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Today’s entry is really for other lawyers here in Atlanta, or really
anywhere in the state of Georgia.

As a lawyer who handles
serious injury lawsuits, I sometimes have to deal with a very sad reality. Sometimes the plaintiff
who has come to me is very, very seriously injured – so much so
that he or she is dying.

In many instances, the case can still be proven even after the plaintiff
dies. But for some cases, the testimony of the dying person is absolutely
essential to making the case. What do you do when you need the testimony
right now, before you even file suit? In that case you need to do what
is called “perpetuate” the testimony.

The statute that governs the issue is
O.C.G.A. § 9-11-27, “Depositions before action or pending appeal.” And, although
I am referring to the situation where a party is dying, the statute could
apply to any situation where you are concerned that a witness’ testimony
is critical to your case, and the witness may not be available at the
time of trial.

According to the statute, you “may file a verified petition in the
superior court of the county where the witness resides.”

The petition has to have several elements:

(1) entitle it with the name of the petitioner who needs the testimony;

(2) explain that the “petitioner expects to be a party to litigation
but is presently unable to bring it or cause it to be brought”;

(3) state what facts you expect to prove;

(4) explain your “reasons for desiring to perpetuate” the

(5) name or describe the people you “expect[] will be adverse parties”,
and state their addresses, if you know them;

(6) state the name and address of the person you want to depose, and what
you expect the testimony to be about; and

(7) request an order authorizing the petition to take the depositions
“for the purpose of perpetuating their testimony.”

You then serve a notice on each expected adverse party, attaching the petition,
explaining that you plan to ask the court for an order at a specific time
and place.

The notice should be served at least 20 days before the date of hearing.
If you cannot make service, the court can order service by publication
and appoint someone to represent the persons who have not been served,
and to cross-examine the deponent. The petitioner has to pay a reasonable
fee to the attorney. The court also has to appoint a guardian ad litem
to represent an expected adverse party who “is a minor or an incompetent
person and does not have a general guardian.”

In deciding whether to enter the order, the court should consider whether:
“the perpetuation of the testimony may prevent a failure or delay
of justice.” If the court grants the order, the order should designate
the people whose depositions will be taken, and state the subject matter,
and state whether the deposition is to be taken by oral examination or
written interrogatories.

You also can request depositions while an appeal is pending (or about to
be pending) to perpetuate the testimony of witnesses “for use in
the event of further proceedings in the trial court.”


Lee’s peers have named her a Georgia SuperLawyer every year for two decades.