Home » Publications & Outlines » Kathleen Donelli, White Plains Divorce Lawyer, Taking & Defending Depositions - 4-24-02

Taking & Defending Depositions

WESTCHESTER WOMEN'S BAR ASSOCIATION

"NEW LAWYERS" COMMITTEE

DEPOSITION PRACTICE IN NEW YORK STATE COURT

Presented By: Lucille A. Fontana, Esq.

Clark, Gagliardi & Miller

99 Court Street

White Plains, NY 10601

Tel. No.: (914) 946-8900

and Kathleen Donelli, Esq.

McCarthy, Fingar, Donovan,

Drazen & Smith, L.L.P.

11 Martine Avenue

12th Floor

White Plains, NY 10606

Tel. No.: (914) 946-3700

I. ATTORNEY PREPARATION: TAKING AND DEFENDING THE DEPOSITION

A) Understanding the Elements of Your Case:

1. personal injury actions

2. matrimonial and commercial actions

B) Document Review

1. document production control lists and deposition exhibit lists

2. Bates-stamping and/or marking original documents as Exhibits

3. agreements on cost of copying and storing exhibits

4. identifying exhibits on the record for clarity during deposition; pre-trial notices to admit; and to authenticate at trial

C) Location of Deposition

1. County, State, Country

2. Court v. Attorney's Office

D) Noticing Deposition

1. Whom to invite to the Deposition

2. When to use audio tape, video tape, conference call

3. When to include document request with Notice

4. Non-Party Witness Subpoena, Subpoena Duces Tecum and statutory payments

5. When to get Subpoena ordered by Judge

6. Motions to Quash and for Contempt

E) Reviewing Cost of Taking Deposition With Client

1. prepayment by client or (if using the same reporter) opposing party

F) 1. Checklist

2. Written Questions and/or Outline

II. PREPARING THE PARTY TO BE DEPOSED

A) 1) Instructions

· written, verbal, audio-visual cassettes

· five easy answers: I don't understand the question. No (is a complete sentence). Yes. I don't remember. I don't know. 

· don't guess (think, feel, believe, suppose, probably, possibly, maybe, not really); but estimate when appropriate.

· don't volunteer: questioner’s job is to get information; deponent’s job is to answer the question ONLY.

· pause before answering questions to give attorney the opportunity to object as to form

· when to confer with attorney before the next question and when to use the restrooms

· don’t fight with or try to outsmart the interrogator

· don’t try to attempt to win the interrogator’s approval or friendship

2) review elements of the case with the deponent

B) Dress Rehearsal Prior to Deposition

· have another attorney conduct a mock deposition

· document review and identification

III. TAKING THE DEPOSITION OF THE ADVERSE PARTY

A) The Stenographer (Whom You Control) And The Oath

· the usual stipulations

S T I P U L A T I O N S:

IT IS HERBY STIPULATED AND AGREED, by and between the respective parties hereto, that all rights provided by the Civil Practice Law and Rules 3116 and 3117, including the right to object to any question, except as to form, or to move to strike any testimony of this examination are reserved, and, in addition, the failure to object to any question, shall not be a bar or waiver to make such motion at, and is reserved for, the trial.

IT IS FURTHER STIPULATED AND AGREED, that this examination may be signed and sworn to by the witness being examined before a Notary Public other than the Notary Public before whom this examination was begun, but the failure to do so, or to return the original of this examination to counsel, shall not be deemed a waiver of any rights.

IT IS FURTHER STIPULATED AND AGREED, that the filing of the original of this examination is waived and that a copy of the transcript shall be furnished to the attorney for the witness being examined, without charge therefor.

B) Off The Record Introduction When To Break

1. what to eat and/or drink; who pays for transcript, documents

Marking Exhibits:

§ Plaintiff gets numbers

§ Defendant gets letters

§ Nonparties add initials

C) On The Record Introduction:

"I represent _________, the _________ in the action entitled ___________. I will refer to this litigation during the deposition as "the action." I will ask you questions. Your attorney may only object as to form and you must answer the question unless you do not understand the question, you plead the 5th Amendment against self-incrimination or your attorney asserts the attorney-client privilege on your behalf. If you do not understand the question tell me and I will rephrase it. I want to remind you that you are under oath and must tell the truth or face the penalty of perjury.

D. The Three Faces of Eve: Finding your style

1. What did you charge to Victoria's Secret?

2. Lull into complacency

3. Bore into exhaustion

4. Charm into alliance, ie., witness becomes hostile towards defending

counsel who is delaying the completion of the deposition

5. Bully into submission

6. Confuse into contradictions

E. Obstructionist Opposing Counsel

1. mark transcript with paper clip to build record

2. the interrogator controls the record

3. when the record is ripe, discontinue the deposition and/or contact the

court

F. Evasive Deponent

1) bigger than a bread box

2) lead into testifying to the incredible and/or ridiculous: When witness does not remember if his closely held corporation paid his parents

· when was the last time you saw your mother at the office

· what did she say to you

· how many times have you seen your mother at your office this week; this month; this year; in the last five years

· who signs payroll checks

· who else has authority to sign for the corporation

· who are the officers and directors

3) leaving space in record for witness to supply additional information

4) calling for the production of additional documents

5) Persevere: then what happened to the balance of the bank account

shown on Exhibit __ (went into Mother’s kitchen cabinet).

6) Close doors: 

· Interrogatories;

· Document Requests and Production

· Any other documents supporting your contention that the marital residence is separate property?

· Do you remember anything else?

· Did you see anything or anyone else?

G. When to surprise, criticize, compliment, sympathize, scare, posture, threaten, plead, cajole, promise

H. Protecting the Record

I. When to break; end for the day; end the deposition; reserve right to continue deposition, based upon your review of additional documents to be produced

J. Follow-up requests for additional documents and/or information with a letter to counsel

IV. DEFENDING AT THE PARTY'S DEPOSITION

1. Short Pre-deposition meeting to review, update and caution:

a) documents reviewed in preparation of the deposition

must be given to opposing counsel

b) conversations about litigation must be disclosed to opposing counsel

if not privileged

2. How to Make an Objection

3. When to Give Directions Not To Answer

4. Conferring with Client while question is pending

5. Taking a break to speak to client or to opposing counsel

6. When to ask your own client questions to clarify prior answers

7. Silence equates with successful and thorough preparation eg., When did you and Mr. Hagstrom meet Ms Donelli? Who is Ms. Donelli and Mr. Hagstrom?

V. NON-PARTY DEPOSITIONS

1. When to depose the:

a) eye witness

b) expert witness

c) hostile witness (the paramour)

d) friendly witness

e) treating health providers

VI. REVIEWING THE DEPOSITION TRANSCRIPT

a) serving on deponent's attorney

b) correcting client's deposition transcript

c) preserving deposition exhibits for trial

VII. USING DEPOSITION TESTIMONY AT TRIAL

a) party's deposition testimony may be read at trial

b) using to impeach non-party

VIII. RELEVANT STATUTES AND CASE LAW

Contact Me

If you think you may require the assistance of Kathleen Donelli in any matter, email (kdonelli@mccarthyfingar.com) or phone her (914-385-1010) with any question you may have.