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Debtor Exams And Depositions
This article is my opinion, and not legal advice. I am a judgment broker, and am not a lawyer. If you ever need any legal advice or a strategy to use, please contact a lawyer.
In California, there is no such thing as a post-judgment deposition. Depositions are used before the judgment; during lawsuits, usually during the discovery stage. You do not necessarily need to have an attorney present for a deposition (or for a judgment debtor examination). There are three primary differences between a deposition and a debtor examination:
1) In most states, depositions are usually for an active lawsuit, debtor examinations are always for post-judgment situations.
2) Prejudgment depositions are subject to a wide variety of objections in response to questions and requests for document evidence. Judgment debtor examinations are rarely subject to successful objections to questions, or (if proper procedures are followed) to produce records.
3) A defendant in a prejudgment deposition can invoke several rights not to answer a question, whereas in a post-judgment examination, it is rare that a judgment debtor can refuse to answer a question, although they are free to lie whenever they wish.
In a prejudgment deposition, a deposition subpoena gets served, and if the subpoena orders the deponent to appear in court; then the court reporter swears them in and records their answers, and they become admissible evidence.
At a judgment debtor examination, any evidence you discover (for example by perhaps hiring a court reporter) is for your own use; it is not filed with the court. You can use any information you discover as either a possible lead toward available assets to attempt to levy later, or an idea about who to bring in next as a third-party witness; or to perhaps help with some potential new (e.g., fraudulent transfer) lawsuit.
In a judgment debtor examination, the form of the question asked is not grounds for the debtor not to answer your question. A lawyer can object to any question, however after objection, the deponent (which can be a third-party witness, however usually is the judgment debtor) usually must answer the question or lie. See Stewart vs Colonial Western Agency 87 Cal. App. 4th 1006.
Many lawyers and experts begin depositions and debtor examinations with their direct questions, and only do admonitions (briefly reminding people about laws or penalties) when necessary. Admonitions are most often used when the testimony is about to "get good" (the deponent is about to start lying).
The civil discovery act does not apply to judgment debtor examinations. Because judgment debtor examinations are not trials, it is difficult to imagine some lawyer bringing a motion later to exclude answers given in your debtor's examination, in the same way they could in a deposition, to exclude answers for a trial.
With post-judgment exam, an order directing the judgment debtor or a third-party to appear for an examination, is the sole method of taking post-judgment testimony. Debtor examinations are always court proceedings, although they usually take place primarily in a jury room or out in the hallway, rather than in open court.
A judgment debtor examination is a public hearing, and the court immediately rules on any objections. Some depositions are not taken in courts; some are done by mail or at an attorney's office, etc. Getting relief to objections on a deposition request usually requires a noticed motion. In some courts, the judge might resolve deposition disputes over the telephone.
The scope of questions one may ask at a judgment debtor examination is much more expansive than at a deposition. Although the general rule is that general rules are generally inapplicable; in California the spousal privilege does not usually apply in an examination proceeding, see CCP 708.120 and 708.130. Family law (142 and 150) forms have good examples of questions for examinations.
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