Debtor Exams VS Depositions

Published: 18th June 2015
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There are 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 for the example, although the ideas described here are similar in most jurisdictions.

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

In California, there's not anything like a post judgment deposition. A deposition is sent before the judgment; during an active lawsuit, usually during the lawsuit discovery stage. You do not need to keep an attorney present for depositions (or for a debtor examination). There are 3 primary differences between depositions and a judgment debtor exam:

1) In most jurisdictions, depositions are usually with active lawsuits, judgment debtor examinations always are used in post-judgment situations.

2) Prejudgment depositions are subject to a wide variety of objections when responding to a question or requests for document evidence. judgment debtor examinations are rarely subject to successful objections to any question, or (when proper procedures get followed) to furnish documents.

3) The defendants in a prejudgment deposition may assert several rights not to answer a questions, whereas in a post-judgment exam, it's very rare that your debtor may refuse to answer questions, although they are free to lie whenever they wish.

If it is a pre-judgment deposition, a deposition subpoena is served, and whenever that subpoena orders your deponent to show up in court; then the court reporter will swear them in and records their answers, and they become evidence that is admissible.

In a debtor examination, any evidence you find (for example by maybe hiring a professional court reporter) is for you only; it is not stored at the court. You may use any info you discover as either a possible lead to available assets to attempt to garnish in the future, or some clue on whom to bring in next to be a 3rd-party witness; or to maybe be helpful for some potential new (for example a fraudulent creditor transfer) lawsuit.

In a judgment debtor exam, the specific form of a question asked is not grounds for a debtor not to answer your questions. A lawyer may object to a question, although after that the deponent (which can be a third-party witness, although usually is the judgment debtor) usually must answer your question or lie. See Stewart vs Colonial Western Agency 87 Cal. App. 4th 1006.

Many experts and attorneys begin depositions and debtor examinations with their direct questions, and just do admonitions (briefly reminding people on laws or penalties) if necessary. Admonitions are very often used if the testimony is about to "get good" (the deponent is about to start lying).

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

With post-judgment exams, the court order directing the judgment debtor or a 3rd-party to show up at your exam, is the only method for taking post judgment testimony. Judgment debtor exams always are done at court, although they most often take place mostly inside a jury area or in the hallway, instead of inside the courtroom.

A judgment debtor examination is a hearing in public, and courts quickly rules on any objections. Some depositions are not heard in courts; some are accomplished via the mail or at an attorney's office, etc. Getting relief to objections on a deposition request usually requires a noticed motion. At some courts, a judge may resolve disputes on deposition items over the phone.

The scope of questions you may ask at your debtor exam is much more expansive than at a deposition. While a general rule is that generally rules are generally inapplicable; in California the spousal privilege doesn't often apply in an examination proceeding, as per Code of Civil Procedure 708.130.


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