Questioning Yourself? Can you notice your own client’s deposition to preserve evidence in California Trust and Will cases?

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While it may be funny to think about, you can notice your own client’s deposition if you wish to preserve his or her testimony prior to trial. This is a rarely used technique for rather obvious reasons, you do not usually want to disclose to the opposing party what your questions will be come time of trial. And while the opposing party can take your deposition, they cannot force your own attorney to ask you questions. Instead, those questions are usually kept close to the vest until trial.

But trial can be a long way off in most cases. And if you have a client who is in poor health, you may worry about the client being around to testify at trial.

Normally, you cannot use a deposition transcript of your own client at trial…unless the witness is unavailable. And one of the clearest forms of unavailability is serious illness or death (you can’t be any more unavailable to testify at trial than death).

Once the Court determines a witness is unavailable to testify, then the witness’ deposition transcript can be used at time of trial. The questions and answers must be read into the record during trial. It’s a bit boring, but it does the trick and allows the testimony to be considered by the judge or jury.