New CA Supreme Court Evidence case
- Would You Like to Quickly Develop Your Dream Civil Law Practice?
Evidence
A question that can arise during trial is whether a party can use a discovery deposition, taken in an earlier action, under the hearsay exception in Evidence Code section 1291(a)(2). Last month, the California Supreme Court published a new decision addressing this issue. In the video above I briefly discuss this new case. Below is my summary of the case.
New Evidence Decision
Berroteran v. Superior Court (2022) _ Cal.5th _ , 2022 WL 664719: The California Supreme Court reversed the Court Appeal's decision concluding that discovery deposition testimony in an earlier action was admissible under the hearsay exception in Evidence Code, section 1291(a)(2). Although the parties had settled the case, the California Supreme Court exercised its discretion to proceed to decide the matter. Finding the Court of Appeal's reasoning to be unpersuasive, the California Supreme Court concluded that section 1291(a)(2) creates a general rule against admission of testimony from a prior civil discovery deposition. When ruling on the admissibility of such prior testimony, the trial court should take the following approach. It should determine whether the parties intended, at the outset, that the deposition would serve as trial testimony. It should determine whether the parties subsequently reached agreement concerning use of the deposition at trial in that case, or in other cases. Other key practical considerations are the timing of the deposition within the context of the litigation and special circumstances creating an incentive for cross-examination; the relationship of the deponent and the opposing party, the anticipated availability of the deponent at trial in the proceeding in which the deposition was taken, and the statutory context; conduct at, and surrounding, the deposition — and the degree of any examination conducted by the opposing party; the particular designated testimony; and the similarity of position. (March 7, 2022.)
Lawyer Master Mentoring™ Services
Lawyers (whether new or experienced) can rapidly create their dream law practices with the help of a master mentor who can help them think deeply, focus on what is essential, avoid distractions, develop their skills, avoid mistakes, answer their questions, and continuously improve their organization and systems. I offer an online video course and individual sessions to provide this much needed master mentoring to attorneys. For my lawyer master mentoring services visit my website at https://montymcintyre-law.com, email me at [email protected], or call me at (619) 990-4312.
I take a limited number of civil cases and represent plaintiffs or defendants in business, insurance bad faith, personal injury, real property and wrongful death actions. I use my experience as a California civil trial lawyer since 1980 and a member of the American Board of Trial Advocates since 1995, and I work hard to attempt to get each client the best possible result. My clients get the benefit of big firm experience with small firm attention and reasonable rates. For my civil litigation services visit my website at https://montymcintyre-law.com, email me at [email protected], or call me at (619) 990-4312.
Mediation, Arbitration and Referee Services
I also help attorneys and their clients by serving as a mediator, arbitrator and referee with ADR Services, Inc. I handle cases in the areas of business, commercial, employment, insurance bad faith, insurance coverage, land use, landlord-tenant (commercial and residential), legal malpractice, medical malpractice, personal injury, real property and wrongful death. I also keep up with the new civil case law published in California. I offer Zoom services throughout California and also in-person services. I've been a California civil trial lawyer since 1980 and a member of ABOTA since 1995. I've represented both plaintiffs and defendants in a wide variety of civil cases including the areas listed above. If you'd like to work with me, please contact my case manager at ADR services, Haward Cho, [email protected], (619) 233-1323.
Stat safe and healthy.
Best regards,
Monty A. McIntyre, Esq.
Lawyer Master Mentoring™
Civil Trial Attorney
Mediator, Arbitrator & Referee
California Case Summaries™
CA Civil Trial Attorney Since 1980
ABOTA Member Since 1995
Past President San Diego County Bar Assn., SD ABOTA Chapter
Phone: (619) 990-4312. Email: [email protected]
