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December 22, 2013

Relief from Fault in Florida: Exculpatory Clauses and Indemnity Agreements -- Similar but Different Creatures

law books.jpgFlorida entities seek advance protection from their own negligence in two ways: exculpatory clauses and indemnity agreements.

An exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. Kitchens of the Oceans, Inc. v. McGladrey & Pullen LLP, 832 So.2d 270 (Fla. 4th DCA 2002).

An indemnity agreement arises when one individual takes on the obligation to pay for any liability, loss or damage that has been or might be incurred by another individual. Free Legal Dictionary. Some indemnity agreements purport to indemnify a party against its own wrongful acts.

Exculpatory clauses and indemnity agreements which attempt to indemnify a party against its own wrongful acts are viewed with disfavor in Florida. Since both are looked upon with disfavor by the courts, they are enforceable only where and to the extent that the intention to be relieved from liability was made clear and unequivocal and the wording must be so clear and understandable that an ordinary and knowledgeable person will know what is at stake. Exculpatory clauses: Gayon v. Bally's Total Fitness Corp., 802 So.2d 420 (Fla. 3d DCA 2001); Raveson v. Walt Disney World Co., 793 So.2d 1171 (Fla. 5th DCA 2001). Indemnity agreements: Cox Cable v. Gulf Power, 591 So.2d 627 (Fla. 1992); Charles Poe Masonry, Inc. v. Spring Lock Scaffolding, 374 So.2d 487 (1979); University Plaza Shopping Center, Inc. v. Stewart, 272 So.2d 507 (Fla. 1973); Florida Power & Light Co. v. Elmore, 189 So.2d 522 (Fla. 3d DCA 1966); and Nat Harrison Associates, Inc. v. Florida Power & Light Co., 162 So.2d 298 (Fla. 3d DCA 1964).

Our law firm is currently in the early stages of a case involving personal injuries and an indemnity agreement, but no exculpatory clause. Our catastrophically injured client was an independent contractor pulling large trailers owned by a Florida company. He was injured through the negligent maintenance of the trailer by the Florida company. He and the company have in place an agreement calling for our client to indemnify the company for injuries resulting from its fault.

The legal question is whether the indemnity agreement effectively precludes our client from recovering for his losses from the company. We believe that the answer is No. In our considered opinion, it would take an exculpatory clause, rather than an indemnity agreement, to deny our client the right to recover damages from the company for negligently causing his injuries.

Continue reading "Relief from Fault in Florida: Exculpatory Clauses and Indemnity Agreements -- Similar but Different Creatures" »

December 3, 2013

Florida's Third DCA Limits Personal Injury Duty Standard for Rental Car Companies

people.jpgOur client was a passenger in a Dodge Dakota truck owned and leased by Enterprise Leasing Company, when it overturned two to three times on the highway at high speed. The driver, who had rented the truck from Enterprise, had fallen asleep at the wheel. Our severely injured client was airlifted to Shands Hospital, in Gainesville, Florida.

We filed suit against the uninsured driver and Enterprise. We alleged that Enterprise negligently entrusted its truck to the driver. The facts forming the basis of this allegation against Enterprise:

  • The driver had a suspended Florida drivers license at the time of the lease transaction. While the driver presented to the Enterprise agent what appeared to be a facially valid Texas drivers license, it is unlawful to operate a vehicle in Florida when that driver has a suspended license in any state. Enterprise failed to perform a simple and inexpensive computer search to determine if the driver had a suspended license.

  • The credit card the driver presented to the Enterprise agent was rejected. Enterprise nevertheless rented the vehicle, in violation of its own policies and procedures, which called for the production of other forms of proof of personal responsibility.

Once upon a time, rental car companies could be held vicariously liable for injuries caused by the negligent operation of their vehicles by authorized drivers. (Whether vicarious liability applied in a state was a matter of state law. Florida is a vicarious liability state. Vicarious liability has been recognized in Florida since 1920. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Under this doctrine, a vehicle owner is liable without fault for damages caused by the negligent operation of his or her vehicle by a consensual driver.) As to rental agencies, this standard ended in 2005, when a Republican Congress, at the urging of then-President George Bush, passed the so-called Graves Amendment. The Graves Amendment substituted federal law for state law, providing blanket immunity to rental companies from vicarious liability. (So much for states' rights!)

While the Graves Amendment relieved rental companies from vicarious liability, it allowed to remain in place actions against agencies for negligent entrustment. The distinguishing feature of negligent entrustment from vicarious liability is that the owner is independently at fault in granting consensual use of the vehicle. Florida courts consistently hold that one who negligently entrusts a car to someone is liable for damages flowing from the misuse of that car. Clooney v. Geetting, 352 So. 2d 1216 (Fla. 2nd DCA 1977) ("we see no reason why this theory is not available to claimants injured in automobile accidents in this state.") The Florida Supreme Court long ago held that because the use of a dangerous instrumentality involves such a high degree of risk of serious injury or death, the highest degree of care is required. Skinner v. Ochiltree, 5 So. 2d 605 (Fla. 1941).

Enterprise denied that it negligently entrusted its vehicle to the at-fault driver. Enterprise argued that section 322.38, Florida Statutes, limited the scope of its duty to our client, that it had no responsibility to investigate the status of the driver's driver's license beyond "facial validity," contending that one's driving record or background should not influence its decision to rent one a car, and that a declined credit card is irrelevant to a negligent entrustment claim under section 322.38 as a matter of law. (We presented evidence that poor credit is an indicia of risk recognized by rental agencies and insurance companies.) The trial court agreed with Enterprise, granting summary judgment in its favor.

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November 30, 2013

Random Thoughts From A Civil Jury Trial (Or What Every U.S. Citizen Should Experience)

valentin crash.JPGFor two weeks in November of 2013, I had the privilege of participating in a uniquely American experience. I participated in a civil jury trial in Orlando, Florida (in the Orange County Courthouse, the same courthouse in which Casey Anthony was on trial for first degree murder in the death of her daughter). I was joined in this priceless experience by my brother-in-law, Sean Domnick, the managing partner of Domnick & Shevin, PL, and Jennifer Lipinski, one of his law partners.

On March 23, 2013, a Mears Transportation Services driver stopped her motor coach in the right lane of Epcot Center Drive, approximately 1000 feet from the Epcot Theme Park vehicle entrance, to inspect the outside of the coach for the source of a "new" noise she claimed to be hearing. After activating the coach's four-way flashers, the driver, who had no mechanical training, exited the vehicle to perform the inspection. While her testimony was that the noise might mean a wheel base fire, she did not take the vehicle's fire extinguisher with her on the inspection. After slowly circling the motor coach, the driver then walked down to the tree line alongside the roadway to make a personal phone call. (An independent eyewitness saw her on the telephone down by the tree line.) Ten seconds into this personal call -- confirmed by cell phone records -- our client, a Walt Disney World bus driver, crashed his Disney bus into the back of the Mears motor coach at approximately 30 mph.

The accident happened at 2:00 pm on a clear and sunny day. Our client testified that he first observed the Mears motor coach from about 1000 feet off, when approaching from behind on Epcot Center Drive, but did not perceive that it was stopped. When he finally perceived that the coach was stopped, it was too late for him to avoid the crash.

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August 4, 2013

Republicans Blatantly Use Tax Dollars for Personal Gain

greed.jpgFor those around the country who don't know, Florida has just lost it's 3rd or 4th commissioner of education in less than 3 years under Governor Rick Scott. The latest to resign held the same position in Indiana and was recruited by Scott for his right-wing bona fides, in particular, believing in the notion that taxpayer dollars should be paid to private entrepreneurs to build and run Charter Schools. Not surprisingly, the guru of the concept is none other than Jeb Bush. To the Jeb Bushes of the world, conservatism is just another word for funneling taxpayer money to private individuals. Florida now has private prisons. It's a huge industry ... but it needs bodies to make money. Not only will these folks be resisting efforts to decriminalize marijuana, they'll be pushing for stiffer prison sentences for other offenses. Bodies = $$$$$$.

Read the article reproduced below, written by Fred Grimm, South Florida's top watchdog reporter, to get a flavor for the scam.


Fred Grimm: Tony and Tina Bennett's school for conflicts

By Fred Grimm
fgrimm@MiamiHerald.com

Tony Bennett slunk away from his job as Florida commissioner of education, leaving us with an ever-deepening distrust of a school-reform movement dominated by for-profit education conglomerates and big-money political donors.

He left after just seven months on the job, muttering that he had been undone by "malicious and unfounded" news stories coming out of Indiana.

He wasn't. He was undone by a grade-fixing scandal of his own making back when he was Indiana superintendent of education (until unhappy voters tossed him out of office in November). He lost his job in Florida because, in his previous incarnation, he manipulated the statewide grading formula to fabricate an A rating for a K-10 charter school in which two-thirds of the high school classes flunked algebra, while 30 percent failed English.

"It is absurd that anyone would believe that I would change the grade of a school based on a political donor or based on trying to hide a school from accountability," Bennett told reporters. But Bennett and his staffers left an email record last September indicating he did just that.

The education chief hanged himself with his own words and those of his staffers, who spent nine frantic days finagling the state grading formula, searching for a fix for that unacceptable C scored by Christel House Academy. Looking, as one of his staffers put it so succinctly, for that magic "loophole." For obvious reasons. The charter school was the namesake of founder Christel DeHaan, who also happened to have donated $2.8 million to the Indiana Republican Party and, more importantly, $130,000 to the superintendent's own political campaigns.

Bennett, an apostle of Jeb Bush's corporate-financed school reform movement and rigid common-core testing standards, had gone around the state citing Christel House as an example of the superiority of charter schools over funky, conventional public schools. Unhappily, as Bennett's chief accountability officer (something of a misnomer) noted, Christel's 10th-graders had registered "terrible" scores on their statewide algebra test. Only 33 percent passed. He reacted like a high school football coach whose star player had flunked math. Something had to be done.

Ultimately, Bennett and his staffers simply erased the lowly ninth- and 10th-grade results altogether and reconfigured the results for Christel DeHaan's school using only elementary and middle school scores. It worked swimmingly -- until last week, when The Associated Press unearthed those self-incriminating emails. (Nor did it help that the Indianapolis Star reported that in 2011 the superintendent of Indianapolis' public schools had begged Bennett to grant a similar waiver for a couple of inner-city public schools. No dice. Bennett had ignored the super's pleas and dished out failing grades to the two no-account schools.)

By Thursday, Bennett was gone. Ousted in Florida because of his shenanigans in Indiana. The grade-fixing scandal had stripped him of the moral clout necessary to force yet another high-stakes testing regime onto Florida public schools and to peddle the notion that charter schools are the big fix for Florida's education woes.

But Florida citizens had another reason to doubt Bennett's objectivity when it comes to charter schools. The Indianapolis Star reported last week that his wife, Tina Bennett, was hired in June by Fort Lauderdale-based Charter Schools USA. It was another of those sweet, moneyed coincidences in Bennett public service. In 2011, he had awarded this very same company nice fat contracts to take over two failing high schools and a middle school in Indianapolis. (One of those schools, T.C. Howe High School, happened to be one of those two schools that had requested but were refused the same kind of waiver granted Christel House last September. Such a small world.) And Charter Schools USA has become one of the big players in the Florida rush to charters.

Continue reading "Republicans Blatantly Use Tax Dollars for Personal Gain" »

April 19, 2013

Rotator Cuff Tears a Common and Debiltating Injury for Florida Workers

In our experience of representing individuals with practically every type of injury, we have learned that few injuries are more common -- second to back pain -- painful, and debilitating than rotator cuff tears.

The rotator cuff is made up of 4 tendons that cover the top of the humerus. A rotator cuff injury involves a tear to one or more of these tendons. Tears can be full or partial thickness.

Tears can be acute, when a sudden force (blunt or overstrain) is applied to the shoulder, or chronic, which is deterioration over a long period of time. Common symptoms of acute tears include a tearing sensation, sudden pain, and sudden weakness. The symptoms of chronic tearing include gradual progression of shoulder pain and weakness, and difficulty sleeping on the affected side.

Rotator cuff tears are diagnosed clinically, by the orthopedist through examination, and by MRI. The best type of MRI to accurately diagnose the presence of a rotator cuff tear is the MRI arthrogram.

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March 6, 2013

Medical Providers Not Required To Bill Medicare and Medicaid in Personal Injury Cases

hospital.jpgIn every serious personal injury case in Florida, the issue of who will pay the medical providers and how much always arises. Needless to say, providers want to recover as much as they can. Patients, of course, want to pay as little as possible out-of-pocket. How this plays out often depends on who pays the bills.

The different pay sources include health insurance, PIP (motor vehicle insurance), workers' compensation, the patient (self-pay), the tortfeasor (out-of-pocket), bodily injury liability coverage, UM/UIM (motor vehicle insurance), Medicare and Medicaid.

Various laws dictate who pays what and when. In some instances, the only available sources are Medicare or Medicaid (M/M) and bodily injury liability and/or UM/UIM. Since M/M provide some of the lowest reimbursement rates and providers accepting M/M payments are not allowed to balance bill their patients, in terms of raw numbers it is often to the victim's advantage for M/M to pay the providers. While victims will ultimately have to reimburse M/M from their recovery in the personal injury case, the amount of the reimbursement is almost always less than what must be paid to the provider directly from the third party recovery (1st party if from UM/UIM).

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January 16, 2013

Satisfying Medicare's Lien from Recoveries in Florida Personal Injury Cases

maze2.jpgOur previous blog addressed the procedure for satisfying Medicaid's lien from money received in Florida personal injury cases from liable third parties.The present blog will focus on satisfying Medicare's lien from third party proceeds. The leading case on the issue is Hadden v. United States, 661 F.3d 298 (6th Cir. 2011).

Medicare and Medicaid are federal programs that provide medical insurance to various classes of individuals. Medicare is for qualified elderly and disabled persons, see 42 U.S.C., §§1395 et.seq., Medicaid is for individuals who cannot afford to pay their own medical costs. See 42 U.S.C. §§1396 et seq. Both programs aim to make themselves only secondary payers as to medical expenses for which some other entity (e.g., a tortfeasor) bears responsibility. Medicare -- 42 U.S.C. § 1395y(b)(2), Medicaid -- 42 U.S.C. §§ 1396a(a)(25)(A), (B), (H). Hence, the need for personal injury lawyers to know each programs' lien laws.

In Hadden, Medicare paid more than $80,000 for medical care on behalf of Hadden for injuries he sustained in an accident. Hadden subsequently settled a personal injury claim with a tortfeasor for $125,000. After subtracting a portion of the attorneys' fees that Hadden himself had paid to obtain the settlement, see 42 C.F.R. § 411.37, Medicare determined that Hadden owed it $62,338.07. Hadden argued that the case settled for 10% of its actual value, therefore, Medicare's recovery should be limited to a proportional 10% of its outlay, or slightly more than $8,000. The 6th Circuit disagreed.

42 U.S.C. §1395y(b)(2)(B)(ii) provides:

A primary plan, and an entity that receives payment from a primary plan, shall reimburse the appropriate Trust Fund for any payment made by the Secretary under this subchapter with respect to an item or service if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service. A primary plan's responsibility for such payment may be demonstrated by a judgment, a payment conditioned upon the recipient's compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan or the primary plan's insured, or by other means.

The Court interpreted the word "responsibility" to mean the amount the recipient claimed was due from the tortfeasor, rather than a compromised amount he or she receives from the tortfeasor. In other words, the beneficiary's obligation to reimburse Medicare is "defined by the scope of his own claim against the third party." In the Court's view, "a beneficiary cannot tell a third party that it is responsible for all of his medical expenses, on the one hand, and later tell Medicare that the same party was responsible for only 10% of them, on the other."

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January 11, 2013

Reimbursing Florida Medicaid (AHCA) From Third Party Personal Injury Proceeds

us supreme court.jpgNot infrequently, Medicaid will step up and cover the medical expenses of persons severely injured in accidents before other sources do so. This is commendable. However, where the Medicaid recipient is subsequently compensated by a third party for damages sustained in the accident, Florida Statute 409.910 says that Medicaid must be reimbursed from the proceeds.

How the statutory formula is applied has been the subject of appeals both in Florida and in other states (other states have similar statutory provisions). The many opinions have created some confusion. This blog attempts to clarify the law in Florida.

First, a basic understanding of the Medicaid system is in order. A good explanation comes by way of EMA ex rel. Plyler v. Cansler, 674 F. 3d 290 - Court of Appeals, 4th Circuit 2012.

The Medicaid program, launched in 1965 with the enactment of Title XIX of the Social Security Act, as added, 79 Stat. 343, 42 U.S.C. §§ 1396-1396v, is a cooperative program by which the federal government pays a percentage of the costs a state incurs for medical care for individuals who cannot afford to pay their own medical costs. [Arkansas Dept. of Health and Human Servs.] v. Ahlborn, 547 U.S. at 275, 126 S.Ct. 1752. Although states are not required to provide Medicaid assistance, all 50 states currently do. Id. In exchange for receiving federal financial support for state-run Medicaid programs, states must comply with federal Medicaid laws, including statutory third-party liability requirements, 42 U.S.C. §§ 1396a(a)(25)(A), (B), (H); 1396k, and anti-lien provisions, id. §§ 1396a(a)(18), 1396p.

States providing Medicaid assistance must comply with several provisions concerning third-party liability. For instance, states are required to "take all reasonable measures to ascertain the legal liability of third parties ... to pay for care and services available under the [State's Medicaid] plan." 42 U.S.C. § 1396a(a)(25)(A). In addition to this identification requirement, the state agency administering the Medicaid program ... must seek reimbursement for medical assistance to the extent of such legal liability. Id. § 1396a(a)(25)(B). In order to secure its reimbursement from liable third parties, the state must,

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November 12, 2012

Florida Defamation Law: Qualified or Conditional Privilege

pinoccio.jpgThe elements of defamation are that the Defendant published a false statement, that the statement was communicated to a third party, and that the Plaintiff suffered damages as a result of the publication. Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978).

In some instances, a qualified privilege exists in the communication. For the communication to be privileged, it "must be made by a person having a duty or interest in the subject matter, to another having a corresponding duty or interest." Axelrod at 1051. The nature of the duty or interest may be public, personal or private, either legal, judicial, political, moral, or social. It need not be one having the force of a legal obligation; it may be one of imperfect obligation. The interest may arise out of the relationship or status of the parties. Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942). It is called a qualified or conditional privilege, because the libelous statement must be made in good faith, that is, with a good motive, and not for the purpose of harming the subject of the defamation. Drennen v. Washington Electric Corp., 328 So.2d 52, 55 (Fla. 1st DCA 1976).

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November 8, 2012

Prosecuting Employment Pregnancy Discrimination Cases in Florida

pregnant.jpgFederal law, Title VII of the Civil Rights Act of 1964 (Title VII) -- see 42 U.S.C. Section 2000e et seq.; 42 U.S.C. Section 2000e-2 -- expressly forbids sex discrimination on the basis of pregnancy. Florida's discrimination statute, the Florida Civil Rights Act of 1992, does not. See Fla. Stat. Section 760.10.

While Florida's statute does not expressly prohibit discrimination on the basis of pregnancy, one Florida appellate court, the Fourth District Court of Appeals has decided that a cause of action does exist under Section 760.10 for discrimination in employment based on pregnancy. See Carsillo v. City of Lake Worth, 995 So.2d 1118 (Fla. 4th DCA 2008).

Florida has five District Courts of Appeals. While the Fourth has decided that a cause of action does exist under 760.10, the First, in O'Loughlin v. Pinchback, 579 So.2d 788 (Fla. 1st DCA 1991), and the Third, in Delva v The Continental Group, Inc., So.3d , 37 FLW D1745 (Fla. 3rd DCA 7-25-2012), have decided that no such right exists under the statute. Neither the Second and the Fifth, nor the Florida Supreme Court have taken a position on the issue.

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April 22, 2012

Federal Courts Jurisdiction and Venue Clarification Act of 2011

us supreme court.jpgThere are numerous procedural, substantive, and even attitudinal differences in the way civil cases are handled between State and Federal Courts. The differences can determine the outcome of a case.

In many instances, the line is sharp over which court system has jurisdiction, leaving little to no choice over which system will get the case. In others, however, legal maneuvering can dictate where a case will land. It is important, therefore, for lawyers to fully understand the factors that determine the outcome.

Given the significance of the outcome, parties to legal proceedings have always tussled over the jurisdiction issue, spawning a plethora of statutes and case law. Ironically, the many statutes and opinions on the subject have to a degree created more confusion than clarity.

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April 10, 2012

Florida DUI Crash Victims Exempt from PIP & Health Insurance Deductible and Co-Pay

drunk.jpgPIP (Personal Injury Protection) and health insurance will cover most motor vehicle-related medical expenses. However, these insurance policies are subject to deductibles and copays, leaving insureds with out-of-pocket medical expenses even under the best circumstances. An exception applies when the insured is a victim of a DUI crash.

The exception is contained in Florida Statute Section 624.128:

Crime victims exemption.--Any other provision of the Florida Statutes to the contrary notwithstanding, the deductible or copayment provision of any insurance policy shall not be applicable to a person determined eligible pursuant to the Florida Crimes Compensation Act, excluding s. 960.28.

The DUI crash victim must apply for crime compensation with and be found eligible by the Office of the Attorney General, Division of Victim Services. (Here is a link to the Victim Compensation Claim Form.) A victim found eligible will be notified by the Office of the Attorney General. The victim should then present the notice of eligibility to the appropriate insurance companies to obtain the waiver.

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April 5, 2012

The Cost of Florida Medical Records

calculator.jpgObviously, medical records are important for many reasons. They do not come without a price.

Florida Statute Section 456.057 is titled "Ownership and Control of Patient Records; Report or Copies of Records to be Furnished," and it defines the owner of medical records as the health care practitioner who generates a medical record after essentially performing an examination of a patient. The owners sell copies of their records to those who request them.

The cost of copies is controlled by 456.057 and Rule 64B8-10.003 of the Florida Administrative Code. A plain reading of Rule 64B8-10.003 makes it clear that the cost of medical records is determined by the status of the person making the request.

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March 29, 2012

US Chamber of Commerce Targets Florida Supreme Court Justices

dollars.jpgThe Huns are at it again.

Not satisfied with controlling the Governor's Office (Tea Party darling Rick Scott) and the Florida Legislature (both chambers have large Republican majorities), the US Chamber of Commerce and its right-wing allies are mounting a campaign to unseat three moderate Florida Supreme Court Justices. If the Justices are unseated and Rick Scott chooses their replacements, any hope that the poor, the injured, the forgotten, the voiceless, the defenseless and the damned have of receiving a fair shake will be vanquished. The three seats of our state government - Executive, Legislative, and the Courts - will be in the hands of the Huns. Shudder the thought!

Every six years, Florida's Supreme Court Justices are subject to a "yes" or "no" merit retention vote by the general electorate. No Supreme Court Justice has ever been voted out of office. However, no Justice has faced what Justices R. Fred Lewis, Barbara J. Pariente, and Peggy A. Quince will be facing in the coming months in the lead up to their merit retention votes in November, 2012.

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February 15, 2012

Preventing Speaking Objections During Depositions - Florida Law

A deposition is the gathering of sworn verbal testimony under oath. Except for communications that are protected by attorney/client privilege and the 5th amendment right against self-incrimination, witnesses are required to answer deposition questions. If a lawyer feels that a question is confusing, misstates testimony, lacks foundation, or assumes facts not in evidence, it is proper for an objection to be lodged before the question is answered. In most instances, the objection should simply be, "I object to the form of the question." This alerts the deposing lawyer that there may be a problem with the question. However, unless the lawyer invites the objecting attorney to explain or clarify the objection, nothing more should be said. Unfortunately, some lawyers abuse the right to object by not only explaining and clarifying without been asked to do so, they also suggest the response the witness should make. This obstructs the fact gathering process and is prohibited by various authorities.

It is difficult to keep disagreeable attorneys from staying in bounds during depositions. One solution is to warn the attorney and if the abuse continues, try to get the presiding judge on the telephone to issue a ruling on the spot. Sanctions can be sought after the deposition, but the cat is out of the bag by then.

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