taking and defending effective depositions by colin e. kaufman
TRANSCRIPT
Preparation for Taking and Defending Depositions
Colin E. KaufmanAdam Leitman Bailey, PC120 Broadway, 17th Floor
New York, NY 10271(212) 825-0365
Lorman Education Services March 12, 2009
Preparation wins cases
• Preparation wins cases• Preparation wins cases• Preparation wins cases• Preparation wins cases• Preparation wins cases• Preparation wins cases• Preparation wins cases
Paper the file
• Deposition Prep starts when the case starts• Use– Judicial Discovery– Non-Judicial “Discovery”• Internet• Interviews
• Know what you’re looking for (PJI)• But don’t wear blinders
Judicial Discovery
• Serve 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 Demands
• My 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
The PC
• Not a formality• Have your demands served beforehand• Remember “otherwise precluded” and
“otherwise waived”• Try for a stipulation• Afterwards, do what you are supposed to do
Non-Judicial Discovery
• Internet• Criminal History• Interviews• Private Investigator (?)• Go to the place
Background Research
Preparation wins cases
• Preparation wins cases• Preparation wins cases• Preparation wins cases• Preparation wins cases• Preparation wins cases• Preparation wins cases• Preparation wins cases
Conducting the Deposition of a Non-Expert
Colin E. KaufmanAdam Leitman Bailey, PC120 Broadway, 17th Floor
New York, NY 10271(212) 825-0365
Lorman Education Services March 12, 2009
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
Statutory Purposes
– CPLR § 3101(a) …full disclosure of all matter material and necessary in the prosecution or defense of an action…
– CPLR § 3117 • Impeachment• Use on motion• Evidence in chief against an adverse party• Preservation (death distance infirmity imprisonment)• Medical testimony in lieu of live witness
Tactical Purposes
– Evaluate your• Case• Witness
– Evaluate• Your opponent’s case & witness(es)
– Use as a negotiation tool– Push some buttons – see what happens– Gather witness and document information
What it is not for
• Discovery in the sense of– Finding out about your case– Finding out about the other side’s witness
Preparation
• Have 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
Adjournments
• What 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)
Introduction
• Mine:– 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 matter surrounding 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 it, 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?
Form of Questions
• Try 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?
Form of Questions (2)
• Can lead (CPLR § 3113(c))• One new fact per question• Avoid 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”
When, Where, Why, How
• When– 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
• Why - next two slides– How – balance of the hour
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 anticipated)• 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)
Defending the Client’s Deposition
Colin E. KaufmanAdam Leitman Bailey, PC120 Broadway, 17th Floor
New York, NY 10271(212) 825-0365
Lorman Education Services March 12, 2009
Objections – making them
• From 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 can object to form only 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
Objections – if you are questioning
• Listen – 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”
Coda
• We 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