2. 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
3. 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
7. 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)
9. 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
10. Structure of the Deposition
• Many
• Choose one
• Examples
• Chronological
• Topical
• Columbo
• Controlled random
The witness doesn’t need to know where you’re going – you do
11. Form of Questions (2)
• Can lead an adverse party (CPLR § 3113(c))
• One new fact per question
• Avoid negatives and particularly 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”
12. 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?
13. 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
14. 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
16. 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 subject matter of the litigation
and the damages that you have alleged. Do you understand?
17. 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?
18. 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 is
when 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.
19. 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
20. 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
21. 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?
22. 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 generally only can object to form* 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
*(or privilege, court order or plainly improper and would, if answered, cause significant
prejudice to any person § 221.2)
23. 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”
24. 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)
25. 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 anticip
ated)
Your demeanor should normally be pleasant and collegial
• BUT may vary if needed
• Only if planned
26. 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)
27. 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
![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](data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7)