Taking and Defending Effective Depositions by Colin E. Kaufman

Preparation for Taking and
Defending Depositions
Colin E. Kaufman
Adam Leitman Bailey, PC
120 Broadway, 17th Floor
New York, NY 10271
(212) 825-0365
cekaufman@alblawfirm.com
Lorman Education Services March 12, 2009

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

Conducting the Deposition of a
Non-Expert
Colin E. Kaufman
New York, NY 10271
(212) 825-0365

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. Kaufman
New York, NY 10271
(212) 825-0365

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

Taking and Defending Effective Depositions by Colin E. Kaufman

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