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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 110543
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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Following up on my earlier question about A talking to her

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Following up on my earlier question about A talking to her psychiatrist before her attorney does. Please let me know if the following facts result in a different answer. A (me) is a lawyer who has practiced law (litigation) for 30 years. (I am seeking advice because I'm too close to the case since I am a party.) I would be aware that much of what Dr. and I would discuss would not be privileged and feel comfortable that I could have a brief conversation without running into problems.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

You are not prevented from interviewing any potential witness in the case before her attorney does. Of course, her doctor can refuse to talk to you and there is nothing you can do about it if he does, but as he is a witness in the case you can talk to him before the other party talks to him and it is perfectly legal for you to contact him as long as you do not misrepresent yourself to him as representing her.

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Customer: replied 3 years ago.

Sorry - I think my question isn't clear. I (the female) am a party in the lawsuit. I may want to present the testimony of a psychiatrist I treated with in the past. Because of confidential things we discussed, I would like to talk to the dr. before my attorney does because if the dr isn't going to offer the opinion I expect, we're going to cancel his deposition and I'd rather my attorney not know the details of my private sessions with my dr. if it's not necessary. I'm an attorney so I will feel comfortable talking with my own psychiatrist - who I'm sure would talk to me. I was just wondering if my being both the former patient and a party makes my talking to my dr about what his expert opinion would be - unwise. Also, I posted this question elsewhere because when I was trying to type to you, the system froze. My attorney picked up the case from a lawyer at her firm who quit practicing law 1 1/2 years into my case. She doesn't know the case well, trial is approaching, and I don't want to move to postpone. My similar question is whether it's a bad idea for me to prepare the witness even though I think I would do a better job than my attorney under the circumstances. As a litigator, I prepared countless witnesses and experts for depositions. The difference is that this is my own (former) psychiatrist and he'd be called as a fact and expert witness in my own lawsuit.

Thank you for your clarification. I apologize for the delay as I have been out of town with a client matter.

You can talk to your doctor before your attorney does and see what he will say. The problem is that if you cancel the deposition, the other party could issue their own deposition subpoena to that doctor, so you might not necessarily avoid the doctor being subpoenaed in your case. However, you are entitled to prepare your witness for the deposition if you choose, you do not have to let your attorney do so if your attorney is not as familiar with the case as they should be.
Customer: replied 3 years ago.

My understanding from this site is that if discovery has closed, the other side could not now issue their own deposition subpoena, correct?

That is not necessarily true. If discovery is closed and you cancel this deposition, then the other side can file a motion for leave to continue and take the deposition and it would be solely at the discretion of the court as to whether or not to extend discovery for the purpose of this deposition only.
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