Honing Your Deposition Skills 2014 Practice Pointers

Transcription

1 NEW YORK ILLINOIS NEW JERSEY PENNSYLVANIA CONNECTICUT UNITED KINGDOM Honing Your Deposition Skills 2014 Practice Pointers Paul S. Devine Theodore W. Ucinski Robert W. Berbenich Introduction The use of oral questions presented to a witness sworn to tell the truth has been employed for centuries by various cultures in differing forms. This procedure eventually evolved into what we know today as a deposition. 1

2 How to preserve your record for a motion 1. [I]n an examination before trial unless a question is clearly violative of the witness s constitutional rights, or of some privilege recognized in law, or is palpably irrelevant, questions should be freely permitted and answered, since all objections other than as to form are preserved for the trial and may be raised at that time. Freedco Products, Inc. v. N.Y. Tel. Co., 47 A.D.2d 654, 655, 366 N.Y.S.2d 401, 402 (2d Dep t 1975). See also CPLR 3115(d); Johnson v. N.Y.C. Health & Hospitals Corp., 49 A.D.2d 234, 374 N.Y.S.2d 343 (2d Dep t 1975). 2. Practical Application: A court reporter may only go off the record if all parties consent. If you refuse to go off the record, then everything that is said will be included in the transcript. How to handle a hostile witness 1. Keep asking questions until you get an answer that is appropriate. Often times, it is not what you ask but how you ask it. 2. Be very polite on the record, allow the witness to appear foolish with his or her aggression. Never raise your voice. 3. Use your intellect and common sense. Do not allow a witness to outwit you with their answers. 2

3 How to handle hostile defense counsel To deal with the issue of hostile defense counsel, and other problems that arise at depositions, the Office of Court Administration adopted three rules that went into effect on October 1, 2006, the Uniform Rules for the Conduct of Depositions. See Siegel, David D., New York Practice, Fifth Ed., West Pub., 2011, pg Attacking I don t know or I don t remember when you know they do 1. Refresh their recollection. 2. Use documentary evidence. 3

4 Deposing the corporate party New York does not have a Corporate Designee rule like in Federal Practice or our neighboring state of New Jersey. As a result, we are often times presented with a witness who is an officer of the corporation with little or no knowledge of the facts and circumstances surrounding the litigation. Under these circumstances, an attorney needs to seek a second deposition of a person with knowledge. Deposing the non-party witness [I]n order to depose a nonparty witness, relevancy is not the only showing needed; the additional requirements of paragraph 3 or 4 of CPLR 3101(a) must be met. Since only the court can ultimately determine whether they have been met, the question arises whether the deposing of a witness requires a preliminary order in which the court would make the determination, or may be allowed to proceed by mere stipulation or notice. The latter is the practice. Siegel, David D., New York Practice, Fifth Ed., West Pub., 2011, pg

5 Dos and Don ts of deposing the non- English speaking witness 1. When the party being deposed does not speak English, the noticing party must provide and pay for a translation of the questions and answers pursuant to CPLR The trial court may shift the burden of paying an interpreter's cost from the examining party to the party examined, even though the statute provides that if the witness does not understand English, the examining party must provide the translation. 3. Where the court settles questions, it may settle them in the foreign language and in English, and it may use the services of one or more experts, whose compensation is required to be paid by the party seeking the examination, who may tax them as a disbursement. 4. A party's failure to object to the deposition proceeding in the absence of an interpreter operates as a waiver of his or her claim that he or she did not understand the questions he or she was asked. When to call the deposition off An important consideration is always consider the implication of calling off a deposition as you may risk the possibility of waiving your right to depose that party. 5

6 What you need to make a good record 1. When can a deposition be read in at trial? A deposition may be used for any purpose by an adverse party If the party against whom it will be used was properly noticed 2. Why is a good record so important? Wojas v. Fifth Avenue Coach Corp 23 A.D.2d 685, 257 N.Y.S.2d 404: Defendant Williams was unable to testify at trial due to medically determined illness. His attorney was able to read his testimony at the time of trial pursuant to CPLR The art of boxing in your witness 1. The Funnel Approach 2. Reductio Ad Absurdum 6

7 Getting a ruling on preserved objections at the time of trial White v. Martins, 100 A.D.2d 805, 806, 474 N.Y.S.2d 733, 735 (1st Dep't 1984) Objectant is entitled to rulings based upon the particular questions asked and the objections thereto; these rulings may be either on the merits of the objections, or on consideration of the particular questions and objections, that the defendant answer the questions reserving the objections for the trial court on the ground that there will be no substantial prejudice in answering the questions subject to such objections. When you can re-depose a witness 1. An allegation of new or further injuries or damages should afford an attorney the opportunity to re-depose a witness. 2. If an attorney feels that he or she is entitled to a further deposition, they may make a motion to compel disclosure pursuant to CPLR 3124 seeking that further deposition 7

8 Amendment to CPCR 3113 (c) Non- party deponent s counsel may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party Excerpts from actual court cases Lawyer: Did you blow your horn or anything? Witness: After the accident? Lawyer: Before the accident. Witness: Sure, I played for ten years. I even went to school for it. Lawyer: Doctor, how many autopsies have you performed on dead people? Witness: All my autopsies are performed on dead people. Lawyer: Do you recall the time that you examined the body? Witness: The autopsy started around 8:30 p.m. Lawyer: And Mr. Johnson was dead at the time? Witness: No, he was sitting on the table wondering why I was doing an autopsy. 8

9 Lawyer: You say the stairs went down to the basement? Witness: Yes. Lawyer: And these stairs, did they go up also? Lawyer: Now doctor, isn't it true that when a person dies in his sleep, he doesn't know about it until the next morning? Lawyer: Do you know if your daughter has ever been involved in the voodoo or occult? Witness: We both do. Lawyer: Voodoo? Witness: Yes we do. Lawyer: You do? Witness: Yes, voodoo. Lawyer: Sir why didn t you tell the Police how the incident occurred? Witness: Street Policy Lawyer: What do you believe street policy requires regarding an incident like this? Witness: Street Policy. Snitches get stitches where we from. People die for less than this. 9