DEPOSITIONS: THE ABCS OF EBTS

Prepared by Glenn Verchick, Esq.

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TABLE OF CONTENTS Introduction/Seminar Goals ............................................................................................................ 5 - 6 THE RULES - Examinations Before Trial – CPLR, NYCRR and Significant Case Law ............ 7 - 15 TACTICS – Preparation for Questioning a Witness at an Examination Before Trial ................. 16 - 17 TACTICS - Preparing Your Witness for Questioning at an Examination Before Trial .............. 17 - 23 STRATEGY – Effective Strategies for Taking and Defending an Examination Before Trial ... 24 – 26

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Glenn Verchick Werbel, Werbel & Verchick LLP 16 Court Street, Suite 2801 Brooklyn, New York 11241 718-485-0400 (Fax) 347-599-2186 werbel4law@aol.com

DEPOSITIONS IN NEW YORK STATE COURTS – THE ABCs of EBTs

Presented by The New York State Academy of Trial Lawyers

* * * * * * * This seminar program will first review the law covering depositions in New York State Courts and then review effective strategies and tactics for taking and defending depositions. The topics covered are, for the most part, discussed from the perspective of tort litigation, however, many of the subjects covered are universal to all types of litigation in New York State Courts. Seminar Goals The purpose of this seminar is to instruct the trial attorney to successfully prepare a witness for an examination before trial and to question and defend a witness at an examination before trial. In New York, the deposition is also known as an, “examination before trial” or an, “EBT.” The terms will be used interchangeably throughout. Professor David D. Siegel succinctly and accurately describes the deposition as follows:

1. Deposition on oral questions. This is one of the most useful and hence frequently used of the devices. It’s a session around a table, usually in an attorney’s office, with all the parties represented by their lawyers. The party or witness being deposed is questioned in depth by all the lawyers in turn while a stenographer, or sometimes tape or video recorder, takes everything down verbatim and afterwards reduces it to a transcript. It all takes place in front of an officer, usually just a notary public, and just as usually the stenographer has qualified as a notary and carries out both roles.

Siegel, David D., New York Practice, Fourth Edition, Thomson West, Section 350, page 569 Professor Siegel’s simple and accurate definition of the deposition describes a proceeding which is governed by a number of technical and strict rules and a proceeding, that to be conducted proficiently, requires much thought on the litigator’s part regarding preparation, tactics and strategies. The litigator should treat the deposition as a manager of a baseball team would treat a game. That is, it cannot be successfully conducted without extensive preparation, a through knowledge of the applicable rules, formulation of a strategy and, ultimately, execution of a game plan.

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This seminar is designed to help the litigator use the deposition discovery device as a tool to win cases. Anyone can ask a witness a list of questions or sit next to a client and interpose an objection now and then, but a successful litigator who knows the rules and has formulated a strategy and employs that strategy at the deposition can make effective use of the EBT discovery device to gain an advantage in the case. Hopefully, this seminar, will enhance your understanding of the rules and law governing depositions and sharpen your strategic approach and implementation of tactics at a deposition and ultimately help you win cases.

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Glenn Verchick Werbel, Werbel & Verchick LLP 16 Court Street, Suite 2801 Brooklyn, New York 11241 718-485-0400 (Fax) 347-599-2198 werbel4law@aol.com

Examinations Before Trial – The Rules In New York State Courts the use of depositions as a discovery device is largely controlled by CPLR sections 3102 through 3117 and the Unified Rules for The Trial Courts 22 NYCRR 221 and 22 NYCRR 202.15. These rules are discussed below a well as related caselaw. CPLR 3102 – Method of Obtaining Disclosure. – This section defines a deposition upon oral questions as an allowed method of obtaining disclosure. CPLR 3104 – Supervision of Disclosure. – You can seek an order for the deposition to be supervised by a referee. This is a last resort for resolution of an overly contentious situation. For an excellent discussion of the conditions calling for the use of a referee for a deposition, see, Justice Baer’s decision in Park Lexington Co. v. Triology Realty Corp., 4/2/91 N.Y.L.J. p. 22 col. 2 (SC NY Cty. 1991). See also, Laddcap v. Lowenstein Sandler, 18 Misc3d. 1130(a). CPLR 3106 – Priority of depositions; witnesses; prisoners; designation of deponents. - You have the right to take a deposition of the opposing party after the action is commenced. Before the action is commenced a court order is required. Non-Party EBT Procedure: If the person you want to depose is not a party, or an officer, director, member or employee of a party, than you must serve that person with a subpoena, unless, for some reason, the witness agrees to appear voluntarily (see, CPLR 3106(b)). You must serve the subpoena at least twenty (20) days before the EBT and you must give notice to all parties in the action at least twenty (20) days before the date noticed by the subpoena. The subpoena must be served as a summons would be, but the notice to the parties can be served by mail upon the attorneys for the parties. The subpoena and/or notice must state the circumstances or reasons why the non-party disclosure is sought. See, Kaufman v. Red Ground Corp., 170 A.D.2d 484, 566 N.Y.S.2d 70 (2nd Dept. 1991) and, In re Cavallo, 66 A.D.3d 675, 885 N.Y.S.2d 642 (2nd Dept. 2009). CPLR 3106(d) provides that if you wish to designate a particular officer, director or employee of a corporation or similar entity, you shall include the name or description of that person in the notice or subpoena. This particular witness must be produced unless, within ten (10) days of the deposition, the non-party, or the party, notifies the party requesting the deposition that another person will be produced. If this “counter notice” is timely served, the other individual shall instead be produced. CPLR 3106(c) - The deposition of a prisoner, even if a party, can only be taken with a court order. Priority of deposition lies with the defendant assuming he serves a notice of deposition on the plaintiff with his answer. However, this right of priority can be forfeited if defendant fails to serve a notice with his answer or, at least, after he answers but before plaintiff serves a notice for defendant’s deposition. If defendant fails to serve a notice upon plaintiff before his time to answer expires, plaintiff can serve a

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notice for defendant’s deposition and effectively gain priority. In practice, this rarely occurs. See, Bucci v. Lydon, 116 AD2d 520, 497 NYS2d 669 (1st Dept 1986); Hakim Consultants v. Formosa Ltd., 175 AD2d 759, 573 NYS2d 510 (1st Dept 1991). If the plaintiff is terminally ill or infirm, the plaintiff’s attorney can take plaintiff’s videotaped deposition for use at trial, despite defendant’s right of priority to depose the plaintiff. See, Fajardo v. St. Joseph’s Medical Center, 192 Misc2d 369, 746 NYS2d 779 (Sup, Ct. Bronx County 2002). It should be noted that a defendant can waive priority; in practice this rarely occurs. CPLR 3107 – Notice of taking oral questions. - This section requires twenty (20) days notice to your adversary of your intention to take the deposition of any person. The party to be examined has ten (10) days from the date of the examination to cross notice any other party for a deposition to be conducted on the same date and at the same location following his or her deposition. CPLR 3108 – Written questions; when permitted. CPLR 3108 covers depositions on written questions. The deposition can be done by written questions when the examining party and the deponent stipulate to conduct the deposition on written questions. The statute also permits a deposition on written questions when taken outside the State without the necessity of a stipulation by the parties. Depositions on written questions are rarely taken. CPLR 3108 states, “A commission or letters rogatory may be issued where necessary or convenient for the taking of a deposition outside the state.” This refers to a New York State Court issuing a commission or letters rogatory that can be used to ask a court in another state or country to assist in securing the testimony by deposition of a person in the foreign country or state. When making a motion for an open commission or letters rogatory, the moving party must show that the out of state deponent would not submit to a deposition in New York State, or be questioned voluntarily outside the State, and it must be shown that the party seeking the deposition will require the assistance of the foreign court in carry out the deposition. See, Reyes v. Riverside Park Community (Stage I), Inc., 59 A.D.3d 219, 873 N.Y.S.2d 58 (1st Dep’t 2009). CPLR 3109 – Notice of taking deposition on written questions. – This section outlines rules for taking a deposition on written questions. Location of the Deposition: CPLR 3110 – Where the deposition is to be taken within the state. - This section covers where the deposition will be held. The deposition of a party or officer, director, member or employee of a party shall be held: (1) within the county where the witness resides or has an office for the regular transaction of business in person, or (2) within the county where the case is pending. When a plaintiff files a lawsuit in New York State Court, he or she is required to appear in New York for the deposition. See, Farrakhan v NYP Holdings Inc., 226 AD2d 133, 640 NYS2d 80 (1st Dept 1996); Boylin III v. Eagle Telephonics, 130 AD2d 538, 515 NYS2d 273 (2nd dept 1987); Spatz v. Wide World Travel Serv., 70 AD 2d 835, 418 NYS2d 19 (1st Dept 1979); Mack v. J. C. Penney Co., Inc., 81 A.D.2d 761, 439 N.Y.S.2d 118 (1st Dept 1981). An exception to this rule is if the party to be deposed can demonstrate a substantial hardship. See, Swiss Bank Corp., v. Geecee Exportaciones Ltd., 260 AD2d 254, 688 NYS2d 80 (1st Dept 1996) (no substantial hardship shown, EBT must be in New York). But, see, Lee v. Corona, 2003 WL 1873748 (Sup. Ct. N.Y. County, App. Term 2003) (Plaintiff living in Malaysia and is denied Visa to return to the U.S. for his EBT. The court said he can be deposed on written questions, but must pay the cost of translation services).

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In Re: Fosamax Products Liability Litigation, U.S. Dist. Ct., SDNY 2009 U.S.Dist LXIS 27209 (March 4, 2009) (deposition of Plaintiff’s expert held in Australia with Plaintiff bearing the costs associated with one defense lawyer attending the EBT in Australia, said costs to include attorney fees.) On the issue of the location of a non-party deposition, CPLR 3110(2) states as follows:

“when any other person [i.e., non-party] to be examined is a resident, within the county in which he resides, is regularly employed or has an office for the regular transaction of business in person, or if he is not a resident, within the county in which he is served, is regularly employed or has an office for the regular transaction of business in person.”

CPLR 3110(3) covers the location of the EBT of public corporations and their officers, agents and employees (For example: NYCHA, NYCH&HC or NYCTA, or, for the definition of a public corporation, see, Gen. Constr. L. Section 66). According to 3110(3), such a deposition shall be held within the county in which the action is pending, and specifically, at the office of any of the attorneys for such a public corporation or any officer, agent or authorized employee thereof, unless the parties stipulate otherwise (For example, for a trip and fall sidewalk case pending in Brooklyn, New York, we question the defendant City witness at the corporation counsel’s office at 360 Jay St., Brooklyn, NY). For the purposes of CPLR 3110, New York City shall be considered one county. Except for depositions of public corporations, the CPLR does not specify where within a correctly designated county that the deposition shall be held. It could be held at various locations such as, an attorney’s office, the court house, a court reporter’s office, a doctor’s office, etc. Attorneys often squabble over this issue. The case law does not completely resolve the issue but it does at least suggest that a witness cannot be forced to be questioned at a location that he or she perceives to be “hostile territory.” In Ambrose v. Wurlitzer Company, 27 AD2d 732, 277 NYS2d 160 (2nd Dept 1967), the Second Department held that it was an improvident exercise of the lower court’s discretion to direct the defendant, over objection, to be deposed in the plaintiff’s attorneys office. The court directed that the deposition be held at the court house or at any other mutually agreed upon location. If you are served with a deposition notice or subpoena with a designated location that is disagreeable to you or your witness, you should serve an appropriate objection pursuant to CPLR 3122 so as not to lose the right to object to the location. CPLR 3111 – Production of things at the examination. Pursuant to this section a notice or subpoena can require production of documents at the deposition. The section does not call for specific identification of the exact documents you want. Your description should be “reasonable under the circumstances.” When drafting a document request into a subpoena or notice of deposition, try to be as specific as possible. Avoid the phrase “any and all,” which usually prompts a knee-jerk objection of, “overly broad.” CPLR 3112 – Errors in notice for taking depositions. You must raise your objection to errors and irregularities in the notice itself at least three (3) days before the deposition or else they are waived. CPLR 3113 – Conduct of the examination. Section (a) 1, 2 & 3 contain technical requirements for recording the deposition. Section 3113(b) includes, among other things, the method of recording objections and the direction that after recording the objection, “the deposition shall proceed subject to the right of a person to apply for a protective order.”

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CPLR 3113(c) allows direct and cross examination at the EBT. The witnesses’ own attorney can question his own client and can ask questions on matters not covered on direct. Pursuant to 3113(b), an attorney can submit written questions to the officer taking the deposition (i.e. – the court reporter) and the officer must read the questions verbatim to the witness and record the answers of the witness. NOTE: I have never seen this done and it does not seem to be the best way to represent your client at a deposition. However, such procedure is available. EBT by Telephone: CPLR 3113(d) is a little used but valuable section. Upon stipulation, a deposition can be taken by telephonic or other remote electronic means. This is very useful for out of state depositions. Videotaped Depositions: 22 NYCRR Section 202.15 covers when and how a deposition can be recorded by videotape. It is especially useful when you anticipate that the witness will not be available for trial. A deposition of a treating doctor can be recorded on videotape and played back at the time of trial. If the non-party doctor is represented by counsel at the deposition, his or her attorney cannot object or otherwise participate in the deposition. See, Thompson v. Mather, 70 AD3d 1436, (4th Dept. 2010). In Thompson the attorney for the non-party doctor asserted the right to object during the doctor’s videotaped deposition. The Fourth Department disagreed citing the express language of CPLR 3113 and 22 NYCRR 202.15. The Court stated, “We thus conclude that plaintiff is entitled to take the videotaped depositions of the physicians and that counsel for those physicians is precluded from objecting during or otherwise participating in the videotaped depositions.” Id. at 1438 CPLR 3114 Examination of witness who does not understand the English language. – If the witness you wish to depose does not understand the English language you must pay for and provide a translator. But, see, Ozen v. Yilmaz, 181 AD2d 666, 580 NYS2d 468 (2nd Dept 1992) where the Court shifted the burden of payment citing the Court’s discretion under CPLR 3103(a) to regulate the use of any disclosure device. CPLR 3115 Objections to qualification of person taking deposition; competency; questions and answers. – This section covers objections. It states what objections are waived unless made at the time of the taking or the deposition. (For example, an objection to the form of the question or answer is waived unless asserted at the time of the EBT). This section also states what objections are preserved for trial even if not made at the time of the taking of the deposition (For example, objections based on the competency of the witness or admissibility of the testimony). CPLR 3115 does not state when an attorney can direct a witness not to answer. “I Object to the Form” – This phrase has its roots in CPLR 3115(b). When the questioning attorney asks a question perceived by the defending attorney to be in improper form, the questioning attorney does not have to re-phrase the question. However, the questioning attorney proceeds at his or her own peril in that at the time of trial the trial court may also perceive the question to be in improper form and accordingly sustain the objection and bar introduction of the answer given by the witness to the faulty question. See, Park Lexington v. Trilogy Realty, NYLJ 4/2/91, p. 22, col. 2, J. Baer, First Dept.

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The “New Rules” – Not So New Anymore CPLR 3115 must be read in conjunction with 22 NYCRR Part 221. This court rule, which became effective October 1, 2006, was intended to change the way depositions in New York are defended by limiting the opportunity a deponent’s attorney has to interject himself into the question and answer format. This rule hoped to make longwinded speaking objections and directions not to answer questions a thing of the past. The Rule does not address with complete objectivity the instances when an attorney can direct a witness not to answer. Although 22 NYCRR 221.2 comes pretty close to defining when it can be done. Even though 22 NYCRR 221.1, et seq., defines when the attorney defending a deposition can direct his witness not to answer, there remains an element of subjectivity to such a decision because of the rules inclusion of a right of a witness to not answer a question: “when the question is plainly improper and would, if answered, cause significant prejudice to any person.” The terms “plainly improper” and “significant prejudice” are obviously open to interpretation and will have to be given definition by case law. Pre-New Rules: Directing the witness not to answer – See, CPLR 3115, 22 NYCRR Section 221.1 et seq., Spatz v. World Wide Travel, 70 AD2d 835, 418 NYS2d 19 (1st Dept 1979) and White v. Martins, 100 AD2d 805, 474 NYS2d 733 (1st Dept 1984). Spatz v. World Wide Travel, 70 AD2d 835, 418 NYS2d 19 (1st Dept 1979) is a First Department case that was decided before the New Rules became effective. In Spatz, Plaintiffs, the representatives of the class in a class action case were asked about their ability and willingness to pay the costs associated with the lawsuit. Their attorney directed them not to answer such questions. The matter came before the First Department which flatly stated in the decision, “Counsel is without authority to direct a witness to refuse to answer a question at an examination before trial.” Id. at 836, 418 NYS2d at 20. Spatz has never been overruled. In White v. Martins, 100 AD2d 805, 474 NYS2d 733 (1st Dept 1984), also a First Department case, which was decided after Spatz, the Court took the position that generally speaking a witness should answer all questions asked at a deposition, citing Spatz, but added, “But there is always the possibility of questions that infringe upon a privilege, or that are so improper that to answer them will substantially prejudice the parties; or questions that may be so palpably and grossly irrelevant or unduly burdensome that they should not be answered.” Id. In a case decided after Spatz and White, the First Department did implicitly approve of a defending attorney’s direction to his witness not to answer a question. In the case of Monica W. v. Mario Milevoi, 252 AD2d 260, 685 NYS2d 231 (1st Dept 1999), a lead poisoning case, plaintiff’s attorney directed his client not to answer questions concerning her medical condition and about the infant Plaintiff's siblings. The Court found that defendants had not established that the questions were relevant to the litigation. Cases Interpreting the New Rules: In Parker v. Ollivierre, 60 AD3d 1023, 876 NYS2d 134 (2nd Dept 2009) The Second Department held that, because of plaintiff’s attorney’s misconduct, a second deposition of Plaintiff was warranted and it should be conducted under the supervision of a referee. The decision states, “In addition, we agree with the appellant that the plaintiff’s counsel acted improperly at the plaintiff’s deposition, among other things, by making “speaking objections,” correcting the plaintiff’s testimony, and directing the plaintiff on a number of occasions not to answer certain questions.” Id. at 1024, 876 NYS2d at 136. The Court found that the objections were improper as they were not authorized by 22 NYCRR 221.2.

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Pendleton v. City of New York, NYLJ 5/15/08, p.28, col.3 & 4, p. 29, col. 1 & 2 (Sup. Ct. N.Y. County 2008). In Pendleton, Justice Miller found, “that defense counsel erroneously instructed Falcone [the defendant police officer] not to answer plaintiff’s questions at the deposition, which was conducted subsequent to the October 1, 2006 effective date for the Uniform Rules for the Conduct of Depositions.” The questions that were impermissibly blocked related to prior complaints made against the police officer defendant. Laddcap Value Partners, LP, v. Lowenstein Sandler, PC, 18 Misc.3d 1130(A), 2007 WL 4901555, (Sup. Ct. N.Y. County 2007). Based on counsel’s obstructionist tactics at the deposition of his client, the court granted the moving parties’ request for an order to hold further EBTs at the courthouse and for a special referee to be present. The moving party did not request sanctions, but they probably should have based on the tone of the decision by Justice Edmead. Simmons v. Minerly, 16 Misc.3d 1128(A), 2007 WL 2409595 (Sup. Ct. Dutchess County, 2007) – In this case, based on the obstreperous conduct of plaintiff’s counsel at a deposition, the court denied defendant’s request to strike the complaint, but granted defendant’s request for sanctions and awarded 2,500.00. Paca v. City of New York, 51 AD3d 991 (2nd Dept 2008). In Paca, the attorney for the defendant City of New York directed his witness not to answer questions about the propensity for violent acts of a student who brought about the injury of the plaintiff. The plaintiff moved to strike the City’s answer for failing to answer the questions. Plaintiff did not seek a ruling on the propriety of the questions or make a motion to compel answers to the questions. The Second Department decided the matter without reference to the New Rules. They found that the fellow student’s records were of no relevance to the matter and that the refusal to answer was not willful or contumacious. Delta Financial v. E. Morrison, 15 Misc.3d 308, 829 NYS2d 877 (Sup. Ct. Nassau County,20 07) – Non-Party witness refuses to answer questions based on the assertion of the attorney work product doctrine and the attorney client privilege. The court found that no such privilege existed and directed the witness to appear for a further deposition and answer the questions. Velez v. Bear Sterns & Co., Inc., NYLJ 2/08/10 - In this case, plaintiff’s attorney directed plaintiff not to answer certain questions. Defendant made a motion asking the Court to compel Plaintiff to answer the questions. The Court reviewed the permissible grounds for refusing to answer a question at an EBT pursuant to 22 NYCRR 221.2 and concluded that plaintiff’s attorney did not properly assert any of the allowed grounds on the record at his client’s EBT. The Court ordered a further EBT of Plaintiff and stated, “. . . it does not appear that these privileges were specifically asserted at the deposition. Only excerpts from both depositions were submitted, and within those excerpts, counsel seems to have merely objected to the questions and marked them for a ruling without asserting any privilege at that time.” The Court went on to recognize counsel’s right at the further EBT to assert a privilege as a basis for directing the plaintiff not to answer a question. Sanctions For EBT Misconduct: Refusing to answer a question at a deposition can be costly. See, O’Neill v. Ho, 28 AD3d 626, 814 NYS2d 202 (2nd Dept 2006) – In O’Neill, a $1,500.00 sanction was assessed for refusing to answer a question at a deposition but the defendant’s answer was not stricken. This case was decided before the new rules came into effect. In Erhard v. Panzer, 168 AD2d 416, 562 NYS2d 542 (2nd Dept 1990), the Second Department affirmed the imposition of sanctions on the plaintiff’s attorney for abruptly ending a deposition of a non-party

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witness. The Panel found that CPLR 3126 authorized sanctions against a party for unjustified conduct at a deposition. In Qi Tai Chan v. Society of Shaolin Temple, Inc., 910 NYS2d 872 (Sup. Ct. Queens County 2010) defendant’s attorney was ordered to pay $2,000.00 in sanctions for obstructionist tactics at his client’s deposition and to pay the costs of a further deposition of defendant and to pay for a special referee to be present at the further EBT. It is interesting to note that this case was decided in 2010 but the decision does not refer to the Uniform Rules for the Conduct of Depositions. CPLR 3116 – Signing deposition; physical preparation; copies. – Any changes to the transcript must be made within sixty (60) days after the transcript is submitted to the witness. If you miss this deadline, the transcript can be used as if signed and no changes can be made thereafter. Changes are to be made on an ERRATA sheet and attached to the back of the transcript. Remember, pursuant to 3116, the old answers remain, in addition to the changes, and the witness can be cross examined concerning both. What if a non-party witness does not review and sign the transcript? This was addressed in Moffett v. Gerardi, 2010 Slip Op 05990 (2nd Dept 2010). In Moffett, plaintiff’s attorney could not establish that he or she sent the deposition transcript to the non-party witness for signature pursuant to CPLR 3116(a) and therefore it would be inadmissible at trial. Plaintiff’s attorney argued that since defendant noticed the EBT and hired the court reporter he assumed the defendant’s attorney was sending the transcript to the witness for execution. Since this was a reasonable excuse, the Court did consider it on a motion for summary judgment. See, also, PSG Psychological, P.C. v. State Farm Ins. Co., 6 Misc 3d 1002A, 800 NYS2d 355 (Civ. Ct. Kings 2004) (Defendant could not use an unexecuted EUO transcript in support of motion for summary judgment because defendant did not make a showing by affidavit that the transcript was sent to the witness for execution). CPLR 3116(b) – When at the beginning of an EBT the attorneys agree to, “the usual stips” one thing that refers to is stipulating to waive the requirement that the officer (court reporter) file the deposition transcript with the clerk of the Court where the action is pending. CPLR 3117 – Use of depositions. – This section outlines when and how a deposition can be used at trial. It should be read and studied in detail so you have complete understanding of when and how a transcript can be used at trial (See also, PJI 1:94). Some key points: 3117 allows a transcript to be read if the witness is dead. 3117 allows a transcript of a witness licensed to practice medicine (in any state) to be read regardless of availability. CPLR 3117 - Any party can use any deposition for the purpose of contradicting or impeaching the deponent as witness. However, a plaintiff or defendant cannot introduce his or her own deposition testimony. See, M.S. v. County of Orange, 640 AD3d 560, 884 NYS2d 74 (2nd Dept 2009) But, see, Sadhwani v. NYCTA, 66 AD3d 405, 890 NYS2d 458 (1st Dept 2009) (Plaintiff with memory loss causally related to accident can introduce her transcript at trial). CPLR 3117 – Any party can use an adverse parties’ deposition at trial for any purpose. So, if you are a plaintiff you can read all or parts of the defendant’s deposition transcript at trial on your case in chief as well as during cross examination for purpose of impeaching and contradicting testimony. For use of a deposition of a non-party, you must satisfy one of the five requirements of CPLR 3117(a)(3).

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NEW SECTION - CPLR 3119 Effective January 1, 2011. This new section concern depositions sought within New York by a party to a case pending in another states or U.S. territory. Dealing with the witness/party who does not appear for a deposition despite notice, subpoena or order requiring such - CPLR 3124 - Covers obtaining an Order compelling disclosure. When this fails, CPLR 3126 – Covers the penalties for failing or refusing to appear for a deposition. A non-party witness who refuses to comply with a subpoena for an EBT is subject to contempt. See, Schneider v. 17 Battery Place North Assoc., 289 AD2d 164, 735 NYS2d 509 (1st Dept 2001). Dismissal of complaint is an appropriate penalty for refusing to answer questions at a deposition. In Recht v. Teuscher, 176 AD2d 863, 575 NYS2d 513 (2nd Dept 1991), plaintiff employed obstructionist tactics at an EBT and repeatedly refused to answer questions in contravention of the Court’s Orders. In response, the defendants moved to dismiss the case. The trial court granted the motion on default, and the Second Department upheld the dismissal as the appropriate sanction. Multiple EBT’s of the Plaintiff: When a third party defendant is added to the case after the EBT of the plaintiff is conducted, that third party defendant is not necessarily entitled to a full and complete deposition of the plaintiff. See, Gibson v Transact International Inc., 133 AD2d 807, 520 NYS2d 187 (2nd Dept 1987) (Newly impleaded 3rd party defendant does not get a complete deposition of plaintiff, but may only inquire as to matters not covered or fully and adequately explored during plaintiff’s first deposition). Corporate Witness – Who to Produce? Whether being deposed as a party or non-party, a corporation has the right, in the first instance, to designate the person from the corporation who will be produced. Necchi S.P.A. v. Nelco Sewing Machine Co., 23 AD2d543, 256 NYS2d 347 (1st Dept 1965). If the witness is deemed to possess inadequate information concerning the matter at hand, then the party seeking the corporate deposition must show need for second specific witness. See, Simon v. Advance Equipment Co., 126 AD2d 632, 511 NYS2d 68 (2nd Dept 1987); vanBergen v. Long Beach Medical Center, 277 AD2d 374, 717 NYS2d 191 (2nd Dept 2000). For the opposite result, see, Pisano v. Door Control, Inc., 268 AD2d 416, 702 NYS2d 307 (2nd Dept 2000). In Seattle Pacific Industries, Inc. v. Golden Valley Realty Associates et al, 54 AD3d 930, 864 NYS2d 500(2nd Dept 2008) the Second Department clearly annunciated the rule for compelling the production of an additional corporate witness. The Court stated, “In order to show that an additional deposition is warranted, the movant must demonstrate that (1) the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case [citations omitted].” Id. at 932, 864 NYS2d at 502. Medical Malpractice – Standard of Care Questions: Carvalho v. New Rochelle Hospital, 53 AD2d 635, 384 NYS2d 508 (2nd Dept 1976) – This rather short decision laid out the following principle for questioning defendant doctors in a malpractice action: “In an action for malpractice brought against more than one physician, one defendant physician may not be examined before trial about the quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness (citations omitted). Where, however, the opinion sought refers to the treatment rendered by the witness,

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the fact that it may also refer to the services of a codefendant does not excuse the defendant witness from deposing as an expert (citation omitted).” See also, Giventer v. Rementeria, 693 NYS2d 878 (Sup. Ct. Richmond County 1999). Lead Poisoning Case – EBT of Drug Addicted Mother: Steinberg v. Montefiore Medical Center, 23 AD3rd 281, 808 NYS2d 6 (1st Dept 2005), The Second Department ruled in favor of the defendant seeking an EBT of the infant plaintiff's mother whose drug abuse, even though such appeared to predate the pregnancy (although defendants argued to the contrary) may have been a cause of the infant plaintiff’s injuries. NOTE: Because the appeal essentially concerned questions the mother refused to answer at a deposition, the Appellate Division considered the lower court ruling as not appealable as of right. However, deemed the notice of appeal as a request for permission to appeal and granted such leave. But, see, Monica W. v. Mario Milevoi, 252 AD2d 260, 685 NYS2d231 (1st Dept 1999) (Majority of questions about siblings of lead poisoned infant plaintiff not allowed). Right to Appeal a Ruling on an EBT Question/Refusal to Answer: Miracolo v. Daimler-Benz, A.G., 141 AD2d 513, 529 NYS2d 135 (2nd Dept 1998)- Regarding appeals of EBT rulings, the law is: “No appeal lies, either as of right or by permission, from rulings made during the course of an examination before trial [citations omitted]. This holds true even if, as here, the ruling is reduced to an order, unless such order is made upon a complete record on an application seeking either to compel answers to questions or obtain a protective order [citations omitted] and even in such case, it is appealable only by permission [citation omitted]. NOTE: The lesson to be learned is that it is arguably better to note your objections on the record, as opposed to, “calling for a ruling,” and then later make a motion on the record/transcript regarding the issue so as to preserve, at least, the right to seek an appeal by permission. See also, Caraballo v. NY Hospital, 170 AD2d 190 (1st Dept 1991). 2011 Considerations - The age of the internet, cell phones, PDA’s, laptops and social networking sites. Automobile Accident – Cell Phone Records – Laptops – Detraglia v. Grant, 68 AD3d 1307, 890 NYS2d 696 (3rd Dept 2009) Deposition of defendant’s information technology employee warranted where there was an issue as to defendant driver’s use of a cell phone and/or laptop at the time of the accident. Discovery – Social Networking Sites – Romano v. Steelcase, Inc., 907 NYS2d 650 (S.C. Suff. Cty. Sept. 21, 2010, J. Jeffrey Arlen Spinner); McCann v. Harleysville, 910 NYS2d 614 (4th Dept. 2010). The lesson to be learned from Romano and McCann is that in a personal injury action, the plaintiff’s attorney must review the internet pages from a client’s social networking sites, and, at least for now, resist discovery of restricted pages.

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Preparation for Questioning a Witness at an Examination Before Trial

• READ THE FILE – Review your file to determine if anything is missing from the file. Do not proceed with the deposition unless you have all documents, discovery responses, photographs, medical records and physical evidence necessary to question the witness.

• If the case calls for it, VISIT THE LOCATION of the accident or incident. Especially in an automobile accident case, this is essential.

• MEET WITH YOUR CLIENT – Your client’s observations and information concerning the incident in question can prove to be invaluable in questioning the witness.

• PREPARE AN OUTLINE – Use an outline to guide you through questioning of the witness. A verbatim list of questions is not necessary. Ask questions “in your own words.” Pay attention to sequence of questioning. Make sure the outline and resulting deposition is all inclusive.

• ESTABLISH GOALS – What testimony do you want to elicit from the witness? – For example, in an auto accident case, you will try and elicit testimony to support your claim that the defendant driver violated a section of the Vehicle and Traffic Law. The same is true of a defendant questioning a plaintiff in an auto case, assuming the plaintiff was a driver. You will want to establish that the plaintiff or defendant violated a section of the Vehicle and Traffic Law. Before the deposition, make a “wish list” of what testimony you would like to elicit from the witness and then at the deposition see how close you come to fulfilling your wish list.

• KNOW THE STANDARD OF CARE – Be completely familiar with the statutes, if any, that relate to the conduct of the witness you are questioning. (For example, In a construction site accident case: 241(6) and applicable Industrial Code Rule 23, 12 NYCRR 23; In an auto case: Vehicle and Traffic Law and Traffic Rules of The City of New York; In a medical malpractice case: the informed consent statute Public Health Law 2805-d. Read similar cases which will define the standard of care in various situations; for example, you cannot effectively conduct the EBT of a dog owner in a dog bite case without knowing how the case law has defined vicious propensity and notice thereof.

• Start at, “THE END” (not Montauk, the PJI!) - Make a copy of the PJI section(s) that will likely be charged in the case. Craft questions designed to elicit information and admissions to support your position with regard to the charge.

• KNOW THE JARGON - Speak and understand the language. The deposition is conducted in English but because it may involve a particular area of expertise, it may seem like its being conducted in Latin. Don’t allow your lack of knowledge and inability to “speak the language” to hinder your ability to conduct the deposition1

• CONSULT WITH YOUR EXPERT – For example, in a products liability case, I don’t see how you can question a corporate employee concerning an allegedly defective product without consultation with an expert before the EBT. For defendants in a serious injury threshold case, ask your expert he symptoms associated with the injuries claimed by plaintiff.

. Understand all jargon, technical terms and special knowledge associated with the case. This may require extensive independent study and a consultation with an expert.

• ANTICIPATE OBJECTIONS – put yourself in the shoes of both an obnoxious, obstreperous adversary and a skilled polished adversary and imagine what objections would be raised by these two types of characters. Formulate responses to their objections.

1 This is not to say that it is sometimes useful to feign ignorance in order to prompt the witness to educate you about what they perceive you are in the dark about. Some witnesses with special expertise love to listen to themselves educate the ignorant lawyer, but don’t rely on this happening, just enjoy it when it does.

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• Prepare to make inquiry on COLLATERAL MATTERS. Do a background search on the witness, check the credentials of professionals, find prior testimony if it exists; get transcripts of the witnesses’ prior testimony.

• BE ORGANIZED - Prepare the exhibits that you will use at the deposition so they are ready at hand. Shuffling papers and searching for documents disrupts the flow of your questioning and makes you look unprepared and incompetent.

• DETAILS, DETAILS. . . Don’t overlook details – Remember to order the court reporter, translator, video technician, etc.; arrive on time; know the telephone number of the assigned judge so you are ready if a ruling is necessary; make sure you have all exhibits to be used at the EBT; dress like you would for a trial, even if its Casual Friday; be prepared to conduct a thorough and professional examination of the witness.

PREPARATION - Preparing Your Witness for Questioning at an Examination Before Trial

Your client may have never testified before. This is a strange proceeding to him or her and they must be made ready for it. They must understand how it will be conducted, how to conduct themselves and what the goals of the questioning attorney will be. Many of the principles discussed herein apply to depositions in all types of civil cases and apply to the preparation of a defendant in a negligence case, but this outline will tend to be specific to the preparation of a plaintiff for his or her deposition in a personal injury case. The scope of permissible questioning of a plaintiff in a personal injury case has increasingly become broad and wide. Therefore, it has become critical for plaintiff’s attorneys to consider the many potential areas of inquiry that may arise during the deposition and to prepare their client to respond to same. When preparing your client for the EBT, stress the need to provide truthful, accurate answers to all questions posed. Start to prepare for the deposition of the plaintiff the day you are retained so you will have all the information that the defendants will have when formulating their questions. This is done by obtaining all documents and records that will have a bearing on the issues of liability and damages in the case. Explain to your clients the nature of a deposition so they will not only know what type of questions that will be asked but will also understand why certain questions are asked. In order to effectively prepare your client for his or her deposition, the client must understand what will occur at the deposition and how the deposition will be used in the lawsuit. The preparation for the deposition is done in private in the attorney’s office. It is a confidential communication between the attorney and the client and as such the proposed testimony that will be offered by the client can be reviewed and discussed in great detail without fear that the pre-deposition discussion will ever be revealed to the adverse parties’ attorneys. For instance, should the opposing counsel ask the client during the deposition if the case was discussed with their attorney and if so what was discussed, an objection should be interposed and the client should be directed not to answer such a question. The gravity of the proceeding must be impressed upon the client. The deposition testimony can be used as evidence in chief in their case. It can be submitted as evidence in a summary judgment motion and can be read as evidence-in-chief by the defendants at trial or used at trial during cross examination to impeach inconsistent testimony. Therefore, it should not be perceived by the client as a casual question and answer session with an opposing but friendly attorney. For example, a good defense attorney will try to make the plaintiff comfortable in order to encourage the free flow of relevant information.

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The client should be aware that he or she will be sworn to tell the truth and knowingly false statements made by the client during the deposition can subject the client to prosecution for perjury. The testimony adduced at the deposition will be admissible at trial and become evidence-in-chief. Therefore, the client should know that what is said at a seemingly informal question and answer session is really no different than actually testifying in a courtroom at trial. The deposition is likely to be the first time your client will give sworn testimony on his or her version of the facts underlying the claims presented. Therefore preparation for this litigation event is essential. Thorough preparation can enhance the merits of your case while lack of preparation can prove to be your undoing. Clients must understand that what is discussed at the pre-deposition conference is privileged and therefore the meeting is an opportune time to air out their thoughts, concerns and positions on the case. Communications from clients to their attorney are privileged and frankness and honesty from your clients should prevail and be encouraged. While your clients’ testimony must be 100% truthful, it can be, with the attorney’s assistance, presented in a light most favorable to their claim. NOTE: Accept full responsibility for how your client looks, acts and testifies at the EBT. The ability to present your client and his or her testimony in a favorable light is a notable difference between the average lawyer and the successful lawyer. I suggest that the best place to begin preparing your client for a deposition is to explain to your client how the deposition will be used in at trial. The client should understand that EBT testimony is taken under oath and that a knowingly false statement could subject the client to prosecution for perjury. They should understand that his or her testimony will be recorded and, pursuant to CPLR 3117, said testimony can be used at trial by the adverse party, “for any purpose” and can be used at trial to, “impeach or contradict” future testimony. For these reasons, it is essential that your client’s testimony be as accurate as possible. Testimony Will Be, “Set in Stone”: It should be further emphasized that your client’s testimony will be, for all practical purposes, “set in stone.” CPLR 3116 permits the witness to make any changes in their answers in the transcript in form or substance that the witness desires. The changes are to be entered at the end of the deposition transcript with a statement of the reasons given by the witness for making them. See, CPLR 3116 and Danyluk v. Gitlin, 221 NYS2d 405 (Sup. Ct. Nassau County 1961). Courts have held that the changes are to be made at the end of the transcript with an explanation for the changes and that no changes can be made to the body of the transcript. See, Skeaney v. Silver Beach Realty Corp., 10 AD2d 537, 201 NYS2d 163 (1st Dept 1960). As a practical matter, assuming the deposition testimony is used against your client at trial or in a summary judgment motion, the changes function as nothing more than a qualification or clarification of the testimony in the body of the transcript and, at worst, represents an inconsistent or contradictory statement. For these reasons, it should be emphasized to the client that even though changes can be made after the EBT, he or she will nonetheless be stuck with what was said in the first instance. Affidavits “Feigning Issues of Fact”: Furthermore, the sworn testimony in an EBT transcript may be part of the basis for a summary judgment motion and deficiencies cannot be corrected with an affidavit tailored to defeat the motion. The Appellate

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Division repeatedly deals with this type of affidavit in slip and fall cases. See, for example, Karwowski v. NYCTA, 44 AD3d 826 (2nd Dept 2007) and Denicola v. Costello, 44 AD3d 990 (2nd Dept 2007). In both Karwowski and Denicola, the plaintiffs testified at their respective EBTs that they did not know what caused them to fall. When the defendants moved for summary judgment, the plaintiffs submitted affidavits identifying the cause of the fall. Both cases were dismissed. The Second Department views such “after-the-EBT” affidavits as submitted to raise a feigned issue of fact designed to avoid the consequences of earlier deficient EBT testimony. Consider, in limited circumstances, and in limited scope, cross-examination of you client to cure a fatal deficiency in the direct testimony. Such is permitted under CPLR 3113(c). You may inquire outside the scope of the direct pursuant to CPLR 3113(c). False Testimony and Proposed False Testimony: Even though such a situation is unfortunate to have to encounter, there exists the possibility that a client may communicate to his or her attorney a willingness to provide false testimony with the hope of enhancing his or her position in the litigation. This issue will not be covered in depth at this seminar, but you should be prepared to respond to and deal with such an encounter. For edification on this topic, see, New York Professional Disciplinary Rule 3.3, New York County Lawyer’s Association, Committee on Professional Ethics Formal Opinion 741 (March 1, 2010) and New York State Bar Association Opinion 837 (March 16, 2010). Background Checks on Your Client: Another reason for not tolerating false or inaccurate testimony is that the defense is, at times, very adept at obtaining extensive background information about the plaintiff and uncovering prior inconsistent statements of the plaintiff. The plaintiff must be made aware of the probable investigative prowess of the defense which is presently conveniently aided by the age of the internet and as such the plaintiff must be encouraged to answer questions with accuracy and veracity. The client should be aware that the well prepared adversary will have done background checks on them to determine if they have a criminal record, if they ever filed a lawsuit, if they ever were sued as a defendant in a lawsuit, if they ever testified before and that defendants will, in a personal injury accident case, perform a claim information bureau search to see if they have ever made any injury or property damage claims against an insurance company. This is all permissible investigation and some of the information may be relevant and admissible in the case the plaintiff is currently pursuing. Proper representation of a plaintiff calls for the plaintiff’s attorney to also perform the same searches and conduct the same investigation that the defendants will conduct. In this regard, let’s assume your client suffered a knee injury in an automobile accident. Let’s further assume that he is a construction worker who has worked construction for twenty years and is a member of a Union. Because of the physical nature of the job and the inherent dangers of the job, he may have multiple workers’ compensation claims in his work history. Some may be for relatively minor injuries where he received minimal treatment. The plaintiff legitimately may not remember every visit to the emergency room or doctor’s office in his twenty year work history. In such a case, you should not allow him to rely on his memory. If you obtain his workers’ compensation records for the length of his work career, it will reveal any information necessary to prepare for questioning about prior similar injuries. In such a case, I prefer to have a client who testifies that he had a prior knee injury ten years ago, went to the doctor one time for treatment of this injury that proved to be superficial and did not cause him or her to

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lose time from work as opposed to a client who, because of faulty memory, testifies that he never injured his knee before this accident. Client with a Criminal Record: Since a witness may be asked if they ever were convicted of a crime or plead guilty to a crime, it is important to review a client’s criminal history. If they have none, good. If they have a criminal history, it should be examined closely to help the client distinguish between being “charged” with a crime and pleading guilty or being convicted of a crime. Only convictions and guilty pleas are relevant. It is the result of poor preparation if the client is asked if they were ever convicted of a crime and in answering this question discuss crimes that they were charged with but not convicted. It is unnecessarily embarrassing to the client and taints the minds of the already suspicious defense counsel with something that will never be admitted at trial. It should be noted that not all convictions or guilty pleas will be admissible at trial and, if appropriate, a motion in limine should be considered at the time of trial. Surveillance Tapes: Your client’s testimony must dovetail with what is shown on existing videotape or with what may appear on future tapes. The Court of Appeals has said that if you make a timely demand, you are entitled to the tapes before plaintiff’s EBT, but defendant can wait until after the EBT to make surreptitious recordings. See, Tran v. New Rochelle Hospital Medical Center, 99 NYS2d 383, 756 NYS2d 509 (2003). Collateral Source Records: In discovery, the defense will obtain authorizations for discovery of collateral source information for the purpose of establishing the right to a collateral source offset for special damages. Aside from providing information concerning reimbursement amounts, there is secondary information that is being increasingly exploited by defendants’ attorneys. Medicare, Medicaid and private health insurance records often contain the names of doctors, pharmacies, hospitals and health care providers that have sought reimbursement for anything and everything that plaintiff ever sought treatment for. This leads to questions at an EBT regarding the nature and extent of care and treatment provided by these doctors that are listed on insurance reimbursement forms but that may not be listed in the bill of particulars or other discovery exchanges. Since, for the most part, information relating to medical conditions that are not part of plaintiff’s injury claim is privileged (and I am admittedly clinging to this theoretical concept despite recent case law which tends to compel exchange of, “everything under the sun.” This being my personal experience lately and not necessarily the view of the Academy), these records must be obtained by plaintiffs also and reviewed with the client before the deposition so that, if appropriate, the objection based on the physician-patient privilege can be properly interposed and questioning can be cut short. This cannot be done unless the records are reviewed with the client before the EBT. “Have You Reviewed Any Documents In Preparation For Your Testimony Today?” At some point in time during the deposition, your client may be asked if he or she reviewed any documents or records in preparation for his or her deposition. Hopefully, you will have discussed this with your client prior to the deposition. If the client has looked at documents or records for such purpose, those documents are discoverable, even though they may otherwise be protected by a privilege such as attorney-client privilege or the attorney work product privilege. This problem most often arises when the client has kept a diary relative to the litigation or a chronology of events for their own purpose without the expectation that it would ever be revealed to the opposing party.

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The seminal case in this area is Doxtator v. Swarthout 38 AD2d 782, 328 NYS2d 150 (4th Dept 1972). In Doxtator, the defendant doctor in a medical malpractice case testified that she made some notes after the incident in question which she described as “a resume of what I considered the pertinent facts that I wanted to recall” and that she reviewed them before testifying. The plaintiff moved for production of the notes. The defendant resisted production. The Court ruled that the writings, since used by the witness prior to testifying for the purpose of refreshing the memory of the witness, should be made available to the adversary. With regard to defendant’s argument that the writings were subject to a privilege and therefore not discoverable, the Court stated, “… whatever privilege may have attached to these notes made by defendant as “material prepared for litigation,” it seems to us, should be deemed waived when the party’s deposition testimony is based, at least in part, on that material. When these notes were used by defendant to refresh her recollection, they became material affirmatively used in litigation and thus removed from the protection afforded under discovery practice, because her adversary then had a legitimate interest in inspecting this material in order to conduct a meaningful examination.” Id. The same result was reached in Rouse v. County of Greene 115 AD2d 162, 495 NYS2d 496 (3rd Dept 1985). In Rouse, The plaintiff testified that her mother kept a diary which was a day-to-day account of plaintiff’s medical treatment. Plaintiff testified that she reviewed this diary to refresh her recollection prior to testifying. The defendant moved for production of the diary. Plaintiff asserted that it was privileged. The Court held, “Where, as here, a witness testifying at a pretrial examination uses some writing to refresh her memory and bases her deposition testimony on that writing, any claim that the writing is privileged as having been prepared for litigation has been waived.” Id. In Merrill Lynch Realty Commercial Services, Inc. v. Rudin Management Co., Inc. 94 AD2d 617, 462 NYS2d 16 (1st Dept 1983) the witness, an officer in plaintiff’s company, testified at his deposition that he drew up a chronology after talking to an outside attorney. He further testified that he reviewed the chronology in preparation for his deposition testimony. The defendant made a motion for production of the chronology. The plaintiff said it was protected by a privilege and not discoverable. The First Department held that it was discoverable and that the privilege was waived when it was used to refresh the memory of the witness before testifying. The privilege was also held inapplicable to a tape recorded statement that a witness listened to prior to testifying at a deposition, see, Herrmann v. General Tire and Rubber Co. Inc. 79 AD2d 955, 435 NYS2d 14 (1st Dept 1981); and to an entire insurance company claim file that the witness reviewed prior to testifying, see, Stern v. Aetna 159 AD2d 1013, 552 NYS2d 730 (4th Dept 1990); and to a 23 page corporate memo was ordered to be exchanged because it was used to refresh deponent’s memory preceding the EBT, see, E.R. Carpenter v. ABC Carpet, 98 Misc2d 1091, 415 NYS2d 351 (Civ. Ct. N.Y. County 1979). It should be noted that the rule stated in the seminal case of Doxtator, supra, has been held not to apply in family Court proceedings. See, In the Matter of Lenny McN. and Others 183 AD2d 627, 584 NYS2d 17 (1st Dept 1992). In addition, the rule in Doxtator, has been held by the Third Department not to apply to documents found to be privileged under New York State Public Health Law § 2805-l. See, B. Fernekes v. Catskill Regional Medical Center, 75 AD3d 959, 906 NYS2d 167 (3rd Dept 2010). Based on the foregoing, exercise caution in what you show to your clients in preparation for the EBT and thoroughly review with your clients what they may have reviewed at home in preparation for the EBT. Immigration Status: If you practice in New York City, I is likely that you have a client who is “undocumented.” If that is the case, this subject requires some thought and discussion with your client. The client should be made aware that many attorneys pursue a line of questioning relating to a plaintiff’s immigration status. The client should know that you may be successful in objecting to this line of questions, See, Asgar-Ali v. Hilton,

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9/24/04 N.Y.L.J. 18, col. 1, (Sup. Ct. N.Y. County). However, you may not, see, Bakhtadle v. Riddle, 4/28/05 N.Y.L.J. p. 22, col. 3, (Sup. Ct. Rich. County). You probably will not if it has an effect on past or future lost earnings. Verified Pleadings: Pursuant to CPLR 3020, pleadings and bills of particular have to be verified by the client if they reside in the same county as the location of their attorney’s office. If the complaint and/or the bill of particulars are verified by the client, it would seem to me to be a mistake not to review these documents with the client before they testify. A party can be cross examined as to the contents of pleadings if they verified same. See, Figueroa v. Maternity Infant Plaintiff Care Family Planning Project, 243 AD2d 424, 665 NYS2d 257 (1st Dept 1997). As such, the client should be made aware of the contents of the bill of particulars, particularly the injuries alleged, the time claimed missed from work and the time claimed spent in bed and house recuperating from the injuries alleged. However, while a witness can be questioned about factual content of a pleading or bill of particulars, there is case law that supports the proposition that they cannot be questioned about questions of law or about legal contentions and claims made in the lawsuit. See, Barber v BPS Venture, Inc., 819 NYS2d 329 (3rd Dept 2006); Lobdell v South Buffalo Ry., 159 AD2d 958, 552 NYS2d 782 (4th Dept 1990). Also, beware that your client, in a case against a governmental entity, may be questioned about the contents of a notice of claim or similar document, assuming they signed same and attested to the truth of the contents. Prior Inconsistent Statements: Prior inconsistent statements can be a mine field for the unprepared witness. In a personal injury action, the plaintiff generally creates a paper trail of statements (or misstatements) following the accident leading up to the time of the deposition. If you, as the attorney, do not have these statements in your file, then you are unprepared for the deposition. The police report, the ambulance call report, the hospital record, the workers’ compensation file, the social security disability file, employment records and all other records of medical care providers may contain statements attributable to your client about the incident in question and/or the injuries sustained. You need to know what was said by your client, or rather, what was recorded as having been said by your client to persons making entries in such documents. SOME FINAL NOTES:

• The prep should not be done on the same day as the examination before trial. If it is done the same day, you cannot visit the location or obtain records that are not part of your file and if you find yourself in such a situation, you may not be able to adjourn the EBT on the day of the event because all parties are there and ready to go.

• The client should put their best foot forward. The defense will prepare a report concerning the deposition and will include observations about the plaintiff. The plaintiff should be instructed to dress neatly, be well groomed and come prepared to patiently answer all questions asked, even if it takes the whole day, as it may in a case alleging significant injuries and disabilities.

• Clients should avoid off the record conversations with the defense counsel, no matter how casual and inconsequential such may seem to be.

• Clients should stop talking when you object.

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• Clients should wait for the attorney to finish asking the question before responding; Don’t step on the question.

• Clients should listen carefully to the question and only answer that question, i.e. – don’t offer extraneous information.

• Clients should answer with a yes or no when appropriate and not “yeah” or “nah” or by a non-verbal nod of the head.

• Clients should be instructed to avoid profanity and not offer to draw diagrams or fish in their wallet or purse for information they do not know.

• Even though the urge may be hard to resist, spouses who are co-plaintiffs should be quiet and not make faces when their spouse is testifying.

• A client should not bring documents to the EBT unless instructed to do so by his or her lawyer.

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STRATEGY – Effective Strategies for Conducting an Examination Before Trial Examination of the Witness - GOALS, STRATEGIES AND TACTICS:

• ELIMINATE SURPRISE – Find out everything relevant to the case. • Find out what materials where reviewed and who the witness spoke to about the EBT and the case. • “BOX THEM IN” - Narrow your opponent’s position. Eliminate escape hatches and possible

explanations for an occurrence or course of action. • Establish and obtain ADMISSIONS as to standards of care. • Gather information for COLLATERAL ATTACKS. • PRESERVE TESTIMONY. • Discover and specifically IDENTIFY RELEVANT DOCUMENTS and photos, videos,

witnesses, etc. • Define the extent of the deponent’s INDEPENDENT RECOLLECTION. • LOOK & LISTEN – in addition to working through your outline for the deposition, never

overlook the appearance and demeanor of the witness. While gauging whether a witness is lying based on his or her mannerisms and change in vocal tone is admittedly an “ultra advanced litigation technique,” there is no time like the present to begin mastering the art. Beware the wily witness - sometimes a seemingly responsive answer is designed to avoid providing a damaging admission. Remember, the answer is more important than the question.

• CLARIFY GREY AREAS – if you do not completely understand a written statement (e.g. – in an accident report or medical record) you must seek clarification at the deposition.

• Listen to the answer your question evokes – Does it require a follow-up question? Don’t walk away from a question because you got an answer. Analyze the answer and evaluate if an unscripted follow-up question is in order.

• PROBE! - Now is the time to ask: “why” or “why not” and “please explain what you mean by that.”

• STAY THE COURSE - Do not be dissuaded and thrown off course by the obstreperous adversary or the difficult witness. Know the law regarding objections and directing a witness not to answer and use it to enforce your right to a full and fair deposition. Again, stay the course, keep plodding along even when your examination is not proceeding with the grace and elegance you hoped for. Your adversary may want to try and make you feel foolish so you will give up on a line of questioning.

• MIX IT UP – Throw the off-speed pitch. A witness will prefer to be questioned in chronological order. For example, a witness is anticipating the pedigree “softball” questions at the beginning, like education and employment history questions. Hit them with a question on a critical point from the beginning before they get comfortable with the proceeding.

• Explore the BIAS of the witness (see, PJI 1:91.1, 1:92). • EVALUATE THE WITNESS – will the jury like them? Make note for future reference. • LEAVE NO STONE UNTURNED - There is no shame in reviewing your notes before

concluding the deposition. In an effort to “look and listen” and be spontaneous you may have overlooked questioning on a relevant topic. Read your notes and don’t conclude the deposition until you are satisfied that you have covered all relevant topics and achieved your goals.

• “LOOP IT” – Many thanks to fellow Academy Board member Mitchell Proner, Esq., for this tip: Take favorable testimony from the witness and incorporate it into subsequent questions, for example – Question: Did your car come into contact with Plaintiff? Answer: The front of my car struck the Plaintiff. [now, “loop it”] Question: When the front of your car struck the Plaintiff,

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where were you looking?; Question: When the front of your car struck the Plaintiff, how fast were you going? etc., etc.

STRATEGIES AND TACTICS - Defending Your Client at an EBT: When defending a client at a deposition, be alert and prepared to object. You must object to questions that are not proper in form or else the objection is waived (See, CPLR 3115(b) and 22 NYCRR Part 221). An example is a compound question. For example, “Did you go to the doctor after the accident and did your husband go with you? Another is a question that contains incorrect assumptions of fact, for example (assume the date of accident was April 11, 2006), “Did you injure you knee in the accident of April 11, 2005?” Even though you have interposed an objection to the form of the question, the questioning attorney can proceed, at their peril, and ask for an answer without rephrasing the question. In addition to interposing objections as to the form of the question, you should be alert to questions that may violate a privilege of the client. Privileged matter is not obtainable through discovery, See, CPLR 3101(b); be prepared to object to questions calling for privileged material. Some examples of privileged materials are: attorney/client - CPLR 4503; physician/patient – CPLR 4504; right against self incrimination – CLR 4501. For example, “What did you say to your attorney about the accident when you first met with her?” This is an objectionable question based on a privileged communication. However, it would seem that a question concerning the date that an attorney was first retain would be permissible. Questions concerning a client’s medical condition, even in a personal injury case, may be objectionable as protected by a privilege. If so, according to the new rules, an objection should be interposed with a brief statement as to the basis for the objection. During the EBT, make observation of the physical and/or mental condition of your client. Is she getting tired and irritable? You are trained to sit uninterrupted at an EBT for 2 to 3 hours. Your client does not do this every day. If you see that your client is fading, call for a short break so he or she can refresh themselves with coffee or glass of water. Also, make sure your client is prepared for a full day of questioning because, in certain cases, it can take that long. NOTE TO LAZY ATTORNEYS: You cannot overcome a deficient preparation of your witness with obnoxious objections. REMEMBER: The most important part of defending your client at a deposition occurs well before the day of the event at the preparation meeting. Once the EBT is underway, be professional and mature, irrespective of the questioning lawyer’s demeanor. A good attorney can maintain control of the deposition despite an obstreperous adversary. With regard to calling for rulings, in my opinion, it is usually more beneficial to resolve a “stalemate” objection without resort to a telephone call to the judge. You never know what judge you will get to make a ruling and you will be forced to try and persuade him or her without the opportunity to brief the issue. Plus, if the judge making the ruling is flat out wrong on the law, you have no recourse to an appeal. The better course is to make the objection on the record allow the EBT to proceed and bring a motion after the deposition. See, Miracolo v. Daimler-Benz, A.G., 141 AD2d 513, 529 NYS2d 135 (2nd Dept 1998).

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Assert objections with confidence. Have a working knowledge of the Uniform Rules for the Conduct of Depositions. Be able to quote from the Rules and tailor your objection to fit within the boundaries of the Rules. Do not let your client be examined concerning documents and photographs which have not been exchanged pursuant to discovery demands and discovery orders. The classic example here is the attorney who fails to exchange photos or a deponent’s statement pursuant to court order or demand and then springs it on your client in the middle of the deposition. This is completely improper and the lowest form of “trial by ambush.” This problem can be avoided by reviewing your file before the EBT and not agreeing to produce your witness until the outstanding discovery has been provided. When defending a deposition, tell your client to be careful of making statements while “off the record” and advise them not to engage in conversation with the adverse attorney during breaks and when otherwise off the record. This can lead to areas for further examination which otherwise would never have been explored. Prepare your client for the worst – it should come as no surprise to your client that the deposition takes longer than expected, is terribly tedious and tiring and is being conducted by an arrogant, rude, bombastic boar. Make sure your client rises to the occasion and comes across as someone who will be liked by a jury. One of the primary objectives of your client’s EBT is for the questioning attorney to be left with the impression that your client is a great witness and that this same impression will be made upon the jury at trial.