Author Topic: Can I refuse to give a deposition?  (Read 6799 times)

0 Members and 1 Guest are viewing this topic.

scaredkaren

  • Valued Member
  • Posts: 158
Can I refuse to give a deposition?
« on: October 12, 2010 10:13:00 PM »
What are JAMs rules about this?

I received an email simply asking me about a date.

mrjaggers

  • Valued Member
  • Posts: 367
Re: Can I refuse to give a deposition?
« Reply #1 on: October 12, 2010 10:21:57 PM »
Although arbitration rules are different from the discovery rules contained in the Rules of Civil Procedure for your state, most arbitrations do allow for some form of limited discovery, and the arbitration acts will usually permit the arbitrator to make discovery rulings and have those be enforced, e.g. compel you to produce documents. 

If you're a party to a case, you will almost certainly be required to be deposed if the opposing side wants to take your deposition.

metalstorm

  • Valued Member
  • Posts: 1029
Re: Can I refuse to give a deposition?
« Reply #2 on: October 12, 2010 10:27:51 PM »
Im not sure how it works in arbitration but if your represented by an attorney in regular court you can show up to a deposition and exercise your 5th amendment rights.

-Metalstorm

When the people fear the government, there is tyranny. When the government fears the people, there is liberty. --Thomas Jefferson

The FEDERAL RESERVE, Stealing the American Dream since 1913

Don't rest, don't stop ,don't quit, and don't give up.Ride them hard and put them away wet!~metalstorm

Don't attack my kingdom and not expect me to hence forth and lay waste to yours~metalstorm

cgoodwin

  • Valued Member
  • Posts: 2291
Re: Can I refuse to give a deposition?
« Reply #3 on: October 12, 2010 10:31:48 PM »
I didn't think the 5th amendment applied to civil cases.  It's not "incriminating" in civil court because you are not facing a penalty for breaking the law.  Ask Bill Clinton.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

scaredkaren

  • Valued Member
  • Posts: 158
Re: Can I refuse to give a deposition?
« Reply #4 on: October 12, 2010 10:42:28 PM »
I didn't think the 5th amendment applied to civil cases.  It's not "incriminating" in civil court because you are not facing a penalty for breaking the law.  Ask Bill Clinton.

According to Wikipedia, I can use the 5th for civil or criminal cases.

I can also not remember. I'll be sure not to read up on anything about my case before.

metalstorm

  • Valued Member
  • Posts: 1029
Re: Can I refuse to give a deposition?
« Reply #5 on: October 12, 2010 10:44:24 PM »
But does that apply for PRO SE or only when represented by an attorney?

-metalstorm

When the people fear the government, there is tyranny. When the government fears the people, there is liberty. --Thomas Jefferson

The FEDERAL RESERVE, Stealing the American Dream since 1913

Don't rest, don't stop ,don't quit, and don't give up.Ride them hard and put them away wet!~metalstorm

Don't attack my kingdom and not expect me to hence forth and lay waste to yours~metalstorm

mrjaggers

  • Valued Member
  • Posts: 367
Re: Can I refuse to give a deposition?
« Reply #6 on: October 12, 2010 11:29:48 PM »
According to Wikipedia, I can use the 5th for civil or criminal cases.

This isn't accurate.  Your fifth amendment rights are against self-incrimination.  That wouldn't apply in a civil setting.  As Dwight (I think it was Dwight, could have been Michael) from The Office once said, "Wikipedia: a place where anyone in the world can write whatever they want about any subject - so you know you're getting good information."

It only applies to statements made in a civil hearing that could be potentially incriminating.  For example, if you were in a civil deposition, and opposing counsel asked if you committed forgery when you signed something, you could claim fifth amendment rights and refuse to answer even in a civil setting. 

But it doesn't apply to civil liabilities - in other words, whether you owe on a contract or not.  Does that make sense?

mrjaggers

  • Valued Member
  • Posts: 367
Re: Can I refuse to give a deposition?
« Reply #7 on: October 12, 2010 11:30:34 PM »
But does that apply for PRO SE or only when represented by an attorney?

-metalstorm

Either/both.  Representation doesn't change the application of the fifth amendment rights.

kevinmanheim

  • Valued Member
  • Posts: 9422
Re: Can I refuse to give a deposition?
« Reply #8 on: October 12, 2010 11:32:03 PM »
Yes, you can refuse to answer questions.

The downside is that the arbitrator isn't going to look at you in a favorable light if you do it.


TestFlight

  • Valued Member
  • Posts: 26
Re: Can I refuse to give a deposition?
« Reply #9 on: October 13, 2010 02:40:27 AM »
In the Georgia constitution also: Paragraph XVI. Self-incrimination . No person shall be compelled to give testimony
tending in any manner to be self-incriminating.

I'm new at all this but it seems we should not be forced to make the plaintiffs' case for them.

Edit: I will add that as far as I know you cant refuse to be deposed but you could use the 5th on some answers, but too many and they are going to object.
We are brought up to tell the truth but in court it will just get you a SJ so fast it will make your head spin in an unjust fashion.
« Last Edit: October 13, 2010 02:50:05 AM by TestFlight »

itsmeagain

  • Valued Member
  • Posts: 1488
  • No Fear
Re: Can I refuse to give a deposition?
« Reply #10 on: October 13, 2010 07:32:11 AM »
In the Georgia constitution also: Paragraph XVI. Self-incrimination . No person shall be compelled to give testimony tending in any manner to be self-incriminating.

I think what the posters are trying to tell you is that should they ask you a question such as; "Mr. Flight, is it true that you lied on your application for the purpose of defrauding the creditor?"  That you might use your 5th amendment rights because by answering truthfully, you could be subsequently charged with a crime.

For questions where the answer would NOT incriminate you, such as "Mr. Flight, is it true that you opened an account with scumbag creditor?", could not lead to a criminal charge and you would be required to answer truthfully and your 5th amendment rights would not protect you.

cgoodwin

  • Valued Member
  • Posts: 2291
Re: Can I refuse to give a deposition?
« Reply #11 on: October 13, 2010 12:39:44 PM »
In the Georgia constitution also: Paragraph XVI. Self-incrimination . No person shall be compelled to give testimony
tending in any manner to be self-incriminating.

I'm new at all this but it seems we should not be forced to make the plaintiffs' case for them.

Edit: I will add that as far as I know you cant refuse to be deposed but you could use the 5th on some answers, but too many and they are going to object.
We are brought up to tell the truth but in court it will just get you a SJ so fast it will make your head spin in an unjust fashion.

As a Pro Se, sometimes things seem simple that are not.  Discovery, which includes admissions, interigories, production of documents, and depositions, are intended to provide facts to the court for the civil case.  It does not matter in the eyes of the law who these, facts help or hurt, you do not have a blanket right to protect them.  There are some rights available to you, but you need to be clear on what they are. The 5th amendment is not one of them, unless the answer provided requires you to incriminate (confess to a crime, not a civil claim) you.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

Frostie

  • Valued Member
  • Posts: 298
Re: Can I refuse to give a deposition?
« Reply #12 on: October 13, 2010 06:14:50 PM »

I'm new at all this but it seems we should not be forced to make the plaintiffs' case for them.


So don't.

"I don't recall and I have no records indicating that transaction."

Now, whether or not the court believes you is a different question.  And to my mind that's the real crux of the issue. If you got sued and deposed within three months after your last payment the court is not likely to believe that you don't recall. But a year later? Five years later? That's much more of a judgment call. Not everyone has the memory of an elephant.

Nor am I suggesting that you lie and pretend that you don't remember when you do. My point is that a lawsuit involves not only facts but strategic decision making whose results cannot always be accurately predicted in advance. Do you have to make the plaintiff's case for them? No. But think carefully about what you say and do because some judges will not take it kindly if they think you are being "slick".

The question is not, "Can I refuse ZZZ". Of course you can refuse. You can refuse to ever answer the complaint to begin with. You can refuse anything. The question is, "Will this decision put me in a better place than I was before." And sometimes that's a gamble.
« Last Edit: October 13, 2010 06:21:04 PM by Frostie »

flacorps

  • Valued Member
  • Posts: 949
  • Author of Debt Hope in Trade Paperback
    • Learn to Solve Your Own Debt Problems
Re: Can I refuse to give a deposition?
« Reply #13 on: October 13, 2010 07:20:23 PM »
Facts that are relevant to the case are discoverable, unless they are incriminating. Things that are not discoverable are those that are irrelevant, and particularly those that are scandalous, impertinent, etc. (and those are also not admissible).

Failure or refusal to testify can be grounds for sanctions from the court. Likewise failure to testify truthfully, which can also be prosecuted as perjury.
"History has taught us that weakness is provocative. To the extent that people see an area of weakness, they will take advantage of it..." - Donald Rumsfeld

http://www.myhopeseries.com

cgoodwin

  • Valued Member
  • Posts: 2291
Re: Can I refuse to give a deposition?
« Reply #14 on: October 13, 2010 08:15:10 PM »
In discovery, some things that are very invasive are permitted if they "could lead to admissible evidence". So even if the question or request is not admissible in trial, it may still be permissible during discovery.

If you are evasive during discovery, they could file a Motion to Compel.  If the judge decides that your answers or objections are in "bad faith", your sanction could include paying the cost of the oppositions attorney to file the Motion to Compel, so be careful how defiant you are during discovery. Find a legal reason to object vs. just not answering or producing.

Getting back to the OP, assume that the rules for arbitration will be similar. You may have the option to agree on the rules of discovery in Arb.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?