Invoking the Rule During Depositions? Absolutely Maybe

When someone invokes the rule during a trial or deposition, they are asking for the rule of sequestration to be implemented. This means that certain witnesses must stay outside of the room while others are testifying, so that their testimony isn’t influenced by what they hear. However, the rule doesn’t apply to parties involved in the case or designated corporate representatives. In a lawsuit, there are rules about who can be present when a witness is giving their testimony. Some people, like expert witnesses and law enforcement officers, are allowed to be there. In criminal cases, victims, their family members, and their legal representatives can also be there. However, the judge can decide to exclude them if their presence would be unfair. In one court case, a husband wanted his wife to be at his deposition to support his side of the story. The court said that the other party could ask for the wife to be excluded, because having her there might influence what the husband said. In Smith v. Southern Baptist Hospital of Florida, Inc., the First District Court of Appeal in Florida ruled that the “sequestration of witnesses” rule, which says that witnesses should be excluded from hearing the testimony of other witnesses, does not apply during depositions. This means that parties involved in a lawsuit cannot ask for witnesses to be removed from a deposition room. Instead, they need to ask the court for permission before the deposition takes place. The First District court looked at a previous decision but didn’t agree with it. Instead, they looked at federal law for guidance. They found that federal courts don’t apply the rule about keeping witnesses separate to depositions, only to hearings and trials. They decided to adopt the same approach for Florida. F.S. §90.616 is a law in Florida that says witnesses can be excluded from a legal proceeding if a party asks for it. However, it’s unclear if this law applies to depositions. The term “proceeding” is not clearly defined, so it’s not clear if it includes depositions. The history of the law doesn’t provide much help in understanding its intent. However, it does mention a case where exclusion of witnesses was allowed, but not a case where it wasn’t. Overall, it’s still uncertain if F.S. §90.616 applies to depositions. The legislative history suggests that Florida law could allow the invocation of a certain rule during depositions. However, the term “proceeding” is not clearly defined and may not include depositions based on a different Florida statute. This means there is still some uncertainty about whether depositions are considered a “proceeding” under the law in Florida. The influence of federal rules on F.S. §90.616 has been mixed. Some Florida courts have looked to federal law for guidance, while others have not. The Fourth District recognized a federal evidence rule, but did not follow the federal pattern in its decision. The history of Section 90.616 shows that Florida wanted to align with the federal government, but ultimately went in a different direction. This means that parties in federal lawsuits cannot use a certain rule to keep a witness out of a deposition, while parties in Florida lawsuits can. If you’re a lawyer, you need to be prepared for depositions in different districts in Florida. In one district, you may need to use a case called Smith to argue that a certain rule doesn’t apply. In another district, you can use a case called Dardashti to argue the opposite. You also need to be ready with the specific law and legislative history to back up your argument. It’s like a game of chess, and you need to be prepared to make your move depending on which district you’re in. The arguments about using a rule in depositions work in all districts, not just the first and fourth. The key is to understand the law and make persuasive arguments to support your position. Until the courts clarify the rule, lawyers can use different cases and the law to argue for or against applying the rule in depositions. It would help if the Florida Legislature would change the law to include depositions in the rule. For now, lawyers have to use the tools they have to make the best arguments in depositions. In a complex business fraud case, a C.P.A. expert can advise the lawyer and testify in court. Experts are less likely to be excluded from testifying than fact witnesses. In a specific case, the plaintiff repeatedly named his wife as a witness, causing issues. The court can make orders to protect parties from annoyance or burden during discovery. Florida law allows experts to give opinions in court. An expert witness can provide specialized knowledge to help the court understand complex issues. Bryan R. Rendzio is a lawyer at a Jacksonville law firm. He handles construction and commercial disputes, as well as appeals. This column is written on behalf of the Trial Lawyers Section.

Source: https://www.floridabar.org/the-florida-bar-journal/invoking-the-rule-during-depositions-absolutely-maybe/