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If my childrens attorney fell asleep during a deposition would

If my children's attorney fell...
If my children's attorney fell asleep during a deposition would that be grounds for a new trial?
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Answered in 5 minutes by:
8/30/2013
Brandon M.
Brandon M., Attorney
Category: Personal Injury Law
Satisfied Customers: 12,620
Experience: Attorney at Law
Verified

Brandon M. :

Hello there.

Brandon M. :

I see that you joined the chat. Welcome.

Brandon M. :

Are you able to see this and reply?

Customer:

hi yes I am

Brandon M. :

Great. Thank you for your question.

Brandon M. :

This matter has probably caused you some distress. Were you present at the deposition when this happened?

Customer:

yes I was....so was my attorney....he marked to awaken her by saying "I didn't know you were here?

Brandon M. :

For how long was the attorney asleep?

Customer:

for several critical minutes

Brandon M. :

You mentioned that your attorney was present at the deposition as well. Was the outcome of the case affected by the attorney falling asleep?

Customer:

absolutely

Brandon M. :

Explain.

Brandon M. :

(please)

Customer:

This is an unjust enrichment case. My inlaws took andvantage of a mistake my husband made on his life insurance form. They ended up receiving 225.000 thousand dollars. we had 4 children when he died ...at the time he signed the form we had just one. he listed my inlaws assuming they would be consided contingent benificialries ... he didn' t read the fine print and the form was extremely confusing. I listed the additional 3 children on the suit. the judge appointed a lawyer to represent them. She ended up taking a position against me suggesting it was wrong to file a suit against my children grandparents. Sh basically decided to not actively participate. I ended up having to pay her 23 thousand dollars.

Brandon M. :

Here comes the bad news.

First, I'm struggling with the idea that there was any prejudice to your case as a result of the attorney sleeping. The children's attorney is not responsible for representing you; the attorney is responsible for representing the children. Regardless of whether the children's attorney did a great job, a terrible job, or no job at all, it would not have any bearing on your rights being protected. Regardless of whether it feels like this attorney should behave differently or take a different position, this is how it is. Second, you had an attorney present, so that is your assurance that your rights were protected in this process. Third, at a deposition, the function of an attorney is to examine or cross-examine the witnesses being deposed for the purpose of discovery and, if necessary, to be used as evidence later. If anything needed to be asked of the witness, your attorney could ask those questions regardless of whether the children's attorney was awake. There's also no requirement that the questions be asked in any particular order, so an attorney could ask the question at any time, even if he or she was asleep for part of it. Additionally, an attorney could ask that any portion of the record be played back during the course of the deposition itself, so a sleeping attorney would be entitled to have the record played back. I'll take your word for it that the period of sleep was several "critical" minutes, but 99% of the information gathered in a deposition is not useful to a case, but the whole thing is being recorded so it's not as if the sleeping attorney wouldn't be able to access the information later. Fourth, and most importantly, a deposition isn't a trial--it's not the last opportunity to produce the deponent as a witness. The same witness can be pulled back into court and asked the exact same questions at the trial itself.

In sum, it's near to impossible for the client's case to be prejudiced in that sort of situation. Even if the client's case was prejudiced, it wouldn't be grounds for a new trial. In civil matters, the malpractice of an attorney is the grounds for a malpractice suit against the attorney for any damages suffered. Criminal trials can have new trials granted because the defendant has a Constitutional right to effective counsel, but there is no such right in a civil matter, so even the worst representation in the world would not result in a right to a new trial in a civil matter. Furthermore, the attorney has no duty to any other party, so only the client would have a case for malpractice against their sleeping attorney--no other party would have standing to make such a request.

Customer:

my inlaws called the department of children and families on me in an effort to keep the money. the dcf decision was given to the judge...the childrens attorney suggested that I was filing a suit to cover up for my angst. I won the case against dcf but it was a herendous experience. they signed a document saying the didn't do it when indeed they did. During that critical testimony kids attorney fell asleep.

Customer:

This had to predjudice the judge

Brandon M. :

If the judge decides a case based on facts not entered into evidence, that is judicial misconduct, which is potential grounds for a new trial.

Customer:

My husband met with a life insurance agent 10 days before he died ....I was present at the interview in our home. he told the agent that I had 500,000 through his employer. He was an extremely credible witness. We lost the opportunity to discredit my former fathr inlaw because the attoney fell asleep at the deposition. My attoney filed a motion to get the transcript and the judge denied the motion. Yet he read the dcf decision which was submitted to the court.

Brandon M. :

Why did you need the children's attorney to discredit your former father in law at the deposition? Why couldn't your attorney do it? Why did your attorney have a file a motion to get a deposition transcript? Why would a judge deny that motion? Why couldn't your attorney or the children's attorney discredit your former father-in-law at trial?

Customer:

Because my father in law suggested my deceased husband intended to leave him money because we had a trouble marriage. We did not have a trouble marriage and he is a liar. My father in law sent a letter to me swearing he didn't make the phonecalls and had the document notorized. My attorney wanted to avoid the matter entirely because he believed it had nothing to do with my husbands intent when he signed the form. The judge denied because he didn't believe it was relevant to the matter at hand which was my husband intent the day he signed the form. My inlaw attorney submitted the DCF decision so we believed we wanted to prove they

Customer:

were responsible for making the phonecalls and I had reason to keep them out of our lives.

Customer:

Forgot to tell you that my childrens attoney filed to get out of th case after he was paid because of what was suggested to be a conflict of interest.

Brandon M. :

I appreciate that additional information. However, my answer actually remains the same. Another party's attorney has no duty to you, so it is not a basis for retrial no matter how badly they do their job. If a judge abuses his or her discretion, that is a basis for appeal, but that is because the judge failed to his or her job, not because the attorney failed. I don't know if you have discussed this with your existing attorney, but if so, was the answer any different?

Customer:

I feel like my attorney had a duty to report my childrens attorney to the judge. I have to believe he was not interested in redeposing my inlaws ...and didn't believe it was necessary. He was working on a contingent basis. I asked about the legal malpractice time limit was in NJ and he refused to get involved.

Customer:

I want the retrial for my kids

Brandon M. :

If your attorney failed to act competently, then that could constitute a basis for a malpractice suit against him by you. Because of all the issues that came to surface in your case, I would recommend that you contact an attorney that specializes in professional malpractice to go over your case.

Customer:

what is the statute on limitations on filing an suit against an attorney in New jersey

Brandon M. :

I apologize for the delay. I had to do a bit of research on that question because the statute of limitations for a professional malpractice claim against an attorney in New Jersey had, for some time, been six years from the date of accrual in most cases. However, there has been a bill that would shorten the length of the claim to just two years. It's important to note that every case is different, so no assumptions should be made about whether the statute of limitations has passed without a full analysis by an attorney specializing in that field of law. With my training and experience, I understand the basics of malpractice, but it's a highly specialized area of law that most attorneys (including myself) steer clear of. It's kind of like the brain surgery of the legal world, if that comparison makes sense.

Customer:

totally understand. I knew there was a bill but like you could not get an answer. Would you be interested in referring me to a malpractice attorney?

Brandon M. :

I might be able to help with that. Where in New Jersey did the case take place?

Customer:

Essex county

Brandon M. :

Ok, I don't have anyone in Essex who handles professional malpractice (as I mentioned, it is a highly specialized area), so my inclination would be to refer you to the Essex County bar association. You can email them [email protected] or telephone them at(NNN) NNN-NNNN Just tell them that you're looking for a referral to a professional malpractice attorney, and they can direct you to someone who is reliable.

Customer:

thank you so much!

Brandon M. :

It was my pleasure. I do wish you the best. Have a good night's rest.

Customer:

thanks

Brandon M.
Brandon M., Attorney
Category: Personal Injury Law
Satisfied Customers: 12,620
Experience: Attorney at Law
Verified
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Brandon M.
Brandon M.
Brandon M., Attorney
Category: Personal Injury Law
Satisfied Customers: 12,620
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Experience: Attorney at Law

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