In personal injury cases in Florida, depositions—interviews or interrogations conducted by lawyers of the claimants, defendants, and witnesses—are used to understand and evaluate the facts of a case. They are also inevitably used as evidence to persuade either the judge or jury to rule in favor of one side over the other. One simple question answered in a particular way often changes the outcome of an entire case.
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How, with whom, when, and where a deposition is conducted is often hotly contested and frequently litigated between parties. For example, if one side does not agree with the location, time, or duration of a deposition, as well as who the witness is, the question being asked, or even a document it has been requested to bring to the disposition, that side is able to seek assistance from the court if it feels it is being needlessly harassed or burdened by the other side. This sort of assistance or protection comes in the form of a request called a Motion for Protective Order.
For example, recently in a Florida medical malpractice case, a Certified Registered Nurse Anesthetist (CRNA) was being sued by a patient who alleged that he was burned by a heating pad that was improperly placed and monitored during a procedure. The nurse had been deposed (interviewed) in another case that was brought by the patient against different defendants for the same incident. Now the nurse himself was being sued, and the patient’s lawyers wanted to take the nurse’s deposition—not as a witness, but as a defendant party.
As a personal injury trial lawyer in Florida, I understand this. The tone and type of questions I might ask a witness when seeking to find favorable testimony to use against a defendant would be entirely different from the questions asked of a defendant I was seeking to prove responsible for my client’s injuries and damages.
In this case, the nurse’s lawyers asked the trial court judge to enter a protective order and prevent the deposition from occurring, which would require that they demonstrate to the trial judge a “strong showing [of good cause]” as to why the deposition should not go forward. Somehow, under these circumstances, the trial judge agreed that the nurse’s second deposition should not go forward and ordered the deposition to be cancelled.
Fortunately, the plaintiff patient’s lawyers appealed, and the trial judge’s order was reversed, for these reasons:
A protective order deals with the discovery or investigative process of a case, and appellate courts generally do not want to meddle in a case until there is some final decision or judgment. However, in certain circumstances such as this, they do—but only when three essential elements can be shown to justify an appeals court’s involvement:
- That the trial judge’s ruling was outside the “essential requirement of the law”
- The trial judge’s ruling “materially” injured the remainder of the case
- The trial judge’s ruling could not later be “corrected on post judgment appeal.”
The appellate court found that of the three elements, the last two, material injury and lack of remedy on appeal, justified their immediate involvement and review of the trial judge’s order. Appellate courts across Florida have routinely found against depriving a party in a civil case—such as a medical malpractice case, car accident case, or slip and fall case—when orders by trial judges interfere with the ability to depose a “material witness,” such as the actual defendant in a lawsuit. Even in pending cases, appellate courts have rendered such opinions because there is no way to evaluate whether or not a material witness’s testimony would have made a difference after the fact—once the case is over and a final appeal is brought.
The nurse’s lawyers argued that they are not preventing the nurse from being deposed, but rather since he already had been deposed—albeit as a witness and not a party—that it would be unfair and harassing to have him undergo a second deposition. This argument misses the point: Since the nurse was not a party at the first deposition, and just a witness, he had not asserted any of the typical defenses that parties make after being sued in a personal injury case. Those defenses include, amongst other things, crucially important facts that need to be explored by the injured patient’s lawyers in order to prepare and further evaluate the case for a jury trial.
It is always best to depose a witness before a trial in the hope that there will be fewer surprises in what that witness may say in front of the judge and jury. It has often been said and bears repeating here, “One proceeds to cross-examine a party at trial at one’s own peril, without a prior oral deposition.”
Deposition testimony has the same weight and effect as though it were being given in front of a judge and jury. Accordingly, at our maritime accident and personal injury law firm in Miami, we take the deposition of our clients as well as the cruise line’s corporate representatives very seriously, often preparing for days before our clients actually testify.
If you have been injured in a car accident, a slip and fall, as the result of the carelessness of a doctor or nurse, or because of a dangerous condition on a cruise ship, contact our office today for a free and confidential consultation with an experienced Florida personal injury attorney—by telephone at 305-441-0440 or toll-free at 1-866-597-4529, email at [email protected], SKYPE, or Facebook.
We are focused on getting our clients money and reimbursement for their time lost from work, medical bills, damage to their car or property, and pain and suffering. Call us today—we are ready to help.