depositions rules tactics strategies - amazon s3 · this seminar program will first review the law...

DEPOSITIONS RULES, TACTICS & STRATEGIES

Materials by: Glenn Verchick, Esq.

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Copyright © Glenn Verchick, Esq., 2008. All rights reserved.

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TABLE OF CONTENTS Introduction/Seminar Goals ....................................................................................5-6 THE RULES - Examinations Before Trial – CPLR, NYCRR and Significant Case Law ............................................................................................................................ 6-12 TACTICS – Preparation for Questioning a Witness at an Examination Before Trial .................................................................................................................................. 13-14 TACTICS - Preparing Your Witness for Questioning at an Examination Before Trial .................................................................................................................................. 14-21 STRATEGY – Effective Strategies for Taking and Defending An Examination Before Trial............................................................................................................. 22-24 APPENDIX A – Forms – Subpoena for Non-Party Deposition; Notice for Non-Party Deposition.................................................................................................... 25-27


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Glenn Verchick Werbel, Werbel & Verchick LLP 1465 Rockaway Parkway Brooklyn, New York 11236 718-485-0400 (Fax) 718-272-3242 [email protected] DEPOSITIONS – RULES, TACTICS AND STRATEGIES 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 professional baseball team would treat a game. That is, it cannot be successfully conducted without extensive preparation, a


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through knowledge of the applicable rules, formulation of a strategy and, ultimately, execution of a game plan. This seminar is designed to help the litigator take the deposition discovery device, what is on its face a simple question and answer session around a table, and use it to help 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 aptly named 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. 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 the caselaw relating thereto. 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). 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, than you must serve that person with a subpoena (unless, for some reason, they agree to appear voluntarily). You must serve the subpoena at least twenty (20) days before the EBT and also, 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. Attached hereto at APPENDIX B is a sample form of a subpoena for a non-party EBT and a sample form of notice for non-party EBT.


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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 nonparty, 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. 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 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 (SC BX CTY 2002). 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. – This section allows for depositions on written question upon stipulation of the parties or where the testimony is to be taken outside the state. When outside the State, a commission or letters rogatory may be issued by the Court. 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); and, Mack 81 AD2d 761. An exception to this rule is if plaintiff can demonstrate a substantial hardship. See, Swiss Bank Corp., v. Geecee Exportaciones Ltd., 260 AD2d 254, 688 NYS2d 80 (1st Dept 1996). Also see, Lee v. Corona, 2003 WL 1873748 (SC NY Cty., App. Term)


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Plaintiff stuck in Malaysia can be deposed on written questions only but plaintiff is made to pay the cost of the translation. What if, for example, the plaintiff lives in London, England? This problem was dealt with in Radowski v. Irmisch, 46 AD2d 826, 361 NYS2d 68 (3rd Dept 1974). 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 courthouse 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.”


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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.” 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. This section does not address who is to pay for the court reporter’s charges relating to the attorney’s cross of his own client, but it does seem reasonable that if you ask your own client questions at a deposition and such EBT was requested by and conducted by the adversary you can be compelled to pay a proportionate share of the costs. 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. 22 NYCRR Section 202.15 Videotape recording of civil depositions. – This rule 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. 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.


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The “New Rules”: CPLR 3115 must be read in conjunction with 22 NYCRR Part 221 (added 10/1/06). This relatively new court rule was intended to change the way depositions in New York were 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. There is no rule, as to when an attorney can direct a witness not to answer, that can be applied with complete objectivity; although 22 NYCRR 221.2 comes pretty close. 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. 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 (2nd Dept 1984) and David Paul Horowitz’s excellent discussion of all the aforementioned statutes and cases in the “Practice insights” following CPLR 3115 in the 2008 Lexus Nexis Civil Practice Annual, reproduced and attached hereto with the permission of David Paul Horowitz, one of the Academy Deans. 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), a $1,500.00 sanction was assessed for refusing to answer a question at a deposition. One recent trial court case discussed the new Court Rules for depositions, See, Pendleton v. City of New York, NYLJ 5/15/08. p. 28, col. 3 & 4, p. 29 col. 1 & 2, (SC, KINGS, J. MILLER, 4/14/08). 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 or the Conduct of Depositions.” The questions that were impermissibly blocked related to prior complaints made against the police officer defendant. 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. CLPR 3116(b) – When at the beginning of an EBT the attorneys agree to, “the usual stips” one thing that refers to is stipulating to waiving the requirement that the officer (court reporter) file the deposition transcript with the clerk of the Court where the action is pending.


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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 by you 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. 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. 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). 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). Sanctions for “unjustified conduct”: 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 witness. The Panel found that CPLR 3126 authorized sanctions against a party for unjustified conduct at a deposition. Multiple EBT’s of the plaintiff: 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


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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). 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, 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).” 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. 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.


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Preparation for Questioning a Witness at an Examination Before trial

• READ THE FILE; determine if anything is missing from the file – if so, 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 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 leave the deposition with? – 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, if the plaintiff was a driver. You have a comparative negligence claim and you will want to establish that the plaintiff 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. Understand all jargon, technical terms and special knowledge associated with the case. This may require extensive independent study and a consultation with an expert.

• 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.

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

• Prepare to make COLLATERAL ATTACKS. Do background searches 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 and shuffling papers and searching for documents does not disrupt the flow of your questioning.

• DETAILS, DETAILS. . . Don’t overlook details – Remember to order the court reporter, translator, videographer, 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 them 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. In the pre deposition meeting, I stress the need to provide truthful, accurate answers to all questions posed. I start to prepare for the deposition of the plaintiff the day I am retained so I 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. I try and educate the client as to the nature of the deposition proceeding so they will not only know what type of questions will be asked but will also understand why certain questions are asked. In order to effectively prepare your client for their 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


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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 the friendly defendant attorney. Indeed, a good defense attorney will try to make the plaintiff their friend, in order to encourage the free flow of relevant information. The client should be aware that they 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 and therefore the client’s knowledge that what they say in 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. The client must first understand that the pre-deposition conference is privileged and therefore an opportune time to air out their thoughts, concerns and positions on the case. Communications from the client to the attorney are privileged and frankness and honesty from the client should prevail and be encouraged. While the client’s testimony must be 100% truthful, it can be, with the attorney’s assistance, presented in a light most favorable to the client’s claim. NOTE: Accept responsibility for how your client looks, acts and how they present their version of events at the EBT. The ability to present your client and their testimony in a favorable light is a notable difference between the average lawyer and the successful plaintiff’s personal injury 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 their case. The client should understand that their examination before trial testimony is being taken under oath and that a knowingly false statement could subject them to prosecution for perjury. They should understand that their testimony will be recorded and, pursuant to CPLR 3117, their 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,


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CPLR 3116 and Danyluk v. Gitlin, 221 NYS2d 405 (SC NASS CTY 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 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. 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 in their case with the hope of enhancing his or her position in the litigation. You should be prepared to respond to and deal with such an encounter. This willingness may be expressed during the pre-deposition meeting when what is to be said by the client is first discussed in detail. A client’s communication to the attorney is privileged pursuant to CPLR 4503(a). However, if a client intends to give false testimony under oath regarding a material fact, the lawyer finds himself on the horns of a dilemma because he cannot reveal a confidence or secret of a client and at the same time he cannot use false testimony or participate in the creation or preservation of false testimony. See, People v. Andrades, 4 NY3d 355, 795 NYS2d 497 (2005) For example, in a automobile negligence action, evidence of a defendant’s violation of a section of NYS’s VTL is very helpful in establishing a prima facie case of negligence against that defendant. In such a case, for example, if it is claimed that the defendant passed a stop sign without stopping, thereby causing the accident, it is important what the plaintiff, an injured victim, observed concerning the operation and control of the defendant’s vehicle. Let’s assume in such a case that your client, the injured plaintiff, during the pre-deposition meeting, intends to testify that they saw one of the defendants pass the stop sign at a high rate of speed without stopping. Let us further assume that this is contrary to the version of the occurrence given by your client at the initial


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meeting when you were retained and additionally contradicts other eyewitness and police report accounts. In such a case, assuming the attorney believes that the intended testimony that the defendant did not stop and was traveling at a high rate of speed is false, the attorney must adhere to certain ethical guidelines in addressing this perceived problem and counsel the client accordingly. The first step is to dissuade the client from offering the false testimony (often referred to as “remonstration”). If the client capitulates then such an intention to commit perjury is protected by the attorney client privilege and if never acted upon dies a rightful death without any ramification. This is the easy and preferred scenario. However, if the client does not concur with the attorney’s suggestion, a more drastic response is called for. Especially since the attorney could find himself subject to sanctions for frivolous litigation (See, 130 NYCRR Section 130-1.1, 1.2). If the client offers the perjured testimony during the questioning under oath, the attorney must then consider one of the following courses of action:

• Settle the case before trial without using the false testimony in any way to effect the settlement;

• Convince the client to withdraw or correct the perjured testimony when the transcript is presented for signature;

• Move to be relieved; • Try the case without use of, or reference to, or a repeat of the perjured testimony

(presumably this can only be accomplished with the client’s cooperation). The case law is somewhat sparse concerning perjured testimony in a civil case, and therefore a concrete direct as to how to deal with it does not exist; however, what is clear is that you cannot use, ratify, verify or put forth to a court the false testimony.

Some excellent discussions of this topic can be found at: Connors, Patrick F. and Gleason, Thomas F., Representing a Recalcitrant Client Who Has Lied During Disclosure, 234 (no. 55) New York Law Journal 3 (September 19, 2005) ; Connors, Patrick F., Confronting Dilemma on Potential Client Perjury, 234 (no. 50) New York Law Journal (Special Section: Court of Appeals the Year in Review) S9 (September 12, 2005)); People v. Andrades, 4 NY3d 355, 795 NYS2d 497 (2005); NYSBA Comm. on Prof’l Ethics, Formal Op. 781 (Dec. 8, 2004).

In sum, perjured testimony creates a losing proposition for everyone and every effort should be made during the EBT prep meeting to dissuade the client from offering such testimony. 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


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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 lose time from work as opposed to a client who, because of faulty memory, testifies that they never injured their 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).


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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 the judiciaries’ recent willingness to, “let them have 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 in advance of the day of their testimony. “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 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. 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 and 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


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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 witnesses’ memory before testifying. The privilege was also held inapplicable to a tape recorded statement that a witness listened to prior to testifying at a deposition, 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, Stern v. Aetna 159 AD2d 1013, 552 NYS2d 730 (4th Dept 1990), a 23 page corporate memo was ordered to be exchanged because it was used to refresh deponent’s memory preceding the EBT, E.R. Carpenter v. ABC Carpet, 98 Misc2d 1091, 415 NYS2d 351 (Civ. Ct. NY Cty 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). The lesson to be learned is that a client may keep his or her own notes or diary concerning the lawsuit in question. They should be counseled not to review same in preparation for their testimony, unless they are not adverse to exchanging the contents of same. Immigaration Status: 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, 9/24/04 N.Y.L.J. 18, (col. 1) )J. Acosta, SC NY CTY). However, you may not, See, Bakhtadle v. Riddle, 4/28/05 N.Y.L.J. 22, (col. 3) J. Giacobbe, SC RICH CTY). 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


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NYS2d 329 (3rd Dept 2006); Lobdell v South Buffalo Ry., 159 AD2d 958, 552 NYS2d 782 (4th Dept 1990). Prior inconsistent statements: Prior inconsistent statements can be a mine field for the unprepared witness. While there is some authority that an adverse attorney will not be allowed to examine a plaintiff on the issue of an inconsistent statement in a hospital record, it seems that the better course would be to prepare the witness for such questions, and assuming the plaintiff disagrees with the statement, that the plaintiff offer an explanation or opinion as to the veracity of the statement they purport not to have made. See, Cusomano v. Pitzer Trucking Co., 29 Misc2d 919, 209 NYS2d 715 (SC KINGS CTY 1961,), Lv. denied 13 AD2d 828, 217 NYS2d 560(2nd Dept 1061). 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 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 their injuries and you need to know what was said, or rather, what was recorded as having been said by your client to persons making entries in theses 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. • 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. • And, finally, even though the irge may be hard to resist, spouses who are co-plaintiffs

should be quiet and not make faces when their spouse is testifying.


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STRATEGY – Effective Strategies For Taking And Defending 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. • “BOX THEM IN” - Narrow your adversaries position. Eliminate escape hatches and other

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 a witnesses’ “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 don’t completely understand a written statement (e.g. – in an accident report or medical record)you must explore the issue 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 your have come to expect from yourself. Your adversary may want to try and make you feel foolish so you will give up.

• MIX IT UP – Throw the off-speed pitch. Witnesses prefer that you proceed to question in chronological order and are prepared to answer the pedigree “softball” questions at the beginning. 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.


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• 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.

Defending your client STRATEGIES AND TACTICS: 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 own 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. Be alert as to the physical and/or mental condition of your client. You may want to skip lunch, but remember that it is more mentally draining for the witness to sit through a deposition than it is for the attorney who is battle tested. If you see that your client is fading, call for a short break so they can refresh themselves with a 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.


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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). Understand the law concerning what you can and cannot object to and you will be able to project confidence in representing your client. 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, discourteous boar. Your job is to ensure that your client does not stoop to their level and come across as a person who will not be liked by a jury. One of the primary objectives of your client’s EBT is for the adversary to leave with the impression that your client is a great witness and that this same impression will be mad upon the jury at trial.


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