NYSBA What is a ?

Bridge the Gap Black’s Law Dictionary defines a deposition as: Skillfully Handling Your First A pre‐ device by which one party (through their Deposition attorney) asks oral questions of the other party or a witness for the 10 Tips for Success other party… under oath outside of the Court Room. Charles J. Siegel, Esq., Law Offices of Charles J. Siegel A Deposition can also be taken of a non‐party witness. Cynthia Camacho, Esq., Malapero & Prisco, LLP Mirna Santiago, Esq., Acacia Network

What is the Purpose of a Deposition? Party Depositions:

• Assess the witness (i.e. are they likable, credible, articulate, how do The priority of depositions is dictated by who serves the notice of they hold up under pressure, etc…) deposition first. However, the cannot serve his/her notice of • Lock in witness testimony to use in support of a Summary deposition until the ’s time to has elapsed. If a or at the time of trial defendant delays service of his notice of deposition until after plaintiff serves a notice, defendant will have lost its priority. Most attorneys • Preserve testimony of a witness who may be potentially unavailable serve a deposition notice along with their Answer in order to preserve at the time of a trial the priority. • Identify information not learned through other discovery devices (i.e. degenerative pre‐existing conditions, physical limitations, etc…)

1 Non-Party Depositions Rules Governing Depositions

Where the person to be examined is not a party, he/she shall be served • Uniform Rule Part 221 with a subpoena. The subpoena shall be served at least twenty days • 221.1 ‐ Objections at Depositions prior to the deposition unless the Court otherwise orders. • 221.2 –Refusal to Answer When Objection Is Made • 221.3 – Communication With The Deponent • CPLR § The other parties are entitled to notice of the non‐party deposition. • 3113 – Conduct of the Examination • 3114 – Examination of the Witness Who Does Not Understand the English Language The deposition is held in the County in which the non‐party resides, is • 3115 – Objections to Qualifications of Person Taking Deposition, Competency; regularly employed or has an office for the regular transaction of Questions and Answers business in person. • 3116 – Signing Deposition; Physical Preparation; Copies

TOP TIPS FOR YOUR FIRST TOP TIPS FOR YOUR FIRST TEN DEPOSTION TEN DEPOSTION 1. Create a Theme For Your Case 2. Know What You Will Need to Prove to Prevail on Your Case & Obtain the Necessary Discovery a. In all cases, there’s a plaintiff’s side, the defendant’s side and the a. Read the relevant Pattern Instructions for your case truth b. Do a thorough investigation of the claim needs to be done including b. The theme is the story that you would tell the jury so they’ll see procuring all necessary evidence/information through the discovery things from your side process c. Every story has a theme; just need to uncover it c. Obtain relevant information d. Begin thinking about the theme of your case from the outset. You d. Obtain necessary Liability Discovery should definitely have a theme in place prior to the deposition e. Obtain necessary Discovery

2 TOP TIPS FOR YOUR FIRST Prepare your witness!! DEPOSTION TEN • “With all due respect, I was drunk and high every time I did an 3. Prepare Your Witness(es) interview last year.” a. Meet with the witness as early in the case as possible to cement their version of the events b. Also meet with the witnesses closer to the deposition, so that they know what to expect c. Role playing is an excellent way to get a witness ready d. Remember that what you speak of to the client/witness will likely be covered by the attorney/client privilege, but any documents that you show them to prepare them or refresh their recollection probably would not be e. Remind the witness NOT to bring any of their own documents with them to the deposition to refer to during the testimony, as the opposing side will then be entitled to copies f. General advice to tell the witness

TOP TIPS FOR YOUR FIRST Social Media Will Get You Every Time TEN DEPOSTION 4. Research, Research, Research a. Do a social media search, (ie. Facebook, LinkedIn, Twitter, MySpace, Google) b. Look up your own witness c. Use Google Earth to obtain images of location involved d. Search for traditional news media articles on the internet (i.e. paper, journals, magazines (state and local)) e. Rules for utilizing social media for research

3 TOP TIPS FOR YOUR FIRST TOP TIPS FOR YOUR FIRST TEN DEPOSTION TEN DEPOSTION 5. Know the Rules of Evidence and the Ethical Rules Regarding Attorney Conduct at 6. Have Your Exhibits Ready a Deposition a. Prepare your exhibits the day before a. What are the privileges, what testimony is admissible and inadmissible, etc. at trial? b. Upon objection by a person entitled to assert the privilege, privileged matter shall not b. Know the order that you will use them be obtainable. The party seeking to assert the privilege has the burden of proving the applicability. The most common privileges are: c. Highlight or mark up your copy, so you know what questions to ask • attorney/client; • attorney work product; and d. Have extra copies ready to use for the witness, the court reporter • materials prepared for litigation. and opposing counsel c. You should know how to convert potentially inadmissible information to admissible evidence at trial, i.e. what do you need to shoehorn hearsay statement into admissible form of evidence (dying declaration, spontaneous utterance, statement against interest, etc.) d. See NYCRR 221

TOP TIPS FOR YOUR FIRST TOP TIPS FOR YOUR FIRST TEN DEPOSTION TEN DEPOSTION 7. Ease the Witness into the Testimony 8. Be an Active Listener a. Use the housekeeping details to get the witness to relax a. Use an outline instead of scripted questions b. Remind the witness that all answers must be verbal b. Be prepared to follow up on questions, even if the new line of c. Find out if the witness has taken any medication that would impair question is not on your outline his/her ability to tell the truth or to recall information d. Ask about illicit drug use within 24 hours of the deposition

4 TOP TIPS FOR YOUR FIRST Preserve the Record and Stand Up for TEN DEPOSTION Yourself 9. Preserve the Record & Stand Up for Yourself a. Assume that the deposition testimony will be read to a jury one day b. Make your questions clear and concise; do not use compound questions c. Ask to have questions read back by the court reporter d. Almost anything goes at a deposition; objections as to admissibility, relevance etc., should be reserved for the time of trial e. Do not allow yourself to be bullied by an older/more experienced

attorney Credit: LawComix.com

TIPS FOR YOUR FIRST TOP After the Deposition TEN DEPOSTION 10. Use Human Nature to Your Advantage Remember: Per CPLR 3116(a), “…if the witness fails to sign and return the People deposition within sixty days, it may be used as fully as though signed. a. Want to be liked and they want to please No changes to the transcript may be made by the witness more than b. Do not like an awkward silence sixty days after submission to the witness for execution.” c. People want to appear smart d. Respond to authority e. Get tired after house of questioning f. Can be combative

5 Closing Words of Wisdom DISCOVERY MOTIONS

• Know your file better than anyone else in the universe and read What is Discovery? through ALL medical records, you never know what might be buried in A procedure designed to allow disclosure of information between them plaintiffs and . • LISTEN to what the witness is saying Discovery was designed to prevent trial by ambush. • Have the judge’s phone number with you Examples of discovery: • Be prepared to question first Written questions (i.e. ), oral questioning (i.e. depositions) document production (i.e. Demand for Bill of Particulars, Notice for Discovery and Inspection, Notice to Produce and admission requests (Notice to Admit).

What governs Discovery? What if a party ignores a Discovery Demand?

• If a party fails to respond to or comply with any discovery demand, has adopted Civil Practice Law and Rules (C.P.L.R) which request, and/or notice, the party seeking discovery may move to contains the rules governing discovery. Specifically Article 31 has the compel compliance or a response pursuant to CPLR §3124.Aparty applicable rules and sections of discovery. may also seek alternatively to preclude the party from offering evidence at trial pursuant to CPLR §3124

§3124 Failure to Disclose; motion to compel disclosure • Priortodoingso,however,apartymustmakegood faith efforts to obtain the outstanding discovery and submit a “Good Faith” §3126 Penalties for refusal to comply with order or to disclose Affirmation with their motion.

6 “Good Faith” Affirmation: What constitutes “Good Faith”?

Section 202.7 of Part 202 of the Uniform Civil Rules for the Supreme Correspondences and telephone calls to the opposing party requesting Court and the County Court (22 NYCRR 202.7) states: compliance and/or a respond to outstanding discovery demand when the time to respond has elapsed.

“No motion shall be filed with the court unless there have been served and filed with the motion papers…with respect to a motion relating to ✶ Recently, the courts have found that one (1) correspondence to disclosure or to a bill of particulars, an affirmation that counsel has the opposing party was insufficient to show that a “good faith effort” conferred with counsel or the opposing party in a good faith effort to was made “to resolve the issues raised by the motion” pursuant to resolve the issues raised by the motion.” §202.7(c) (22 NYCRR). TIP: Send more than one (1) good faith correspondence to opposing counsel and include them as exhibits in motion

MOTION PAPERS What if a party objects to a Discovery Demand?

The motion papers should tell the court what discovery is being • If a party objects to a demand and the party seeking the discovery demanded, when the discovery demand was made, how much time does not agree with the objection, that party may move to compel has passed since the demand was made and what good faith efforts compliance or a response. CPLR §3124 were made to obtain the outstanding discovery (Good Faith • The motion papers should tell the court what discovery is being Affirmation). demanded and objected to, why the party is entitled to the discovery, when the discovery demand was made and how much time has The court can order a party to answer a discovery demand or on the passed since the demand was served. return date of the motion/application, the party will stipulate to • The court can order a party to respond to the disputed discovery item respond to the outstanding demand by a date certain. by a date certain if it finds a party is entitled to it.

7 What if a party ignores the court order and/or stipulation? CASE LAW

• If a party ignores a court order and/or so‐ordered stipulation, the The Court of in Kihl v. Pfeffer held“ifthecredibilityofcourt party seeking compliance with the Court Order/Stipulation may move orders and the integrity of our judicial system are to be maintain, a to strike the pursuant to CPLR §3126 and alternatively, to litigant cannot ignore court orders with impunity” (94 N.Y. 118, 123 preclude the party from offering evidence at trial and alternatively, to (1999) Compliance requires "a timely response and one that evinces a compel compliance pursuant to CPLR §3124. good‐faith effort to address the requests meaningfully" (Id. at 123) • The motion papers should tell the court what court order is not being The extreme and drastic sanction of striking a party’s is only complied with; the court’s directives regarding the discovery items justified where the moving party shows conclusively that the failure to sought including the date and/or time period to comply and how long disclose was willful, repeated, contumacious or due to bad faith. the party has been in non‐compliance. Bassett v. Bando Sangsa Co., 103 A.D.2d 728 (1st Dept 1984); Arts4All, st TIP: Include a “Good Faith” Affirmation with the motion. Ltd. V. Hancock, 5 A.D.3d 106 (1 Dept 2004)

TIPS Questions?

Given that the courts do not often strike a pleading, a party should seek an order with “conditional preclusion” language as follows: In the event that the [non‐complying party] fails to comply with this Order by [a date certain], the [non‐complying party] will be precluded from offering the evidence [i.e. testimony] at the time of trial To avoid having to bring yet another motion to essentially enforce the conditional preclusion order in the even the noncomplying party fails to comply with it, include the following: “This Order is self‐executing.”

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