Supoenaed for a deposition -- help!

[ruatango]

What is the name of your state? California

Let's say that a friend of mine is a certified massage therapist who, at the request of a regular client, wrote and signed a letter, truthfully describing her knowledge of the extent of an injury the client received. Not having witnessed the injury, she based on her letter on her examination of her client after the injury, her prior familiarity with the client's body, and her expertise as a trained massage therapist (she has an acedemic degree in massage therapy). Her client has sued the (very wealthy) party allegedly responsible for his injury, and that party has subpoenaed my friend to give a deposition. My friend has done nothing illegal or unethical, but she is concerned about the legal expenses she may incur as a result of having written that letter.

Many questions:

How much representation and consultation should my friend expect to need, being prudent but of very limited means?

Is she obligated to participate in this lawsuit? In this deposition?

Can she bill her client for her legal expenses related to this deposition and for her time consulting with a lawyer?

Can she bill her client for her time at the deposition?

Is my friend an expert witness in this suit? Is that distinction relevant to anything?

Should my friend be worried that the defendant might attempt to or threaten to put her in legal jeopardy by scrutinizing her practice and records, thus incuring more legal expenses?

Thanks.

[BelizeBreeze]

Originally Posted by ruatango

What is the name of your state? California

Let's say that a friend of mine is a certified massage therapist who, at the request of a regular client, wrote and signed a letter, truthfully describing her knowledge of the extent of an injury the client received. Not having witnessed the injury, she based on her letter on her examination of her client after the injury, her prior familiarity with the client's body, and her expertise as a trained massage therapist (she has an acedemic degree in massage therapy). Her client has sued the (very wealthy) party allegedly responsible for his injury, and that party has subpoenaed my friend to give a deposition. My friend has done nothing illegal or unethical, but she is concerned about the legal expenses she may incur as a result of having written that letter.

Many questions:

How much representation and consultation should my friend expect to need, being prudent but of very limited means?

Is she obligated to participate in this lawsuit? In this deposition?

Can she bill her client for her legal expenses related to this deposition and for her time consulting with a lawyer?

Can she bill her client for her time at the deposition?

Is my friend an expert witness in this suit? Is that distinction relevant to anything?

Should my friend be worried that the defendant might attempt to or threaten to put her in legal jeopardy by scrutinizing her practice and records, thus incuring more legal expenses?

Thanks.

I'm not going to humor this crap except to tell you that your friend is lucky she does not get sued for practicing medicine without a license AND if she bills for 'legal services' being hauled before the court for practicing law without a license.

You have an idiot for a friend.

[ruatango]

Are you a troll or serious? My friend never represented herself as a doctor or made a medical diagnosis. As a trained professional she understands the limits of her certification and would never venture a medical opinion. It doesn't take a doctor to describe the extent of an injury, especially if one is well trained in anatomy and legally certified to treat injuries.

And what on earth do you mean practicing law without a license? Who said anything about practicing law? I asked if she could get reimbursed by her client for HER legal expenses as a result of HIS lawsuit.

[BelizeBreeze]

Originally Posted by ruatango

Are you a troll or serious? My friend never represented herself as a doctor or made a medical diagnosis. As a trained professional she understands the limits of her certification and would never venture a medical opinion. It doesn't take a doctor to describe the extent of an injury, especially if one is well trained in anatomy and legally certified to treat injuries.

And what on earth do you mean practicing law without a license? Who said anything about practicing law? I asked if she could get reimbursed by her client for HER legal expenses as a result of HIS lawsuit.

Your "FRIEND" would find out real quick who I was if I was handling the deposition. And your "FRIEND" would also have a few more things to worry about. Including an invitation from the California Bar association and the AMA.

[ruatango]

OK, troll. Real posters explain themselves.

[BelizeBreeze]

Originally Posted by ruatango

OK, troll. Real posters explain themselves.

You are FUNNY

[tranquility]

An "expert" is determined by the facts in each case. An "expert" can give an opinion. I disagree completely with BB on his focus on the AMA and whatnot and think he needs to review the criteria and effect of qualifying someone as an expert. That does not mean I think the OPs friend would qualify or that he would be persuasive in the least if he did qualify, it only means that there is no risk to trying. (Heck, I've testified as an expert on fingerprint evidence and FSTs and I was just a cop.)

As to the questions:

How much representation and consultation should my friend expect to need, being prudent but of very limited means?

There is always risk to holding one's self out to be an expert. Malpractice is one of them. How much does your friend think she needs?

Is she obligated to participate in this lawsuit? In this deposition?

Probably not. Unless an afidavit or expert report has been submitted to the court (or the expert intends to testify in court), an expert could probably walk away without penalty to the opponent. However a contractual relationship with the person who hired the expert may be in breach and that would have to be dealt with.
Info edit:
If a person has already been subpoenaed, a depostion is required. This question depends on all the specific facts.

Can she bill her client for her legal expenses related to this deposition and for her time consulting with a lawyer?

Only if it were in the contract. If not, legal expenses are her own.

Can she bill her client for her time at the deposition?

An expert usually bills the person who calls her to the deposition. (The contract with the "client" often has them as the back-up payer of fees if there is a problem.)

Is my friend an expert witness in this suit? Is that distinction relevant to anything?

That is the goal of the "client". I think it is unlikey a massage therapist will qualify as an expert in this situation. It is relevant as an expert is the only one who can give opinion evidence.

Should my friend be worried that the defendant might attempt to or threaten to put her in legal jeopardy by scrutinizing her practice and records, thus incuring more legal expenses?

Oh yes! That is one of the most fun things to do in a lawsuit. To trash the opponent's experts.

[BelizeBreeze]

You may disagree with me all you want, but this 'expert' would never see a courtroom.

[stephenk]

let me venture an educated guess.

The massage therapist is probably being deposed because the letter she wrote along with any billing was sent to the defendant's attorney as part of the plaintiff's damages. The defense counsel is taking the deposition of the therapist to determine credibility and the basis for the letter's opinions.

The therapist cannot be designated as an expert without the knowledge of the therapist. The therapist would have been contacted by the plaintiff's attorney seeking her CV and fee schedule at a minimum and also to discuss her opinions and agreement to be an expert.

Most likely she will deposed as a percipient witness only. No opinions will be asked. She will be required to produce her treatment notes and billing records. She will be paid witness fees of $35 plus mileage to and from the deposition location.

If your friend is asked opinions she should make sure she is guaranteed her hourly rate before providing any opinion in the deposition.

[tranquility]

You may disagree with me all you want, but this 'expert' would never see a courtroom.

Almost assuredly not. Then again, they aren't going to be talking to anyone from the Bar or from the AMA either.

[ruatango]

Originally Posted by stephenk

let me venture an educated guess.

The massage therapist is probably being deposed because the letter she wrote along with any billing was sent to the defendant's attorney as part of the plaintiff's damages. The defense counsel is taking the deposition of the therapist to determine credibility and the basis for the letter's opinions.

Yes, I think that is probably the case.

The therapist cannot be designated as an expert without the knowledge of the therapist. The therapist would have been contacted by the plaintiff's attorney seeking her CV and fee schedule at a minimum and also to discuss her opinions and agreement to be an expert.

OK. I don't think this has happened. I was just wondering if the fact that she used her professional training to provide what apparently will be evidence in a lawsuit meant she was an "expert witness" or if the term means something else. Apparently it means something else.

Most likely she will deposed as a percipient witness only. No opinions will be asked. She will be required to produce her treatment notes and billing records. She will be paid witness fees of $35 plus mileage to and from the deposition location.

OK, that doesn't sound so bad. I assume that the party that sent the subpoena is the one that will pay her?

If your friend is asked opinions she should make sure she is guaranteed her hourly rate before providing any opinion in the deposition.

OK, I'll tell her she should probably talk to her client's lawyer about that, but it sounds like it won't be necessary.

Thanks to you and tranquility. I try to keep up with legal issues and am vaguely familiar with the terminology, but I've never seen an actual case (except from a jury box), so it's interesting to me to see how things are working. My friend isn't totally sure what's going on (and certainly never claimed to be an expert for hire), so it's good to be able to reassure her it's no big deal.

Not to belabor the point, but assuming that my friend doesn't end up as an expert witness, just a percipient witness, can she expect to be "prepped" or at least given advice by her client's lawyer before the deposition? Or have I just been watching too much TV? Is there any reason for her to spend money on her own lawyer?

Thanks again.

[stephenk]

"Not to belabor the point, but assuming that my friend doesn't end up as an expert witness, just a percipient witness, can she expect to be "prepped" or at least given advice by her client's lawyer before the deposition? Or have I just been watching too much TV? Is there any reason for her to spend money on her own lawyer?"

1. No prepping by her client's attorney. The reason being is that the attorney who is taking her deposition will most likely ask if she has talked to the other attorney and if so, testify to everything that was said by the attorney and by her to the attorney.

2. No need for her to get an attorney unless there is something unethical or illegal about her billing and records.

[ecmst12]

Your friend could certainly call her client's attorney and ask what the deposition is to be about, right?

[ruatango]

Originally Posted by stephenk

"Not to belabor the point, but assuming that my friend doesn't end up as an expert witness, just a percipient witness, can she expect to be "prepped" or at least given advice by her client's lawyer before the deposition? Or have I just been watching too much TV? Is there any reason for her to spend money on her own lawyer?"

1. No prepping by her client's attorney. The reason being is that the attorney who is taking her deposition will most likely ask if she has talked to the other attorney and if so, testify to everything that was said by the attorney and by her to the attorney.

2. No need for her to get an attorney unless there is something unethical or illegal about her billing and records.

OK, sounds easy. Thanks again!