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Can We Get any Additional Depositions if We Change Lawyers? (CT)

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ritchie

Junior Member
What is the name of your state (only U.S. law)?
Connecticut


Hi,

And thanks in advance for any and all help.

My cousin is being sued in civil court for pain and suffering in regards to a domestic violence conviction.

Unfortunately he is still serving the time at Carl Robinson Correctional Institution in Enfield, CT.
The civil case is pointing to a trial while he is still incarcerated, making his defense extremely difficult to coordinate.
Additionally, and far worse, his lawyer did not carry out his wishes during both (2) depositions of the plaintiff / victim, in order to draw out the lies she has made in her accusations, to embellish her case.

I have two inquiries, with sub questions, the first of which is the most urgent.

1. re: getting to depose the plaintiff properly
As his lawyer has wasted the only two depositions he was allowed before trial, which has greatly injuring his client, my cousin.
If my cousin fires this incompetent lawyer, and hies another one, will this new lawyer be allowed to depose the plaintiff?
And if so, will it be for one deposition, or will he have the same two afforded the original lawyer?

2. re: postponement of the trial
It would be far far easier for him to build his case, and defend himself, after he is released. Not to mention the optics of the handcuffed perp being brought into court, as opposed to walking in on his own.
He will be incarcerated till August, and they are pushing for the trial in May.
What means does my cousin have to postpone the trial date till after he is released?
Would his changing lawyers help in this regard?
What other options does he have for postponement?

Thanks again!

Best,

ritchie
 
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Zigner

Senior Member, Non-Attorney
This really has nothing to do with you. Your cousin should be discussing his concerns with his attorney.
 

tranquility

Senior Member
1. http://jud.ct.gov/Publications/PracticeBook/PracticeBookCorrection043012.pdf

The court sets the number. I suppose you can ask for more. I see no reason why that would be granted. That the deposition was not as client wanted is usually more from client naivety than attorney error.

2. Why should a victim wait to be compensated for the harm caused by the defendant until the defendant finds things convenient?
 

ritchie

Junior Member
This really has nothing to do with you. Your cousin should be discussing his concerns with his attorney.
As the proposed solution here entails dismissing his current attorney to begin with, it hardly makes any sense that my cousin would consult with him about his own dismissal for incompetent representation!


Hi and thanks for the reply.

To be perfectly clear, I am not pursuing these answers of my own accord. I am acting solely on his behalf, at his specific instruction.
He asked me earlier today to inquire as to what his possibilities are to have a reasonable chance to defend himself, which at this point, due to incompetent representation, is not happening.

As the proposed solution here entails dismissing his current attorney to begin with, it hardly makes any sense that my cousin would consult with him about his own dismissal for incompetent representation!

My cousin has not been able to afford to have his current attorney travel upstate to see him as often as he would like, (it's a thousand dollars of just traveling time to begin with), and is otherwise limited to 15 minute phone consultations, with D.O.C. pre-recorded announcements, interrupting their conversations, every minute.

Even more importantly, whether he is on the phone, or with the attorney visiting him, he is not allowed to have any notes with him, or pen and paper to take any notes at all.
How is he supposed to defend himself like this?!
Hence my second question about having the trial postponed a few months till he can get out and properly make his case.


This said, I do not know whether you, or anyone else here reading this, will have any of the answers I am looking for.
I will assume you, or someone might, and so I will give more details.

My cousin is not married, nor does he have children. I am his closest living relative.
Our mothers were sisters and best friends, and like them, (God rest their souls), we too have been best friends our whole lives.

While he admittedlly made a mistake, he is serving his time, and has since made a very reasonable offer to the plaintiff.
However, she is set on going after his house which is all he has to show, for 30 years of working.
He dated the plaintiff on and off for only nine months. They broke up seven times over that nine month period. (Seven times! Who does that?!)

I personally witnessed her demanding from him, (with a straight face no less), that he give her a three carat diamond ring, and, a "tennis bracelet," after only three months of on and off dating.
He said it was something she said to him many, many times, and was obviously not detracted from doing so by my presence. (And, no, she didn't get either one.)
I told him to get rid of her right then, but in retrospect he said the sex was too good to walk away from, (idiotic), even though a lifetime committed relationship was not in the picture for him.
She wanted to marry him and he clearly did not want to marry her, and she was scorned.

If you saw the police report, including the full body photos they took of the plaintiff after the, "incident," that resulted in his conviction, you would find the jeopardy he is facing hard to believe.
I would unquestioningly bet, everything I have, that no unbiased person would think she should get his house, making him homeless as soon as he gets out from serving his time.
I have copies of these police photos in my possession. I 'm sure it's not advisable to post links to them here. But, I could easily do so and totally conceal, (photoshop), her identity. As there is nothing to see, you would be shocked to see them.


All this said, and back to my original questions, my cousin is beyond frustrated with his current attorney, who again both did not depose the plaintiff properly the first time, nor, (after a $2k consultation made after reading the first deposition's transcript), the second time around.

This attorney has told my cousin that as things stand right now, "he," cannot depose the plaintiff further. And there are many, many answers he needed to get her response to, under oath, before trial.

Hence my cousins most important question, as to whether the retaining of a new attorney, (because of incompetent representation of the previous attorney), would mean that this new attorney would thereby be granted (a) further deposition(s) to properly make a case to defend his client. If so he will definitely dismiss his current attorney.

Finally, my cousin has no access to the internet, and can only make calls to someone who has set up a collect calling account to receive calls specifically from him. So he cannot make inquiries of his own.


His second question was again, what are his options to delay the trial date three or more months, so he can at least have a better opportunity to defend himself?

If no one can answer these questions, can you at least point me to where I can get these answers!?

Thanks a lot for taking the time to read this, and respond!


Best,

ritchie
 

quincy

Senior Member
... As the proposed solution here entails dismissing his current attorney to begin with, it hardly makes any sense that my cousin would consult with him about his own dismissal for incompetent representation! ...

... Hence my second question about having the trial postponed a few months till he can get out and properly make his case.

... This attorney has told my cousin that as things stand right now, "he," cannot depose the plaintiff further. And there are many, many answers he needed to get her response to, under oath, before trial. ...
If your cousin wishes to change attorneys, he will need to inform his current attorney. The current attorney will transfer to any new attorney your cousin hires all of the documents he has amassed during his representation of your cousin (absent those considered "work product," which remain the attorney's property).

With a change of attorneys, the court can potentially extend any approaching deadlines and/or grant a continuance. This will depend on all circumstances, however, and a scheduled May trial may not be delayed as long as your cousin wishes (ie, August).

I think that tranquility's assessment of the depositions, and the way they were handled, is probably correct. Your cousin may have had unrealistic expectations.

Good luck.
 

ritchie

Junior Member
Thanks quincy very much for the response!

With a change of attorneys, the court can potentially extend any approaching deadlines and/or grant a continuance. This will depend on all circumstances, however, and a scheduled May trial may not be delayed as long as your cousin wishes (ie, August).
Any extra time will be good, even if it's not beyond August.
But, "potentially?" Would the new attorney's "request," be at the mercy of the court? Can they simply refuse?

I think that tranquility's assessment of the depositions, and the way they were handled, is probably correct.
Tranquility wrote:
I suppose you can ask for more. I see no reason why that would be granted.
I sure wish my response to Tranquility would get posted.
I tried posting my responses to Zigner and Tranquility at the same time 11:22… Hmm. Said it needed to be moderated. :)

I believe Tranquility is referring to "more" depositions, not more time, or continuance.

I see no reason why that would be granted.
Maybe now we are getting somewhere.
He doesn't see a reason… So, what would be a reason?!

Tranquility wrote:
That the deposition was not as client wanted is usually more from client naivety than attorney error.
Your cousin may have had unrealistic expectations.
All he expected was his attorney to ask the specific requested questions that his lawyer ultimately did not ask, either in the first or, second depositions. These specific questions if answered, would have basically forced her to either, perjure herself, or damage her credibility. She couldn't have had it both ways. If she tells the truth, no credibility. If she lies to protect her credibility, she perjures herself. No win for her. But if she's not on the record for these specifics, because the attorney did not specifically ask them, isn't that attorney error? Or is it nothing?!

What does it have to be to be attorney error?! How do you prove attorney error?

The current attorney will transfer to any new attorney your cousin hires all of the documents he has amassed during his representation of your cousin
If it is attorney error, does this transferred work, including depositions, have to be accepted, or can it be requisitely tossed out, and redone?

Is there a any kind of precedent such as an attorney dismissal, over attorney error, that the defendant can have, "reason," to be granted, and not by mercy, further depositions, such as because his attorney failed to ask requested, specific detailed questions?

Imprisoned, obviously, my cousin was not able to attend the deposition. Could he have been present at the deposition if he were a free man? Could he have sat beside his lawyer and whispered in his ear when he wasn't asking the specific questions needed, both at the first deposition, let alone the second?

My cousin obviously screwed up, and he should have gone into debt paying the partner instead of the son.
But, I got into more specifics on that, and the case, in the MIA Tranquility reply.
if this post shows up, and still not that one, I'll trying posting it again.

But then for all I know, this may be the missing "quincy," reply for a while! :)

Thanks again for the reply.

Best,

ritchie
 

latigo

Senior Member
What is the name of your state (only U.S. law)?
Connecticut


Hi,

And thanks in advance for any and all help.

My cousin is being sued in civil court for pain and suffering in regards to a domestic violence conviction.

Unfortunately he is still serving the time at Carl Robinson Correctional Institution in Enfield, CT.
The civil case is pointing to a trial while he is still incarcerated, making his defense extremely difficult to coordinate.
Additionally, and far worse, his lawyer did not carry out his wishes during both (2) depositions of the plaintiff / victim, in order to draw out the lies she has made in her accusations, to embellish her case.

I have two inquiries, with sub questions, the first of which is the most urgent.

1. re: getting to depose the plaintiff properly
As his lawyer has wasted the only two depositions he was allowed before trial, which has greatly injuring his client, my cousin.
If my cousin fires this incompetent lawyer, and hies another one, will this new lawyer be allowed to depose the plaintiff?
And if so, will it be for one deposition, or will he have the same two afforded the original lawyer?

2. re: postponement of the trial
It would be far far easier for him to build his case, and defend himself, after he is released. Not to mention the optics of the handcuffed perp being brought into court, as opposed to walking in on his own.
He will be incarcerated till August, and they are pushing for the trial in May.
What means does my cousin have to postpone the trial date till after he is released?
Would his changing lawyers help in this regard?
What other options does he have for postponement?

Thanks again!

Best,

ritchie
If "they are pushing for the trial in May," then cousin's counsel should be doing is pushing in another direction. Because delaying the trail setting is much easier than vacating it after it is set.

Anyway, whether new counsel is asking for a latter setting - like sometime after Labor Day - or moving to vacate a trial already scheduled, it will be entirely discretionary with the judge.

However, in either case I think your cousin could expect a favorable decision from the court. And I say that because I fail to see how any resulting prejudice to the plaintiff could possibly outweigh that incurred by the short-timer defendant.

But then I gave up try to predict judges long ago. About all you can be assured of is that they will show up wearing a black cloak and often cranky.
 

quincy

Senior Member
... Would the new attorney's "request," be at the mercy of the court? Can they simply refuse?
Yes, the court can refuse to grant a continuance. Whether there is any scheduling change granted will be at the discretion of the court. Justification for any changes must be shown and, depending on what is presented, the court may grant or deny the request. I agree with latigo that there is no way to predict in advance what a judge will or won't do.

So, what would be a reason?!
When there is a change of attorneys mid-case, more preparation time may be needed for a trial, so this is a possible reason that a court may grant a continuance. I am not sure the court would find a need for a continuance here.

... isn't that attorney error? Or is it nothing?!

What does it have to be to be attorney error?! How do you prove attorney error?
An attorney error must be shown to have affected the outcome of a case and/or been the proximate cause of client injury. If the result of the case would have been the same, attorney error or not, then your cousin would have no case against the attorney. There has been no damage.

If it is attorney error, does this transferred work, including depositions, have to be accepted, or can it be requisitely tossed out, and redone?
The new attorney can use what he needs or wants of the previous attorney's work.

Imprisoned, obviously, my cousin was not able to attend the deposition. Could he have been present at the deposition if he were a free man? Could he have sat beside his lawyer and whispered in his ear when he wasn't asking the specific questions needed, both at the first deposition, let alone the second?
Yes, a client can attend a deposition. And your cousin could have spoken with his attorney (generally off the record) during the deposition, although most attorneys prefer their clients remain quiet.
 
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justalayman

Senior Member
one problem with changing attorneys midstream and one reason a continuance may not be granted is that some clients play musical attorneys simply to delay the process.

One reason depositions are limited is that if they aren't, they could be used to not only delay the process but as a form of harassment against the deponent.

generally the rules of the court are not so inflexible that the changing of your attorney would never be the basis for a continuance but the application for the continuance must be supported such the court agrees with the reasoning. The deposition issue is similar. If additional information was discovered after the depo's had been taken that would justify an additional depo, the courts could grant such a request but they are not likely to grant another one simply because the lawyer that was hired did not ask something the defendant wanted to be asked. That is not the fault of the deponent and due to that, the deponent should not be required to fulfill requests for a deposition as it becomes a matter of excessive imposition or even harassment. Remember, your cousin chose the attorney that took the depo's. If the attorney was not trusted to be an attorney and act in a manner consistent with your cousins intent, then your cousin should not have hired him. Again, that is not the plaintiffs fault and the plaintiff should not be penalized for your cousins decision.
 

latigo

Senior Member
one problem with changing attorneys midstream and one reason a continuance may not be granted is that some clients play musical attorneys simply to delay the process.

One reason depositions are limited is that if they aren't, they could be used to not only delay the process but as a form of harassment against the deponent.

generally the rules of the court are not so inflexible that the changing of your attorney would never be the basis for a continuance but the application for the continuance must be supported such the court agrees with the reasoning. The deposition issue is similar. If additional information was discovered after the depo's had been taken that would justify an additional depo, the courts could grant such a request but they are not likely to grant another one simply because the lawyer that was hired did not ask something the defendant wanted to be asked. That is not the fault of the deponent and due to that, the deponent should not be required to fulfill requests for a deposition as it becomes a matter of excessive imposition or even harassment. Remember, your cousin chose the attorney that took the depo's. If the attorney was not trusted to be an attorney and act in a manner consistent with your cousins intent, then your cousin should not have hired him. Again, that is not the plaintiffs fault and the plaintiff should not be penalized for your cousins decision.
With all due respect I fail to see how one can characterize a litigant's decision to substitute counsel of record in such censoring tone as "changing attorney's in mid- stream" when the lawsuit hasn't even been set for trial!

Furthermore, the issue as presented here doesn't anticipate the defendant's attorney of record moving for leave to withdraw! Which would require approval of the court. If the defendant is able to engage other counsel, all that is required is the filing of a notice of substitution, sans anyone's approval.

Also if new counsel comes on board and finds that further discovery is necessary in order to properly prepare for trial, he or she has the right to request the same.

And if it should conflict with an existing pretrial order setting a time for the completion of discovery - in my experience rarely ordered prior to a trial setting - the attorney is free to request an extension of the discovery period.

Should the plaintiff believe that further discovery "penalizes" or is a form of "harassment" she can move for a protective order or an order limiting/denying discovery to prevent its abuse. All of which is discretionary with the court.
 

justalayman

Senior Member
latigo;3246197]With all due respect I fail to see how one can characterize a litigant's decision to substitute counsel of record in such censoring tone as "changing attorney's in mid- stream" when the lawsuit hasn't even been set for trial!
You misunderstood my statement. I was not suggesting the OP is guilty of attempting to delay anything. I made a statement as to one reason a court would refuse to consider a delay in scheduling the trial. That was to suggest supporting the need for a delay with something other than just: got a new attorney. Need more time.

Furthermore, the issue as presented here doesn't anticipate the defendant's attorney of record moving for leave to withdraw! Which would require approval of the court. If the defendant is able to engage other counsel, all that is required is the filing of a notice of substitution, sans anyone's approval.
did I say the attorney must ask to withdraw?


that would be a no. Not sure where that came from. He is attempting to tie changing attorneys to the need for a delay of the trial though.



Should the plaintiff believe that further discovery "penalizes" or is a form of "harassment" she can move for a protective order or an order limiting/denying discovery to prevent its abuse. All of which is discretionary with the court.
again, just a statement to one reason a court could resist a request for additional depositions. Just suggesting the OP be prepared to present a reason the additional deposition would be needed.
 

latigo

Senior Member
. . . . He is attempting to tie changing attorneys to the need for a delay of the trial though. . . .
If you are disposed to continuing with the undue assumption that defendant's sole motive for engaging substitute counsel - IN SPITE of his expressed dissatisfaction with his attorney of record and fears of ill-preparation - IN SPITE of the obvious prejudice the plaintiff seems designed to impose upon him - is to delay a trial setting until following his release from confinement in six months, then there is nothing to be gained in continuing this discussion.
 

justalayman

Senior Member
latigo;3246242]If you are disposed to continuing with the undue assumption that defendant's sole motive for engaging substitute counsel - IN SPITE of his expressed dissatisfaction with his attorney of record and fears of ill-preparation - IN SPITE of the obvious prejudice the plaintiff seems designed to impose upon him - is to delay a trial setting until following his release from confinement in six months, then there is nothing to be gained in continuing this discussion.
where are you getting this from? I NEVER said the OP (or his cousin actually) was changing attorneys in an attempt to delay the process. I said, both times, that a court can refuse to agree to delaying the process if they believe that is the only purpose of the requesting party's actions. I then went on to say that they need to have justification for the request of delaying the trial...

so the courts will have something other than a delaying tactic as a basis for the request.

the court doesn't have any idea of the defendants issue with his attorney unless he informs the court. Allowing the court to guess as to the basis of the request to delay the process without a reason known appears no different than an intent to delay the process simply to delay the process.
 

quincy

Senior Member
... Hence my cousins most important question, as to whether the retaining of a new attorney, (because of incompetent representation of the previous attorney), would mean that this new attorney would thereby be granted (a) further deposition(s) to properly make a case to defend his client. If so he will definitely dismiss his current attorney. ...

His second question was again, what are his options to delay the trial date three or more months, so he can at least have a better opportunity to defend himself? ...
I am obviously not reading justalayman's posts the way you are, latigo, as I cannot understand any of your objections to what he wrote.

The quoted portion above says that ritchie's cousin is looking for ways to both get another deposition and get the trial delayed until he is released from prison. And ritchie has asked if hiring a new attorney would at least accomplish one of those goals - "if so he will definitely dismiss his current attorney."

The hiring of a new attorney alone will not, however, guarantee that either another deposition will be granted or that any trial will be delayed until the cousin's August release. This is left to the discretion of the judge, who will make his decision by weighing what the cousin presents as justification for his requests against what the plaintiff presents in the way of opposition (if there is any opposition).
 
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tranquility

Senior Member
I don't see the judge bending over backwards to accommodate a person in jail for the domestic violence he is now being sued upon for pain and suffering. We know he will lose the case because of claim or issue preclusion, the only question is the damages.
 

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