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Posted: Sat Apr 05, 2008 11:21 am Subject: Notice to take deposition

My husband received a letter in the mail today (just delivered, not certified) from a lawyer with "Notice to take deposition under bill of discovery" on the top. It is in regards to fees that a lawyer he had retained in the past had charged him for. Back when the lawyer originally sent the bill, we disputed it as we had already paid this man $1600 and he was adding on more charges after the fact that we really did not owe. He basically said he wouldn't back down and we had to pay it. My husband just ignored it, and about 8 months ago, was served with a summons from this lawyer--but no action was taken.
This new letter says he is notified to appear before this other lawyer on April 9 for examination under oath for purposes of discovery pursuant to the KY rules of Civil Procedure. He is further instructed to bring copies of his tax returns, last checking statement, w-2's, and paystubs. They go to state "DO NOT FAIL TO APPEAR. IF YOU FAIL TO APPEAR, A SUBPOENA TO SUBJECT YOU TO CONTEMPT OF COURT PROCEEDINGS WILL BE ISSUED."
First off, my husband was laid off last April and we decided to have him stay at home with kids, so he has no income. Any and all income going in the checking account is mine. We can barely afford to live as it is, and I definitley can't afford to pay for something like this. What normaly happens in these situations? Will I be held responsible since he doesn't work?[/code]

Posted: Sat Apr 05, 2008 12:19 pm Subject:

Somebody help please!

Posted: Sat Apr 05, 2008 3:17 pm Subject:

I'm sorry to say that this is very unfamiliar territory to me and I cannot advise you here except to seek legal council of your own. Hopefully someone with more knowledge will be along and this reply will also bump the topic as well.

Posted: Sat Apr 05, 2008 3:43 pm Subject:

First and foremost, they cannot attach/garnish your income for a debt that your husband incurred. Unless you were a party to that case, which it doesn't sound like you were.

However, they may be able to seize any bank account that your husband is on. That means if you share a bank account, and your paycheck is deposited into that account, then the lawyer might be able to take it. I would suggest opening an account in your name only and have your paychecks deposited into that account.

I'm not sure what your laws are regarding service. At least in IL you would have to be served by a sheriff or process server (not by mail), but the rules may be different in KY.

If it is legitimate, your husband should attend the deposition and be prepared to answer their interrogatories. They will no doubt find that they are wasting their time/efforts since your husband has no income.

In IL if a defendant does not show up for discovery, then the judge will issue a "Rule to Show Cause" and set a new court date where you would basically have to show up with a good reason for not showing up the first time. If you didn't show up for the Rule, then the Plaintiff can motion for the judge to issue a body writ and then the sheriff's will be out with a warrant to pick you up. Again, that's in IL not KY.

The only real advice I can provide is to consult an attorney -- there are many programs out there for individuals with low income that will provide free legal advice.

cellular · Posted: Sat Apr 05, 2008 7:37 pm Subject:

I think something is wrong here you should be given adequate time to gather info and obtain legal help before being required to show up for any type of legal action. 4 days (two of which are weekend days) is not adequate.

Do you have the envelope that the letter came in?
What is the postmark date on it?

First thing monday have your husband contact the court that has jusrisdiction over you (probably your county) and see if there is any court case pending. I know you said that a summons was served on you 8 months ago but something should have happened sooner than now.
In California only a court action can mandate your appearance somewhere.

Contact your local legal aid and get some advice on how to handle this.

Your husband could not show up and claim that he had no knowledge of the date and the lawyer can not prove he did send the letter without any proof of delivery. I do not recommend this, just a thought.

Also dispute the fees with the local BAR (the lawyer licensing group). Most have mandatory arbitration.

Cellular · Posted: Sat Apr 05, 2008 7:45 pm Subject:

Here is a way that should help you.

If he does decide to go he should:
1. get the name and addresses of everybody in the room (have them all write it down on the same sheet) 2. make sure there is a court reporter recording the deposition.
3. Do not take any oath, then they cannot get you on perjury if you make a mistake.
4. Then he should answer every question, other than name address, as "due to the lack of notice I am unable, at this time, to properly answer that question."
5. DO NOT SIGN ANYTHING.
6. DO NOT SAY YES TO ANYTHING.

When they get the idea that this is not going anywhere they will end it. They will probably threaten all kinds of things but if you go to court and say that you received the notice less than 4 days before the date and did not have time to get help You should be ok.

Maybe Law Student or some of our legal eagles will weigh in.

Posted: Sun Apr 06, 2008 3:02 am Subject:

hi cdollar--

A few thoughts. First, according to KY Rules of Civil Procedure, CR 27.01(2), they must serve this paperwork to your husband no later than 20 days before the scheduled court date. Clearly they did not do this.

Second, are you certain that this new letter instructs him to appear before another lawyer? That sounds a little fishy to me.....I am no expert, but KY CR 28.01 states the following about depositions:

Posted: Sun Apr 06, 2008 9:55 am Subject:

I assume this is a lawyer, because the office they asked him to go to is listed in the yellow pages as a lawyers firm and he is listed as a general practice attorney. This guy is basically down the street from the original lawyer. The lawyer did not represent me, only my husband. (It was a family law thing)
They only gave him 3 business days to prepare for this. They mailed it on Friday, so I got it Saturday. He is supposed to show up on Wednesday at 9am. What really ticks me off is that we are going out of town all week and were planning on leaving Friday but changed our minds, so we potentially would have never gotten this in time. It's a court paper (I guess) but it's not signed by anyone other than that lawyer that he's supposed to appear in front of.
There is a "Certificate of Service" on the bottom that states

Posted: Sun Apr 06, 2008 10:18 am Subject:

This guy is just a regular atty--just found him on the Bar site.

Posted: Sun Apr 06, 2008 3:52 pm Subject:

You should check first thing in the morning to see if anything was filed with the court...if it isn't filed with the court..you can't be held to it. You could then use it against them for trying to pull that little stunt.

Posted: Sun Apr 06, 2008 6:18 pm Subject:

more than that, the rules I quoted for you earlier specifically state that they must send this to you no later than 20 days in advance of the hearing date. It is clearly marked as being sent on 4/4/08, and the date of hearing is 4/9/08. Be sure to mention that you were not provided adequate time to prepare because the plaintiff did not follow the rules of civil procedure.

Call the court tomorrow morning and verify this whole deal....it may not be real.

Posted: Sun Apr 06, 2008 6:49 pm Subject:

The Certificate of Service is just a requirement to state that a true copy has been sent to the court and all parties involved in the suit, which almost all states' rules of civil procedure require. As to the three days, etc. I don't know anything about your state's codes.

Guest · Posted: Mon Apr 07, 2008 12:42 pm Subject:

You should always comply with discovery requests. Discovery is a fact finding procedure, it is not meant to argue your case.

If you have any questions, you should consult with an attorney in your area.

Posted: Tue Apr 08, 2008 1:04 am Subject:

Yes, but only if they are done properly and within the rules of civil procedure, which is why we were suggesting the OP check with the courts to see if this was done properly.

Posted: Tue Apr 08, 2008 2:41 am Subject:

We had another guest to also suggest (in another thread) that the poster blindly comply with requests that may or may not be following proper civil procedure. Makes me wonder...

Posted: Tue Apr 08, 2008 5:40 am Subject:

I could swear that when I looked at this thread yesterday, that "guest" post said more than it does now. I am certain that it also said that these requests are not sent to the court in most places. This is wrong. Any portion of a lawsuit goes through the court.

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