Being a Central and Syracuse New York accident lawyer requires me to subpoena Central New Yorkers to testify many, many times a year. Sometimes I even have to subpoena children. Tomorrow I will take the subpoenaed deposition testimony of several child-witnesses to my child-client’s Seneca County New York personal injury case. I served a subpoena on their parents notifying them that they were required to bring their child to my office to give testimony on the matter. That must have been quite a shock to them!
I certainly don’t relish putting a family through the stress of a subpoena and then a deposition, but sometimes I can’t avoid it. I have a duty to represent my client diligently, and in this case that means finding out what these child-witnesses know, and making a record (called a transcript) of it.
On the other hand, for the kids it’s probably not so bad. (“Cool — I get out of school for the morning!”) The parents, though, are probably kind of worried (“what the hell do they want my kid to testify for — did he do something wrong?”)
The children will, of course, be accompanied by at least one parent. I always try to make the parent and the child feel very comfortable with the process. I try to make it a lesson in civic duty. I explain that our civil justice system works because lawyers are allowed to subpoena witnesses to say what they know about a court case.
The first order of business when taking the testimony of a child is making sure the record reflects that they are capable of taking an oath. I must show, on the record, that they understand what an oath is, or at least that they know the difference between a right and wrong, between a lie and the truth, that lying is wrong.
Deposing a child is different from deposing an adult. First, if you have a heart, and believe it or not most lawyers do, you really want to avoid making the child feel at all picked on or uncomfortable. I try to dig out the truth without being overly aggressive. I avoid any hostile gestures or intonations. I try to befriend them. I feel I get more truthful answers this way, and I also avoid making the child feel at all uncomfortable.
Children, especially very young children, can make poor witnesses. I have deposed children who have given me contradictory stories about what happened within the span of only a few minutes. They are usually not lying. I think they feel they need to know the answer, so if they don’t know, they sometimes make it up. Then they forget what they just told me and make up a new story. They have several stories in their little heads!
Tomorrow the kids are a little older, around 12, so I shouldn’t have this problem. I hope to get the truth, the whole truth, and nothing but the truth! Wish me luck.
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Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyer Michaels & Smolak, P.C.