As one of my former bosses used to say, If it ain't in writing, it ain't. Many times I've been asked about the need to put understandings or agreements with partners, fellow shareholders, employees, customers etc. into writing. While for the most part verbal agreements have the same legal force and effect as written ones, they are much tougher to prove and therefore, to enforce.
Put it in writing. Fancy legal terms are not required (but may certainly help). Ask yourself, What is it we are agreeing to, and in the simplest, clearest language put it into a confirming letter, memorandum signed by the parties, even an email is better than nothing. In my view, email has been a boon to the extent it compels people to organize their thoughts, be concise and informative, and put things in written form that can be saved, reviewed later, etc.
Depending on what's at stake, and to be on the safest side, ask an experienced lawyer to review the writing before you send it. Ask if you can email it to him/her in draft form. An ounce of prevention is worth a pound of cure. As time goes by, memories fade, disagreements arise, you'll be glad you took a few moments to "put it in writing."
Wednesday, July 10, 2013
Today's newspapers report a Texas judge has refused Armstrong's request to dismiss an insurance company's lawsuit seeking the return of bonus money it paid him from 1999 to 2001. Depositions (questioning the cyclist under oath) and other information gathering discovery are sure to follow. As I've written before on this blog, fraud-based civil lawsuits against doping athletes and their enablers seeking return of monies paid would be a huge deterrent against such cheating. Look for more cases soon, including against some equally high-profile players.
Saturday, July 6, 2013
In the shadow of the Capitol
By the sunlight of the day
In the hushed and musty courtroom
The witness has her say.
The judge who’ll soon retire
The parties who’ve lost their fire
The jury in facts mired
The lawyers anxious and tired.
If eyes could answer what we seek
If silence spoke what one won’t speak
If what’s kept out is what seeps in
There’d be no need for trials then.
Entranced by legal ritual
In stiff and creaking chairs
What’s fair and what is just
Lies behind the jurors’ stares.
-Dave Sanderson, 5/16/05, during a trial in Denver District Court, copyrighted 2005
Monday, July 1, 2013
In a deposition, you, the deponent, answer under oath questions asked of you by a lawyer, the examiner, usually relating to a pending civil lawsuit. For example, maybe you witnessed a car accident, or worked with someone suing an employer, or have knowledge about a business dispute. You may be required to share what you know with one side or the other in a related lawsuit. Same goes if you are a party to a lawsuit. Depositions can last hours or days., depending on the issues. How does it work?
An officially recognized court reporter is present at the office or conference room to record your answers and upon request (and payment of a fee) produce a written transcript of your testimony for use by others later in the case including at trial. Most often deposition transcripts are used at trial to try to show you are fabricating or mistaken about your testimony, even if neither is the case. They are used in pre-trial matters like motions to help argue for or against a point of fact or law. Accordingly, the goal of the deponent should be truthfully to answer questions (without giving unnecessary information). Here are some things you should and should not do:
- answer truthfully
- speak slowly and clearly
- leave room for nervous omissions, mistakes or faulty memory where appropriate, such as "at this time," "right now," "as I recall," "off the top of my head," "I do not remember all the details right now," and the like (especially with questions asking you to list or detail something)
- answer verbally (so the reporter can hear and take down your answer)
- let the examiner finish his/her question before answering
- repeat the question in your mind before answering
- answer "I don't recall," "I don't remember," or "I don't know" if that is the case, and leave it at that
- take a break (while a question is not pending) if you wish to use the restroom, compose your thoughts, talk to your lawyer, etc.
- review interrogatory and other sworn or recorded responses or statements already provided by you before the deposition.
You should not:
- repeat yourself
- explain an answer unless asked to do so
- fill in “awkward silences” with unnecessary testimony
-volunteer anything, or offer to get or look for anything or talk to any person. Do not refer to or mention anything or any person you do not wish to produce or identify unless required
- bring anything to the deposition unless you clear it with your lawyer first
- anticipate the question, or what you think might be the "real" question
- give non-verbal cues (fidgeting, frowns, grimaces, smiles)
- talk about anything you and your lawyer have discussed
- ramble on or add unnecessary afterthoughts (and most are)
- argue, be cute or tricky, use profanity or sarcasm
- answer a "yes" or "no" question any other way
- apologize for an honest answer. The truth never changes, so stick to it.
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