BOSTON – April 5, 2011 – At some time in their career, many real estate agents can expect a seemingly innocent phone call requesting them to appear at a deposition. But that call “is not always the simple matter it might seem at first glance,” says LeClairRyan real estate attorney Jay S. Gregory on BrokerAgentSocial.com.
“Even if the (deposition) appears not to directly affect you and/or your firm, your radar should go up right away,” says Gregory. “And if you are ever subpoenaed for a deposition, it is important that you arrive well prepared and with legal representation of your own. Failure to do so can have far-reaching effects on both you and your firm.”
Gregory gives an example: An alleged predatory lending case involved multiple law firms, eight separate plaintiffs and a shady “no-money-down” straw buyer scheme. LeClairRyan represented a real estate franchise that had a former agent involved in the scheme. On the verbal promise that he was not a target and would not be deposed, the agent met privately with plaintiff attorneys and ill-advisedly provided them with information and documentation that led to suits against more than a dozen parties, including his former agency. And despite the earlier promise to the contrary, the agent was then compelled to appear for two days of deposition.
“The first mistake this agent made was believing that the plaintiff’s lawyer was his friend,” Gregory says. Showing up for the deposition without legal representation of his own only compounded the problem, and the plaintiffs’ lawyer confused the agent and extracted uninformed and inconsistent testimony that provided ammunition against his former agency. “If that agent had been properly prepared and represented by counsel, the plaintiffs would not have had any case against the agency,” Gregory says.
Gregory made the following points in his article to help real estate agents understand the deposition process:
• A deposition is not a “normal” conversation, an assumption often erroneously made by agents being deposed for the first time. This “ritualized interrogation” is a way for the interrogating attorney to elicit testimony that, taken in or out of context, may bolster his or her client’s position. “A deposition offers the deponent little upside, but it often presents significant downside risk,” Gregory writes.
• Gregory recommends that agents being deposed meet with their counsel before the deposition to discuss facts and claims, and to review their files. However, the deposition “is not an exam, and there is no need to memorize your file; it is sufficient to refresh your memory by reviewing it.”
• Understand the difference between expert and fact testimony. A fact witness can testify about what he or she saw, felt, heard, sensed, etc., but cannot provide opinions. An expert witness, on the other hand, can offer his or her opinions.
• Understand the attorney’s question and answer only that question. Provide short, succinct and honest answers. Never guess, assume or speculate.
“Depositions are important events in the life of a lawsuit,” Gregory says. “While your deposition will not usually ‘win’ the case for you, it can, at worst, convince the opposing counsel to bring you and/or your agency into the case; or, if you are already a party, greatly complicate your position in the case. It cannot be overstated how important it is always to have a lawyer representing you at the deposition.”
Gregory offers more tips in his article, “Depositions can be pitfalls for unprepared real estate agents.”
© 2011 Florida Realtors®
“Even if the (deposition) appears not to directly affect you and/or your firm, your radar should go up right away,” says Gregory. “And if you are ever subpoenaed for a deposition, it is important that you arrive well prepared and with legal representation of your own. Failure to do so can have far-reaching effects on both you and your firm.”
Gregory gives an example: An alleged predatory lending case involved multiple law firms, eight separate plaintiffs and a shady “no-money-down” straw buyer scheme. LeClairRyan represented a real estate franchise that had a former agent involved in the scheme. On the verbal promise that he was not a target and would not be deposed, the agent met privately with plaintiff attorneys and ill-advisedly provided them with information and documentation that led to suits against more than a dozen parties, including his former agency. And despite the earlier promise to the contrary, the agent was then compelled to appear for two days of deposition.
“The first mistake this agent made was believing that the plaintiff’s lawyer was his friend,” Gregory says. Showing up for the deposition without legal representation of his own only compounded the problem, and the plaintiffs’ lawyer confused the agent and extracted uninformed and inconsistent testimony that provided ammunition against his former agency. “If that agent had been properly prepared and represented by counsel, the plaintiffs would not have had any case against the agency,” Gregory says.
Gregory made the following points in his article to help real estate agents understand the deposition process:
• A deposition is not a “normal” conversation, an assumption often erroneously made by agents being deposed for the first time. This “ritualized interrogation” is a way for the interrogating attorney to elicit testimony that, taken in or out of context, may bolster his or her client’s position. “A deposition offers the deponent little upside, but it often presents significant downside risk,” Gregory writes.
• Gregory recommends that agents being deposed meet with their counsel before the deposition to discuss facts and claims, and to review their files. However, the deposition “is not an exam, and there is no need to memorize your file; it is sufficient to refresh your memory by reviewing it.”
• Understand the difference between expert and fact testimony. A fact witness can testify about what he or she saw, felt, heard, sensed, etc., but cannot provide opinions. An expert witness, on the other hand, can offer his or her opinions.
• Understand the attorney’s question and answer only that question. Provide short, succinct and honest answers. Never guess, assume or speculate.
“Depositions are important events in the life of a lawsuit,” Gregory says. “While your deposition will not usually ‘win’ the case for you, it can, at worst, convince the opposing counsel to bring you and/or your agency into the case; or, if you are already a party, greatly complicate your position in the case. It cannot be overstated how important it is always to have a lawyer representing you at the deposition.”
Gregory offers more tips in his article, “Depositions can be pitfalls for unprepared real estate agents.”
© 2011 Florida Realtors®
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