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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 118253
Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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I asked my attorney. He said he filed motion to compel mediation(in

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I asked my attorney. He said he filed motion to compel mediation(in July) which lead up to the set up of pre-trial conference in November. When I asked further when should file the motion of waiving the mediation request, he said at the pre-trial conference if mediation fails due to the cooperation issue of the defendant.
Does that sounds reasonable? The court first asked for mediation in April, it will take until November to file for the mediation waive request.

Given my attorney has filed mediation compel request and we provided mediator list to the defendant, doe you think we will not responsible for the failure of mediation should that happens by November?
Thank you for your new question.

Absolutely this sounds correct. You need to tell your attorney in no uncertain terms, at the conference that he is to object to any other continuances of the defendant and he is to file a motion stating mediation would not be done in good faith by the defendant based on the defendant's conduct of causing these delays throughout the case. You would not be responsible for this, ultimately the court will give the defendant enough rope and then they will get tired of his games and will hit him hard with a judgment.

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Customer: replied 4 years ago.

Thanks. One more thing is about evidence collection besides mediation.

KY medicaid has sent me the record of their payment to defendant. The amount is consistent with the false billing (i.e. the actual work did by another doctor who does not qualify for Medicaid billing). I just need to have witnesses who testify that the defenant did not practice and therefore not possible to receive such amount from Medicaid. Since the business has basically closed, I have to keep track on those wintess in order to subopnea them in trial. Is this the only way to wait until the trial? I mean I cannot have them write something as witness. I know the government investigator has interviewed them (the two to three wintess) and asked whether the defendant worked or not. But government US attorney told me attorney that they cannot share information. In case I cannot find those witness by the time of trial, is it possible to let court subponea the government investigator about his interview with the witness?

Thank you for your response.

You can call the witness to a deposition, which is a statement taken before a court reporter and the defendant receives notice of the deposition so their attorney can be present to cross examine, and once you have the deposition in the case, a deposition can be entered in trial as testimony if you cannot locate the witness to testify in person. An affidavit cannot be used because the defendant did not have chance to cross examine the party giving the affidavit and as such the affidavit is considered inadmissible as hearsay.

Thus, if you want the witnesses and to preserve their testimony you have to schedule them for depositions and subpoena them to a deposition and send notice to the other party of the deposition.
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