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Location of Depositions in Arbitration: A Potential Conflict, Easily Avoided
By David Winters Butler Rubin Saltarelli & Boyd LLP, Chicago
Binding arbitration is intended to be a more efficient means than litigation of resolving commercial disputes. Often, arbitration can save litigants time and money. There are areas, however, where arbitration can be more costly and less efficient than judicial litigation. One of those areas is the location of depositions. In federal court, the location of depositions is generally resolved by reference to well-settled law and practice. Thus, although disputes requiring a court’s intervention do arise with respect to the location of depositions in federal litigation, such disputes may be less likely to occur in federal court proceedings than in arbitration, where there are often no rules controlling where depositions are to be conducted. Opportunistic parties and their counsel may take advantage of the lack of such rules in arbitration and seek to conduct depositions on terms disadvantageous to opposing parties, including demanding that depositions take place in inconvenient locales. Thus, costly, distracting, and unnecessary conflicts can arise over the location of depositions. These types of conflicts may be avoided, however, by addressing the issue of deposition location by agreement early in the arbitration process.
1. Federal Court Rules
In federal court, the general rule is that the party who serves a notice of deposition chooses the location and may set the location wherever she wishes. See, e.g., Philadelphia Indem. Ins. Co. v. Federal Ins. Co., 215 F.R.D.492, 495 (E.D. Pa., 2003) (“[u]sually, a party seeking discovery may set the place where the deposition will take place, subject to the power of the courts to grant a protective order designating a different location”). This is consistent with the general practice that a party wishing to depose a witness issues a notice of deposition instructing the deponent to appear at a particular time and location. See, e.g., Fed. R. Civ. Pro. 30(b)(1) (“A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition.”).
By Brad Bradshaw, Ph.D. Bradshaw Litigation Consulting
Lie detection, although far from being an exact science, has come a long way over the past several years. The problem is that many of the ways liars reveal themselves is not easily identifiable in a court setting. For example, polygraphs (i.e., lie detectors) work because most people have a physiological response to lying. It is difficult to know that a person’s heart rate has increased or his hands have begun to sweat from looking at him across the room.
Pupil dilation is also a potential indicator of dishonesty, but if you are close enough to see a change in the witness’s pupils you are invading that witness’s personal space. So in an experimental setting (i.e., research laboratory with polygraph machines) it may be possible to identify deceit from the physiological change. During a deposition, however, those methods are not a viable option.
So what other options are there? One possible predictor of deception in a non-laboratory setting is voice pitch. For many people, even during little white lies, the pitch of the voice gets higher. People also tend to talk more when lying because they feel the need to provide a lot of information in order to convince the listener. They tend to sound rehearsed and repeat the same key phases several times. That information may or may not be riddled with pauses, “ums,” etc., as the person is piecing the lie together.
The problem is that some people talk that way all of the time, so you must have a baseline for comparison before you can conclude that a person is lying. I am pretty good at detecting deceit in my friends because I am familiar with their behavior when I know they are telling the truth. If the first statement out of a juror’s mouth is a lie, it will be difficult to detect, especially if the lie is a simple omission (i.e., not telling the whole truth).
These were actually said in depositions, culled by a proofreader who found them interesting enough to save and share.
A: You’ve got to figure I’m a pretty conservative lady. This is the first concert I had ever been to.
Q: Of any kind?
A: Well, I take that back. I went to Jerry Lee Lewis when I was 16 years old.
Q: There was no shooting at that concert, was there?
A: No. A whole lot of shaking going on, but no shooting.
Q: Do you recall discussing with John Smith that if you were in a deposition or anything like that and you don’t want to give the right answer, all you have to say is, “I don’t know. I don’t recall”?
A: No. I don’t remember.
Q: And what was the reason given to you for the fact you were let go?
A: The reason given to me was garnishing a knife and arguing with the supervisor.