn't a pretty parting. And sure enough, Pete laughs and hangs up on you when you ask him if he will come to North Carolina to testify.
Now you are in crisis mode, scrambling for a way to get this key testimony. There's a video deposition of Pete, but all the questioning was done by opposing counsel. You probably prepped Pete before the deposition with that common advice that he shouldn't volunteer information, so there are a lot of one word answers, terse responses, and not much presentation of the warm side of Pete. You didn't ask a single question, counting on Pete striding confidently to the witness stand to carry your client's banner during your direct examination. The video just isn't going to play well.
What now? You scour the Business Court Rules. Rule 18.10 provides some hope. It says:
18.10 – Trial Preparation After the Close of Discovery. For good cause appearing
therefor, the physical or mental examination of a party may be ordered at any time prior to or during trial. Ordinarily, the deposition of a material witness not subject to subpoena should be taken during discovery. However, the deposition of a material witness who agrees to appear for trial, but later becomes unavailable or refuses to attend, may be ordered at any time prior to or during trial.
Surely the unexpected firing of Pete is good cause, and you you make a motion to take a trial deposition of Pete per Rule 18.10. Will it be granted? Every case is different, but maybe not. A motion on similar facts was denied last week in the case of Hilb Rogal & Hobbs Company v. Sellars, in which Judge Diaz prohibited the taking of a deposition two weeks before trial.
The facts in Hilb Rogal need a little development. . . .
Continue Reading...
The lawyers who represented a class of Wachovia shareholders in the lawsuit over Wachovia's merger last year with Wells Fargo have gotten a ruling on
If you are removing a case to federal court where there are multiple defendants, it can be a tricky business. If the defendants are served at different times, when does the thirty days for a removal under
Only a handful of new cases were designated to the Business Court in January 2010. That may be a function of the cold weather, or perhaps it's a different kind of chilling effect, the
What is a "dynasty trust"? And what does that have to do with business litigation?
A
Does it make any sense to make a motion in limine before a bench trial? No, not according to Judge Diaz, who ruled as follows in a short Order in
Not responding to Requests for Admissions is dangerous. Rule 36 of the North Carolina Rules of Civil Procedure say that a request is admitted if not answered, and that “any matter admitted under [Rule 36] is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”