Depositions

Colin E. Kaufman

Adam Leitman Bailey, PC

January 31, 2013

Depositions

Definition• A deposition (or Examination Before Trial [EBT]) is

• An out-of-court

• Sworn

• Statement

• In question and answer form

• Memorialized by a transcript, videotape or other means

When, Where, Why, HowWhen• After (first round of) paper discovery

• Set out in

• Notice (honored more in the breach than the observance in State practice)

• Subpoena

• Conference Order

Where• Usually in one of the lawyer’s offices

• Can be in court or at court reporter’s office

Statutory•Discovery•If you use the deposition to “discover” what happened, you have failed your client

Purposes

Trial Preparation•Admissions•Locking in•Admissibility of documents

Purposes

•“Educate” the opponent•Evaluate the witness•Find the hot buttons

Purposes

AdjournmentsWhat goes around comes around

Be reasonable

Adjournment is a lawyer call, not (usually) a client one (as long as it does not hurt the client’s case)

Preparation wins casesPreparation wins cases

Preparation wins cases

Preparation wins cases

Preparation wins cases

Preparation wins cases

Preparation wins cases

Preparation wins cases

PreparationHave a plan • You have to have a reason for being there

• Know what that reason is

Base your plan on your elements and defenses

Read every piece of paper in the file

Have an outline

DON’T write out a script

• Many

• Choose one• Examples• Chronological• Topical• Columbo• Controlled random

The witness doesn’t need to know where you’re going – you do

Structure of the Deposition

Form of Questions (2)• Can lead an adverse party (CPLR § 3113(c))

• One new fact per question

• Avoid negatives and particularly double negatives

• Make every question complete in itself (unless you are going to break the flow)• repetitive direct/cross

• Remember why you want the question and answer

• You can never go wrong with “Who (else)” “What (else/next)” “When” “Where” “How”

• Depositions are the time to ask “Why” or “Why not”

Form of QuestionsTry to talk in sentences

Make sure your question gets answered – ask it as many times as necessary to get the answer

If counsel answers and you like the answer, ask the witness “Do you adopt [not “agree with”] the answer as just given by your lawyer?

Judicial DiscoveryServe demands as a matter of course

Have one or more formatted sets

Don’t send out unreviewed demands (Bush League + gets you in trouble on motions)

Follow up• Letters (if it ain’t in writing, it ain’t)

• Preliminary Conference

• Motions

Discovery DemandsMy general set• Demand for a Verified Bill of Particulars / BoP as to Affirmative Defenses

• Discovery & Inspection of Documents and Things (D&I Notice)

• Deposition (EBT) Notice …and that you bring with you the following original documents…

• Witness Information

• Expert witness Information

• Party’s Own Statements

• Notice of Materiality & Relevance

• Notice of Non-consent

There are lots of others

Non-Judicial DiscoveryInternet

Criminal History

Interviews

Private Investigator (?)

Go to the place

IntroductionMine:• Good morning. My name is Colin Kaufman. I work with the firm of Adam

Leitman Bailey, PC. We represent defendant XYZ corporation in this lawsuit. I am going to be asking you a series of questions this morning that deal with your background, the subject matter of the litigation and the damages that you have alleged. Do you understand?

Intro (Cont)• If I ask you a question and for whatever reason you don’t hear all or part of

it, will you let us know, so that I can repeat the question?

• If I ask a question and you do not understand, will you let us know, so that I can phrase the question another way, so that you do understand it?

• You have a right to qualify your answer, that is, you can say “it was about May 5th” or “My best recollection is that it was three feet long” or “the whole incident took approximately thirty seconds” – do you understand?

Intro (Cont)• So if you respond to a question without qualification, we will conclude that

you have heard the question, you understand the question and you know the

answer. Is that fair?• You have a right to talk with your lawyer at any time except when a question

is pending, that is when the question has been asked but not yet answered. Do you understand?

• I anticipate your deposition will take about three hours. We will take a break at a convenient time every hour or so.

Areas you must cover every time

Biodata• Name, other names, DPOB, SSAN (may draw objection), residence

• Social condition – marriages, cohabitations, children

• Educational history

• Employment history

• Criminal history

Areas you must cover every time (2)

Conditions which affect ability to recall or recount• Drugs, alcohol

• Illness

• Medications skipped

Did you bring the documents set out in your notice/subpoena with you?• Go over each

• What is available, where is it, who is the custodian, who is the most knowledgeable person

• Give materiality notice again

Areas you must cover every time (3)

[In closing] You will receive a transcript of this deposition in about three weeks. At that time, you will have the opportunity to go over what you have said and make any needed corrections. But as you sit here now, is there anything you know you have misstated or you want to add or correct?

Objections – making themFrom viewpoint of the side defending• If the record is not clear – NOT YOUR PROBLEM

• Don’t object just to clarify

Under the “new rules” (22 NYCRR 221) you generally only can object to form* BUT that can cover a multitude of sins

Correct form is “Objection, Form” with a brief statement of basis if requested – if made by another party “I join in the objection”

Don’t be afraid to object to every one in a series of questions

*(or privilege, court order or plainly improper and would, if answered, cause significant prejudice to any person § 221.2)

Objections – if you are questioningListen – sometimes the other side is right – rephrase

BUT don’t be buffaloed

You may want to ask the basis of the objection

Don’t argue – you’re paying for the transcript + you can’t win without a judge there

“Your objection is noted” or “I understand your position and disagree with it”

Comportment-as a questioner-

Make it a conversation

Be respectful of the witness and of counsel

LISTEN to the answers

WATCH the witness

Be aware that untoward conduct of opposing counsel is usually for a purpose

Stick to your plan (unless something clearly better comes along)

Comportment-as counsel for the witness-

Your work should have been done beforehand

Listen to the questions – figure where they are going (which you hopefully anticip

ated)

Your demeanor should normally be pleasant and collegial • BUT may vary if needed

• Only if planned

Comportment-as counsel for the witness (2)-

Objections – briefly stated – no coaching

Object (1) to form, (2) on the basis of privilege, (3) violates court order (4) “plainly improper and would, if answered, cause significant prejudice to any person” (22 NYCRR 221)

If the other side is abusive and you can’t deal with it yourself• Call the judge

• Terminate the deposition and move for a protective order (but you had better be right)

CodaWe all want to be trial lawyers (and should want to be) BUT we conduct a hundred depositions for every trial we do

Trial is fun – depositions are work, but you can have fun too

Preparation wins cases