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Depositions Compared To Debtor Exams







There's a big distinctions between post-judgment debtor examinations, which are often abbreviated as JDXs (JDXs are also called ORAPs - ORders to APpear, or OEXs - Orders for a debtor's EXamination), and prejudgment depositions. This article uses California as the example, although the concepts described here are similar in the majority of states.

My articles are my opinions and are not, a legal opinion. I'm a judgment broker, and not an attorney. When you ever want legal advice or a strategy to use, you should retain a lawyer.

In California, there is no such thing as a post-judgment deposition. Depositions are sent before the judgment; during lawsuits, usually during the lawsuit discovery period. You do not need to keep a lawyer present for depositions (or for a debtor examination). There's three main differences between depositions and a debtor examination:

1) In the majority of states, depositions are usually with current lawsuits, debtor exams are always for post-judgment situations.

2) Pre-judgment depositions get subjected to a wide variety of objections when responding to questions and requests for evidence or documents. judgment debtor exams are rarely subject to successful objections to questions, or (if the correct procedures get followed) to produce records.

3) A defendant in a pre-judgment deposition can assert several rights not to answer a questions, in contrast to a post judgment examination, it's rare that your judgment debtor can refuse to answer a question, although debtors may lie whenever they wish.

In a pre-judgment deposition, the deposition subpoena gets served, and if that subpoena orders the respondent to appear at court; then the court reporter swears the deponent in and records their answers, and it becomes evidence that is admissible.

At your judgment debtor examination, all evidence that you find (as an example by perhaps hiring a professional court reporter) is for your own use; it's not filed at your court. You can use all info you discover as either a potential lead to available assets to try to garnish in the future, or some clue on who to subpoena next to be a third-party witness; or to perhaps be helpful for some potential new (for example a fraudulent transfer) lawsuit.

At your debtor exam, the form of a questions asked is not grounds for a debtor to not answer a questions. An attorney may object to any questions, although after that a respondent (which may be a 3rd-party witness, although most often is a judgment debtor) most often must answer your question or lie. Related to this is Stewart vs Colonial Western Agency 87 Cal. App. 4th 1006.

Some experts and attorneys start depositions and debtor exams with direct questions, and just do admonitions (reminding people briefly about laws or penalties) if it is necessary. Admonitions are very often recited when the debtor's testimony is about to "get good" (the deponent is about to start lying).

The 1986 civil discovery act does not apply to debtor examinations. Because judgment debtor examinations are not court trials, it's difficult to comprehend an attorney starting some motion after the exam to strike answers given in your judgment debtor's exam, in the same way they could in their deposition, to exclude answers for a lawsuit trial.

With post-judgment examinations, the court order commanding the debtor or a 3rd-party to show up for an exam, is the sole method for taking post judgment testimony. Debtor examinations always are court proceedings, however exams usually happen primarily inside the jury area or out in the hallway, instead of in open court.

A debtor exam becomes a hearing in public, and courts quickly decides on any objections. Some depositions are not heard in courts; they are sometimes done by mail or at an attorney's office, etc. Getting an objection approved usually requires a noticed motion. In some courts, the judge might decide disputes on deposition items over the telephone.

The scope of questions one can ask at a judgment debtor exam is much more comprehensive than at a deposition. Although the general rule is that generally rules are usually inapplicable; in California the spousal privilege doesn't often apply in an examination proceeding, see CCP 708.130.


About Author Mark Shapiro :

Judgment recovery, is a collections effort, which means to collect or enforce your judgment. Judgment buyers are available and can help with your judgment recovery efforts. Mark Shapiro of <a href="http://www.JudgmentBuy.com" target="_blank">http://www.JudgmentBuy.com</a> - The easy, free, and best way to find the best expert to buy or recover your judgment.


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Article Added on Sunday, June 15, 2014
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