January, 2009 Letters
More on Depositions
I have read Mr. Rendzio’s article, “Invoking ‘the Rule’ During Depositions? Absolutely ‘Maybe’” (Nov. 2008), with some interest. I have two bones to pick with him. First, Rule 1.310(c) says that examination and cross examination of witnesses may proceed as permitted at the trial. At trial, they cannot proceed in the presence of a person who may be a witness if the rule is invoked.
Second, I do not agree that Black’s Law Dictionary equates a proceeding to a court conducted matter. The definition is clear. It includes the statement “including all possible steps in an action from the commencement to the execution of judgment.” The citation shows a further expansion.
The third edition says in the first citation: “An act which is done by the authority or direction of the court. . . a prescribed mode of action for carrying into effect a legal right.”
The second citation says: “Any step taken or measure adopted in the prosecution or defense of an action.”
The third citation says: “The word. . . may be used to describe any act done by authority of a court of law and every step required to be taken in any cause by either party.”
The fourth citation says: “The proceedings of a suit embrace all matters that occur in its progress judicially.”
It is a word that expands or contracts with the use made of it in a particular instance.
I disagree with Mr. Rendzio’s conclusion that F. S. §90.801 on hearsay has anything to do with the rule requiring witnesses to remain outside of a deposition. Justice Thornal once told me the Supreme Court of Florida was the poorest draftsman in the state. He may be right, but I disagree. I believe that honor should be bestowed on the legislature.
The Smith opinion is not clear, but Judge Hair’s reasons for denying the protective order indicate that Dr. Parks could have been the representative of the Board of Regents. The rule sequestering witnesses is not a procedural rule. It is one of substantive law. The discussion in Smith to the contrary is wrong. Any discussion by the Smith court concerning any matter other than a delay in invoking the rule and the fact that Dr. Parks was present for the Board of Regents is dicta.
Henry P. Trawick, Jr., Sarasota
Author’s Apology
The article, “Reasonable Consideration of Medicare’s Interests in Workers’ Compensation Settlements,” as published in The Florida Bar Journal, November 2003, plagiarized the work of Melisa C. Zwilling and Bennet L. Pugh (“Dealing with Medicare Issues in Workers’ Compensation Settlements”), published in The Florida Bar Journal in February 2003.
I apologize to the authors mentioned here, as well as to all members of The Florida Bar. I am so very deeply sorry for this mistake.
Rafael Gonzalez, Lithia
Editor’s Note:
The above acknowledgement and apology is one of the components of the suspension of Mr. Gonzalez from the practice of law for three years by the Supreme Court of Florida per case Nos. SC07-2314 and SC08-434.
