Deposition preparation

New York State Bar Association 1 1/29/09
Colin E. Kaufman
Adam Leitman Bailey, PC
120 Broadway, 17th
Floor
New York, NY 10271
212-825-0365 x 175
cekaufman@alblawfirm.com
© Colin E. Kaufman
QUESTIONS ANYONE?
DEPOSITION PREPARATION
Trial is where the fun is; depositions are where the work gets done
Deposition comes near the end (unless it rekindles discovery) – it should not be “discovery” in
the sense of finding out new things - you should know what the case is about well before
depositions
I) Paper in the file
(a) You should have at least the following
1. Judicially obtained:
i. All the records dealing with the incident or course of events,
aftermath & damages
ii. Photos
iii. Recordings
iv. Tangible items (e.g. exemplars of equipment)
v. Expert Information (in federal – reports)
vi. Bill of Particulars
vii. Responses to Interrogatories
2. Extra-Judicial:
i. Background on the witness

ii. Interviews of those who know the witness
iii. Interview of the non-party witness
iv. Criminal record (where appropriate)
v. Time line
II) USE JUDICIAL DISCOVERY
i) serve your demands immediately and as a matter of course
a) depending on your practice, you should have one or more sets of formatted demands
b) don’t send out unreviewed boilerplate
c) use Interrogatories once you know where the case is going (except PI – generally
cannot use Interrogatories and Bill of Particulars)
d) don’t delegate paper discovery to a paralegal
ii) Follow up
a) In state Court ask for a PC (unless they are automatically calendared – depends on the
county)
(1) remember the phrases “otherwise precluded” and “otherwise waived”
(2) ask for everything you can think of, as well as responses to previously served
discovery demands which have not been responded to
(3) have your adversary sign “so stipulated”
b) In federal court timely confer with adversary; provide mandatory discovery timely
c) If you don’t receive your responses timely, send a letter (then call), send another letter
(then call), then move to compel or strike

III) TALK TO PEOPLE
i) Talk to your client at length
a) Find out
(1) the facts of the case from her perspective
(2) what she believes the other side will say
b) Documents
(1) Find out
(a) the documents the client has
(b) the documents she believes someone else has
(c) documents filed with any governmental/private entity
c) witnesses
(1) who can support your claim
(2) who may be called by the other side
(3) potential experts who have looked at the situation
d) history
(1) what these parties have done before
(2) what discussions they have had to resolve the case
e) prior litigation history
(1) client
(2) witnesses
(3) adverse parties

ii) talk to witnesses
a) for content
b) to size them up
IV)Talk with the other side – but listen - don’t pontificate
i) Goals
a) Find out what the other side contends
b) Find out what the other side can prove
c) Find out what the other side thinks of your case
ii) Don’t argue your case
V) Setting Deposition Goals
(a) There has to be a reason to be there
Learning what the case is about ought not to be one
(b) Purposes – taking depositions is neither a sport, nor a goal in itself
1. Summary judgment
2. Admissions (trial and motion)
3. Locking in & limiting
4. Seeking other witnesses and records
5. Authenticating exhibits
6. Showing the strength of your case
7. Evaluating the witness
i. Poke the ‘gator, see what happens

(ii) Remember damages, counterclaims, crossclaims, statutory & common law
elements, conditions precedent
1. For plaintiff taking defendant – admissions
e.g.
i. Notice
ii. Execution of contract
iii. Negligence
iv. Failure to comply with contract
2. For defendant – support for your case, weakness in hers
i. Look for contributory acts
ii. Indicia of misrepresentation
iii. Puffery
iv. Don’t forget your counterclaim
(c) Game Plan
1. Never just start asking questions
2. Know where you are starting and where you want to go
(d) What does PJI say?
1. Know the elements of your c/a or defense
2. Structure around each one
(e) Get everything you can- you’re never coming back (probably)
i. Be complete
ii. It’s over when it’s over (except federal)

(f) Video? (Must be noticed)
1. If the witness is a weasel, it really shows
2. Always:
a. on death’s door and helpful
b. taken for trial (e.g. treating physicians)
c. out of the jurisdiction and not liable to come in
voluntarily and helpful
3. Downside:
i. You can’t be rough (usually)
ii. More expensive
VI)READ THE PAPERS
i) then reread them, take notes, follow up
VII) USE THE INTERNET
i) Search engines
e.g. Google http://www.google.com (by far the most popular and usually the most
useful), Yahoo http://www.yahoo.com/, http://www.ask.com/ , Windows Live
http://www.live.com/ , Lycos http://lycos.com/ , Clusty http://clusty.com/ (for more, see
http://searchenginewatch.com/), Browsys (formerly Intelways) aggregates search
engines: http://www.browsys.com/powersearch/
ii) Meta-search
e.g. Dogpile http://www.dogpile.com/ , Webcrawler http://www.webcrawler.com/ ,
metacrawler http://www.metacrawler.com/ , surfwax http://www.surfwax.com/index.html
, search.com http://www.search.com/

iii) General “drill-down” databases a/k/a directories
a) E.g. About.com http://about.com/, Yahoo Directory http://dir.yahoo.com/, The Open
Directory Project http://dmoz.org/
iv) Specific topical databases (many not indexed by spiderbots from the search engines)
a) Great new article on deep web research by Marcus Zillman at
http://www.llrx.com/features/deepweb2009.htm
Examples of databases you may need which are not indexed on general search
engines
b) New York State Corporate Listings
http://appsext5.dos.state.ny.us/corp_public/corpsearch.entity_search_entry ,
c) NYS Professional Licenses http://www.op.nysed.gov/opsearches.htm ,
d) New York City Administrative Decisions http://www.citylaw.org/cityadmin.php
v) Using Search Engines
a) Search strategy
(1) Where do you want to end up
(a) Searching for general information about an area/topic/person
(b) searching for specific information
(c) seeking to confirm
b) What particular search areas do you want to query
(a) General v. specific
c) Query language(s)
(a) Go to “Help”
(b) Always use “Advanced Search” until you are familiar with the search engine
d) Refining or expanding your query
(a) Add or subtract terms
(b) Alternate spellings
(c) Other search engines
(d) Specialized searches
vi) Maximizing internet searches,
a) Query Construction
(1) structure
(2) choice of words
(3) stemming
(4) quotes
b) Pay attention to the supported grammar of the engines
(1) operators
(2) advanced v basic search

vii)General Search Tools
(1) Zaba Search (free + purchase) http://www.zabasearch.com/
(2) MerlinData (subscription) http://www.merlindata.com/
(3) PeopleFinders (free + purchase) http://www.peoplefinders.com/
(4) US Search (free + purchase) http://www.ussearch.com/consumer/index.jsp
(5) KnowX (purchase) http://www.knowx.com/
(6) Date of birth (not all and not always easy to determine by name):
1. http://www.birthdatabase.com/ and
http://www.stevemorse.org/birthday/birthday2.html
(7) Reverse directories – if you have an address or telephone number
(a) Langenberg.com http://www.langenberg.com/
(b) Skiptools http://www.skiptools.com/
(c) Infospace http://www.infospace.com/home/white-pages/reverse-phone and
http://www.infospace.com/home/white-pages/reverse-address
(d) Netscape http://wp.netscape.com/netcenter/whitereverse.html?cp=tec_1b
(e) Infobel http://www.infobel.com/usa/wp/revsearch/ and
http://www.infobel.com/usa/wp/addsearch/
(8) Blog searches: http://blogsearch.google.com/blogsearch/advanced_blog_search;
http://www.ask.com/?tool=bls;
http://search.blogger.com/advanced_blog_search?ui=blg; others at
http://dmoz.org/Computers/Internet/On_the_Web/Weblogs/Search_Engines/
viii) Researching a Person
a) Always do one or more general searches
b) Legal searches:
(1) Westlaw http://web2.westlaw.com/ , Lexis http://www.lexis.com/, Loislaw
http://www.loislaw.com/,
(2) WebCivil Supreme (formerly FCAS)
http://iapps.courts.state.ny.us/webcivil/FCASmain,
(a) Full-text search of NY Supreme cases
http://decisions.courts.state.ny.us/search/query3.asp
(3) NY County SCROLL http://iapps.courts.state.ny.us/iscroll/jcaptcha,
(4) e-law http://www.e-law.com//Login.asp,
(5) Federal PACER https://pacer.login.uscourts.gov/cgi-bin/login.pl, ,
c) Public records directories:
(1) Search Systems http://www.searchsystems.net/
(2) BRB Publications http://www.brbpub.com/pubrecsites.asp
(3) PublicRecordFinder.com http://www.publicrecordfinder.com/
d) Department of Motor Vehicles http://www.nydmv.state.ny.us/
(1) Beware the federal Driver's Privacy Protection Act (DPPA)
(a) Text: http://www.nydmv.state.ny.us/forms/mv15dppa.pdf

(b) Civil & criminal penalties for violation
(2) Need MV-15GC – Authorization for Release of Personal Information plus
http://www.nydmv.state.ny.us/forms/mv15gc.pdf
(3) MV-15 – Request for Driving and/or Vehicle Record Information
http://www.nydmv.state.ny.us/forms/mv15.pdf
e) Social Security
(1) Usually unavailable
f) Voting Records
(1) NYC Board of Elections http://www.vote.nyc.ny.us/offices.html
(2) Check in all jurisdictions suspected to be a residence
g) Campaign contributions
(1) Opensecrets.org http://www.opensecrets.org/indivs/index.asp
(2) Political Moneyline http://www.tray.com/cgi-win/indexhtml.exe?MBF=NAME
(3) Campaignmoney.com http://www.campaignmoney.com/advanced.asp
(4) NYS Board of Elections
http://www.elections.state.ny.us/NYSBOE/finance/contribandexpend.htm
(5) Other State (reference articles) http://www.llrx.com/columns/roundup10.htm#ny
and http://www.llrx.com/columns/roundup25.htm
h) Criminal Records (spotty)
(1) Vinelink https://www.vinelink.com/vinelink/initMap.do
(2) OCA webcrims for pending cases
http://iapps.courts.state.ny.us/webcrim_attorney/Login
(3) Also NYC Dept of Corrections (current misdemeanants and pretrial detainees)
http://a072-web.nyc.gov/inmatelookup/
(4) NYS Dept of Corrections (current and formerly incarcerated felons)
http://nysdocslookup.docs.state.ny.us/kinqw00
(5) Federal Bureau of Prisons – (current federal prisoners)
http://www.bop.gov/iloc2/LocateInmate.jsp
(6) National county jail inmate search (by jurisdiction – very spotty)
http://www.ancestorhunt.com/county-jail-inmates-search.htm
(7) US DOJ sex Offender Registry
http://www.nsopw.gov/Core/OffenderSearchCriteria.aspx?AspxAutoDetectCooki
eSupport=1
(8) PACER (federal criminal defendants) https://pacer.login.uscourts.gov/cgi-
bin/login.pl?court_id=00idx
(9) OCA 62 county search for $55.00 http://www.nycourts.gov/apps/chrs/
i) Licensed professions – licensing authority, disciplinary authority

ix) Property Address
a) General
(1) Property Shark (free and subscription)
http://www.propertyshark.com/mason/Accounts/logon.html
(2) Real Estate Board of NY (subscription)
https://members.rebny.com/html/welcome.html
b) Other addresses for the premises
NYC Housing Preservation & Development
http://167.153.4.71/hpdonline/provide_address.aspx
x) Recorded Property Documents
a) In NYC: ACRIS (Automated City Register Information System)
http://a836-acris.nyc.gov/Scripts/Coverpage.dll/index
b) PropertyShark http://www.propertyshark.com/mason/Accounts/logon.html
xi) Determining Information About a Property
a) Owner
(1) HPD Registration http://167.153.4.71/hpdonline/provide_address.aspx
(2) Deed/filed leases ACRIS
(a) http://a836-acris.nyc.gov/Scripts/Coverpage.dll/index
(3) Who is paying taxes NYC Department of Finance
(a) http://webapps.nyc.gov:8084/CICS/fin1/find001I
b) Managing agent HPD Registration
c) Taxes
(1) Amount of taxes: NYC Department of Finance
(a) http://webapps.nyc.gov:8084/CICS/fin1/find001I
(b) PropertyShark http://www.propertyshark.com/mason/Accounts/logon.html
d) Certificate of Occupancy
(1) NYC Department of Buildings
(a) http://a810-bisweb.nyc.gov/bisweb/bsqpm01.jsp
e) Information on Neighborhood, city and street
(1) NYC Office of Operations “My Neighborhood Statistics”
http://gis.nyc.gov/ops/mmr/address.jsp?app=MMR
(2) Infoshare (extremely detailed census information) http://infoshare.org/
(3) Map/Graphical info http://www.myciti.org/make_a_map_citi2.html and/or
http://www.oasisnyc.net/OASISMap.htm
f) Ownership history and information to contact owner
g) Documents filed with County Clerk
(i) ACRIS http://a836-acris.nyc.gov/Scripts/Coverpage.dll/index
h) Past and Outstanding Violations
(1) Open Violations HPD Registration

(2) Department of Buildings, Building Information Services (BIS)
1. http://a810-bisweb.nyc.gov/bisweb/bispi00.jsp
VIII) Maps & photos
a) Pictures of Property
(1) Google Earth (free download at http://earth.google.com/ ) satellite, some aerial
change POV
(2) Windows Live (map, aerial, satellite change POV) http://local.live.com/
(3) A9 (maps, street level) http://maps.a9.com/
(4) Google Maps (map & satellite) http://maps.google.com/
(5) Yahoo Local Maps (Beta) (map & satellite)
http://maps.yahoo.com/beta/#maxp=search&q1=us
(6) Mapquest (maps) http://www.mapquest.com/
(7) MSN Maps http://mappoint.msn.com/
(8) Microsoft Terraserver (aerial, topographic) http://terraserver.microsoft.com/
(9) US Geological Survey Maps http://nmviewogc.cr.usgs.gov/viewer.htm
(a) Multiple overlays

IX) Preparing the client
a) Tell the witness the litanies they can expect and why (photos, business records, is
there anything which might refresh your recollection)
b) Give the client a general idea of the law governing the case and how their testimony
fits
c) Make sure the client is solid on the two or three key facts to which she must testify to
establish her prima facie case, defense or counterclaim
d) Different strokes for different folks
Business client
Injured negligence plaintiff
Negligence defendant
e) Document review – show the client?
(1) Pro – helps the client refresh her recollection and prepare for examination on the
document
(2) Con – everything shown to the witness becomes discoverable
(a) Includes otherwise confidential communications
(b) May show your litigation strategy by what was selected

X) The Ten Commandments:
(1) Tell the truth
(a) About everything – a single demonstrably false response can destroy
credibility at trial
(b) Tell the truth in the best way for our case
(c) If you have done something wrong, admit it – better here than being
forced into it at trial
(2) Listen to the question – answer that question - stop
(a) Did you recognize the person who answered the door?
(i) Just yes or no – if the questioner wants to know who you thought it
was, they will ask
(3) Don’t try to tell your whole story in one answer (or in any answer)
(a) You cannot win a case at deposition, you can lose it
(i) Your most truthful and heartfelt testimony will not persuade the
opposing party or the opposing lawyer
(ii) There is no judge, no jury
(4) If you don’t hear or don’t understand a question, say so
(a) Never start to answer a question until you know what you are being
asked
(b) Nobody is going to say you’re stupid for not understanding – it is the
job of the inquiring lawyer to ask a clear question, not yours to interpret
it

(5) Listen to the question – pause – think – answer
(a) Brief pauses don’t show in a transcript
(b) Make sure the end of the question has come
(c) The pause allows me (your lawyer) to object, if necessary
(d) The pause breaks the questioner’s rhythm
(e) Think about your answer before you speak – don’t work it out on the fly
(f) Try not to cut yourself off (e.g., if you are asked “Is that everything that
was said?”, your response, unless you are certain is “That is all I can
remember right now”)
(g) If the other lawyer is reading from something, ask to see it (Before I
answer, may I look at the contract of sale, please?)
(h) If the other lawyer shows you something such as a photo or document,
show it to me first, before you look at it
(i) If the other lawyer shows you a document, read the whole document
before you answer any questions about it (including “Do you recognize
Plaintiff’s 1 for identification?”)
(6) Don’t guess or speculate
(a) You can only get in trouble
(b) Your job as a witness is to tell what you know, not what you believe
(c) “I don’t know” or “I don’t remember” are appropriate answers, if true –
but don’t use them as a crutch
(d) As much as you can, confine yourself to what you and others did and
said

(e) Witnesses (except experts) generally testify as to what he or she
individually saw, heard, said, touched, smelled, tasted – that is, evidence
of the senses
(7) Make times, dates, distances estimates, unless you know for certain
(a) If you say it was nine feet and the adversary brings in an engineer who
measured it with a laser and it was twelve feet, you’re a liar over
something that ought not to have been a question
(b) Most people don’t walk around with a steel tape and a stopwatch, so “it
was about ten feet” or “I would estimate that it took ten seconds” is
consistent with our shared reality
(c) You should know the critical date: “the accident happened on
November 11th
. It was about ten in the morning”
(8) The adversary is always working – and he is not working for you
(a) The preliminary social conversation is for a purpose
(b) The opposing lawyer is not your friend and a deposition is not a chat
(c) He is not your enemy, but his job is to win his case by hurting yours
(9) Don’t try to outwit or anticipate the opposing lawyer
(a) We do this every day
(b) You cannot plan your testimony as well as we have planned our
questioning
(c) If you are thinking two questions ahead, you are not concentrating on
the question just asked

(10) DO NOT VOLUNTEER !!!
(a) If you remember nothing else – remember “Tell the truth” and “Don’t
volunteer”
(b) Don’t
(i) bring anything to the deposition
(ii) review anything other than what you and I have done together
(iii) agree to provide anything (I will agree, refuse or “take the
request under advisement” on your behalf)
(iv) take anything out of your pocket, briefcase, brown paper bag
unless you and I have discussed it beforehand
(c) When you volunteer, you open up whole new areas of examination
(d) You know things that the questioner might never ask
(e) Make him do his job

Colin E. Kaufman
120 Broadway, 17th
Floor
New York, NY 10271
212-825-0365 x 175
© Colin E. Kaufman
Conducting the Deposition of a Non-Expert
The most common depositions any lawyer conducts are those of non-expert witnesses, including
plaintiffs, defendants and non-parties. Certain common elements run through the conduct of the
deposition of all three classes and some elements differ as to each.
Before the Deposition
1 Deposition Preparation - See materials above
2 Meet your client
i) Preferably at the site of the deposition
ii) Make sure the client has not brought anything
iii) If your client is being deposed,
a) Go over the Ten Commandments again
b) Ask her if she has any last-minute questions
c) Tell her that she may be nervous, but once she is through the first few questions, she
will do fine
d) Make sure she knows
(1) she can ask for a break
(2) she can ask to speak with you any time there is no question pending
(3) she can correct a misstatement, either immediately or at any time during
questioning

iv) If your client is not being deposed
a) Why do you have him there? He has a right to be present, but is there a tactical or
strategic reason he should be?
b) Tell him
(1) he is not to react (especially verbally) to anything that is said
(2) he can’t “tug on your coat” during questioning
(3) he should take notes
(4) You will consult with him at breaks and before you conclude the questioning
3 Meet with the reporter – get the reporter on your side
i) Get his/her card
ii) Give the reporter
a) a full caption (to keep)
b) a full set of appearances
c) your card
d) your order, if any
iii) if you have exhibits, premark them
a) I like to give the reporter a written exhibit list of my exhibits
iv) In an appropriate case, give the reporter a glossary
a) Names
b) Technical terms

v) Tell the reporter the substance of the case (from your perspective)
vi) Act like a human being
vii)SLS - Speak Loud and Slow
viii) Spell things (or, if you want to move quickly, tell the reporter to ask you after the
deposition)
ix) Reporters get coffee too
x) Try to build rapport
a) Find a good service and use it
b) Find a good reporter and request him/her specifically
c) Remember their husband/wife’s name, kid’s names
d) Be nice
e) Remember that reporters
(1) need breaks
(2) can’t take more than one person at a time
(3) can’t take speed talkers
(4) can’t take mumblers
(5) can’t take nods, shakes or gestures (more about that later)
xi) Are entitled to make a living – if someone else just wants transcript, let them order it

4 If there is an interpreter
i) Make sure the interpreter speaks the right language / dialect
ii) Get his/her card
iii) Give the interpreter
a) a full caption (to keep)
b) a full set of appearances
c) your card
d) a written exhibit list of known exhibits
e) a glossary
(1) Names
(2) Technical terms
iv) Make sure the interpreter understands the terminology
v) Tell the reporter the substance of the case (from your perspective)
vi) Give the interpreter “pep talk”
a) In substance “When I am questioning Mr. X, I want you to function like a clear pane
of glass, adding nothing, subtracting nothing, and changing nothing. If Mr. X does
not understand a question, let him tell me so though you and I will try to get him to
understand – don’t you and he get into a conversation about the question or how to
answer it. If there is a word I use that you do not understand, tell me so by saying ‘by
the interpreter – I do not understand the term “buttress.”’ If you need a break, let us
know and we will take one.”
b) Colloquialisms are okay, but only if they exactly reflect the concept
c) NOT “he says he crossed the street in the middle of the block”, but “I crossed the
street in the middle of the block”

vii)Listen to the interpreter
a) Even if you don’t know the language you can pick up
(1) length of question
(2) rhythm of Q & A
(3) any backchat
(4) after a while, you will get to know some operative words – make sure they are the
ones used
b) don’t be shy about asking the interpreter what word he/she used in posing a question
viii) If you find a good interpreter, stick with him/her – they are worth their weight in
gold
ix) Make sure the interpreter speaks with the witness before the deposition starts, to make
sure they understand one another
x) DON’T BE AFRAID to bust a deposition if the reporter or interpreter is incompetent –
usually you can get other side to go along with you
5 When opposing counsel is present
i) Introduce yourself to his client (or the non-party witness)
ii) Chat to the extent you are permitted to
6 Pre-mark your Exhibits to the extent you can
i) Almost always, the Notice or subpoena + affirmation/affidavit of service
ii) Almost always, anything signed by the witness
iii) Plaintiffs are numbers, defendants are letters (unless you have an agreement that all
exhibits run consecutively)

Introductory Material
1. Everyone has a different introduction:
My intro:
Good morning. Allow me to introduce myself once again. My name is Colin E.
Kaufman. I work with the law firm of Adam Leitman Bailey, PC. We represent John
D. Plaintiff, the plaintiff in this action.
I am going to be asking you a series of questions today which relate to the lawsuit. If
you do not understand a question, will you let me know that so that I can rephrase it
until you do understand? [Wait for a response. If necessary, tell the witness – ‘you
have to respond orally.’]
If, for any reason you do not hear a question, will you let me know that so that I can
repeat the question or ask the reporter to repeat the question? [Wait for a response.]
You have the right to qualify your answers, that is, you can say words like “it was
about ten feet,” “it was approximately twenty seconds,” or “my best estimate is that it
took a week.” Do you understand that? [Wait for response.]
So if you answer a question, we will conclude that you have heard it, you understand
it and you know the answer. Is that fair? [Wait for response.]
During the course of the deposition, we will take a recess of about five minutes at a
convenient time about every hour, okay?
Structure of the Deposition
You certainly don’t have to follow my structure, but you must have a structure
If you are asked whether you want “the usual stips” and you are not in a familiar jurisdiction, ask
what they are
1 If the witness appears on behalf of a business, make sure he is the correct witness and can
bind the corporate entity
i) Are you an officer of ABC Industries?

ii) What is your title?
iii) Are you the person with the best knowledge of X?
a) If no – “Who is?”
(1) Is she still with ABC Industries?
(a) If no, both of “Who is the person with the best knowledge till employed by
ABC Industries?” and “Where does X live/now work?”
(2) If yes –
(a) What is her position?
(b) Where is her office?
(c) What is her telephone number?
(d) What is her title?
(e) What are her duties?
b) With whom did you consult to prepare for your testimony here today, besides the
company’s lawyer?
c) What did you review to prepare to testify today (to refresh your recollection of these
events)?
2 Biodata (ask if “first two” are “on”, i.e. name and current address on the record)
i) Name
a) Have you ever been known by any other name (for a woman, “including a married or
maiden name”)?
ii) Date of birth

a) Have you ever had occasion to use any other date of birth in reporting to any business
or government agency?
iii) SSAN (you are, in most instances, not entitled to this, but it never hurts to ask)
iv) Residence
a) Where do you live?
(1) Who else lives there on a fairly regular basis?
(2) Do you own or rent?
(a) If own
(i) How long have you owned it?
(ii) Are you on the deed?
(iii)Is anyone else on the deed?
(b) If rent
(i) Who do you rent from?
b) How long have you lived there?
c) Residence history for the past ten (or so) years – Where did you live before that
(1) Who else lived there on a fairly regular basis?
d) Are there any places you have lived within the past X years that we have not
discussed?
v) Education history
a) Are you a high school graduate?
(1) If no

(a) what is the highest grade you completed?
(b) where was that?
(c) when did you leave school?
(d) why did you leave school?
(2) if yes
(a) where & when
b) After graduating from Erasmus Hall High School in 1989, did you pursue any other
formal course of education from that time until today?
c) If yes – starting from first – include technical and in-service training
(1) When (dates)?
(2) Where (Institution and location)?
(3) Degree program?
(4) Degree granted?
(5) Concentration or major?
(6) Reason for leaving?
vi) Military History
a) Were you ever in the military?
b) Branch of service?
c) Years of service?
d) MOS (Military Occupational specialty) for enlisted & non-commissioned officers
e) Stationed where?

f) In-service training?
g) Highest rank achieved
h) What were your general duties as a military police sergeant?
i) Ever subject to military discipline (court martial, Article 15, captain’s mast, Board of
Inquiry)
(1) When
(2) Type of Disciplinary action
(3) Where
(4) Result
vii)Occupational History
a) After graduating from Erasmus Hall High School in 1989, when is the first time you
became employed full-time for money?
(1) What was your job when you started?
(2) Who was your employer?
(3) Who was your immediate supervisor?
(4) What was your job title?
(5) What did you do as a widget inspector (scope of duties)?
(6) Where were you stationed physically?
(7) Did you remain a widget inspector throughout your time at ABC Industries?
(8) When did your job change from widget inspector to supervising widget inspector?
(9) What were your duties as a supervising widget inspector?

(10) When did you leave ABC Industries?
(11) Why did you leave ABC Industries?
(12) When is the next time you became employed full time for money?
viii) Social History
a) Have you ever been married
(1) To Whom?
(2) When were you married?
(3) When did that marriage terminate, or are you still married to X?
(a) If it terminated:
(i) Did your marriage to X terminate by death, divorce, or in some other
fashion?
(ii) If death:
1. When did X die
2. Where did X die
(iii)If divorce
1. when were you and X divorced
2. where was the divorce decree entered – what court?
(4) Where does X live now?
(a) What is X’s telephone number?
(5) Were there any children of this marriage?
(a) Names

(b) DOB’s
(c) Present locations home & work
b) After X died, were you ever married again? – repeat
c) Do you have any children we have not yet discussed?
ix) Criminal History
a) Have you ever been convicted of a crime?
(1) When was the first time?
(2) What crime?
(3) When?
(4) Where, what court?
(5) What were the circumstances of the crime – what did you do?
(6) Were you convicted on your plea of guilty or after a trial?
b) When was the next time?
x) Licenses
a) Are you a licensed driver?
b) May I see your license?
c) We are going to photocopy your license and mark it as Defendant’s J for
identification (when the copy gets back, authenticate it)

d) Other than your New York State Driver’s license, do you hold any other licenses
from any government, agency or non-governmental licensing organization?
(1) What
(2) When did you first become licensed as a master plumber
(3) Explore further
xi) Prior Knowledge of Witnesses
a) Do you know X?
(1) How long have you known him?
(2) When did you first meet?
(3) How did you meet?
(4) Is your relationship social or professional or both
(a) Have you been to his house?
(b) Has he been to yours?
(c) Have you gone out to a meal together? – How often?
(5) Describe your relationship with X
(6) How often do you see X (or over the year before this incident)?
(7) Have you discussed [the subject matter of the litigation] with X?
(8) On how many occasions?
(9) When was the most recent?
(a) What did you say to him and what did he say to you?
(b) Is that all?

(c) Was any of this written down anywhere?
(d) Is there anything that would refresh your recollection [if you get an “I don’t
remember”]?
3 Medications/Alcohol
i) During the last twenty-four hours, have you consumed any alcoholic beverages, including
wine or beer
a) If yes
(1) When?
(2) What?
(3) How much?
(4) Are you intoxicated now?
(5) Have you drunk enough alcohol that it might have an effect on your memory or
your ability to describe what happened?
ii) During the last twenty-fours hours, have you taken any medication or drug, whether
prescription, over-the-counter or recreational?
a) If yes, same question areas as above
b) Find out what the medication is for, normal dosage, etc.
iii) During the last twenty-four hours, have you not taken any medicines which you are
supposed to take, whether prescription or over-the-counter?

4 The Meat of the Deposition
a) Varies by type of case
(1) Look to the PJI for elements
(2) Make it worth your client’s while to be there
(3) Ask the hard questions at deposition, so you know the answer before trial
b) Whatever the event, exhaust the topic before you move on
(1) What was done?
(2) When?
(3) Where did it happen?
(4) Who was there?
(5) What was said (and by whom to whom)?
(6) Why was it done?
(7) How was it accomplished?
(8) What was written down / what documents are there reflecting the transaction?
(a) Where is that writing?
(b) Who is its custodian?
(c) Does it exist today?
(d) When did you last see it?
(e) Is it maintained in any electronic form?
(i) Where?
(ii) What form?

(iii)Are there periodic backups made?
(iv)Who has access?
5 Conclusion of the Deposition
a) What have you reviewed in preparation for testifying here today?
(1) If the answer is “nothing” – ask a bit more
(a) Photos
(b) Your own notes
(c) The complaint or answer or bill of particulars
(d) Did your lawyer show you anything
(i) What?
(ii) When?
(iii)Describe it?
(e) Did you speak with anyone to help you remember the things you testified to
here today?
(i) Who
(ii) When
(iii)Where
(iv)At whose suggestion
(v) What did he say to you and what did you say to him
(vi)Did you write any of it down anywhere

(2) If the answer is anything other than no – get what you are entitled to – if
necessary start all over again on the issues dealt with by the refreshment
b) Take a minute and go over your notes – this may be your last chance ever or at least
before trial to ask a question of this witness.
c) My conclusion: “In about three weeks, you are going to receive from your lawyer a
transcript, that is a written record, of this deposition. At that time, you will have the
opportunity to review your testimony and correct any errors. But as you sit here
today, is there anything about which you misspoke, or that you want to correct?”
(1) If yes, do it – and then follow up
(2) If no – Is there anything you want to add to your testimony?
d) I have no further questions Ms. XYZ. Thank you.

Structure of Questions
1 KISS
i) Every question should inquire as to one new fact
ii) You never get in trouble with: who what when where why and how
iii) Make sure you don’t use no double negatives, because of you don’t then there shouldn’t
be any problem with the jury interpreting what might have been meant by whatever
someone might or might not have been said
2 Strive for evidential falsifiability
i) Ask: “What did he say?” not “Do you remember what he did?” and not “What, to the best
of your recollection did he do?”
ii) Evidential falsifiability means that
a) If evidence is available, the witness’ testimony can be shown to be true or false.
b) There should be no “wiggle room” in your question
(1) The witness can still inject it : “To the best of my current recollection, he then left
the premises” – but then the witness is the one who is uncertain
c) A series of “I don’t remember” answers should never lead to “well, do you remember
XYZ? – make the witness say she doesn’t remember or doesn’t know
3 Close the box
i) Always ask “Is that all” (he said, did, wrote, etc.)
a) You don’t want the witness to be able to talk his way out of the box later
ii) If you get a “That’s all I can remember now” response, ask “Is there anything in the
world that would help you to refresh your recollection”
a) If yes, then follow up:

(1) What?
(2) Where is that document/thing?
(3) Who is the custodian of the document/thing?
(4) When did you last seethe document/thing?
(5) Was the document/thing destroyed
1. when
2. where
3. by whom
4. why
5. how
4 Repetitive Direct
i) Your ultimate goal in a deposition is usually to get something which can be read at trial
or used in a motion
a) It is always better to have the nugget you need in one Q & A
i.e.
(1) Did you see the car? Yes.
(2) What color was the car? Green
(3) Where did you first see the car? About midway down the block
(4) On what street? Park Avenue
(5) Between which cross streets? 58th
and 59th
(6) What direction was the car heading? Southbound
(7) Are you a licensed driver? Yes
(8) For how many years? 14 years
(9) Have you had occasion to estimate the
speed of moving vehicles, both your own
and those of others? Yes
(10) On numerous occasions? Yes
(11) Have you checked your estimates
against your speedometer from
time to time Yes
(12) Have your estimates been

accurate to within a few
miles per hour Yes
(13) Did you make an estimate how
fast the green car was going? Yes
(14) How fast was the green car going
when you saw it going southbound
on Park Avenue from 59th
street
from the middle of the block until
the point it hit Mr. Smith in the 58th
street intersection? About 60 miles per hour
b) The last Q & A has punch on motion or at trial and establishes several issues in one
answer without the need for repetition and without giving you adversary a lot of
“fairness” reading
5 When you get your admission, move away
i) Don’t start trying to hammer on it
a) No matter how dumb the deponent, she is going to know something is up when you
say “Are you 100% absolutely certain that you knew the step was wobbly?”
b) Move on like you knew that was what she was going to say
ii) Never make your big admission question your last question – even if you have to ask how
the weather is where the witness lives
6 Be courteous
i) As a lawyer, you should be
a) This is a lawsuit, not a crusade
b) You are a professional, act like one, even if the other side doesn’t
ii) If you’re not courteous, it becomes quickly apparent in the transcript
iii) You can catch more flies with honey…
iv) Even with the bald-faced liar, it pays to lead him on before or instead of confronting him
a) Keep looking for evidential falsifiability

v) Never mistake courtesy for being soft
vi) Fairness promotes respect (and the appearance of fairness will help your record on
motion or appeal)
7 Dealing with objections
i) Don’t argue
a) You won’t convince the other side and the judge is not there
b) You are paying for the transcript
c) If a motion is made, you will have the opportunity to argue then
d) My normal statement:
“Your objection is noted on the record. Are you directing the witness not to answer?”
or
“I understand your position and disagree with it.”
ii) Listen to the objection – she may be right
a) It is sometimes better to eat a little crow and rephrase your question
iii) Do not allow counsel to restate your question
a) “Thank you for your assistance, but since I am conducting this deposition, I will ask
Mr. X as follows:”
iv) Do not allow counsel to answer questions (colloquy is almost never admissible unless it
is a stipulation). Make the witness answer. (Caveat: If counsel has said something great
for your case, you might want to ask the witness “Do you adopt the whole of your
lawyer’s statement as your response to my question?” – it happens sometimes)
v) Do not allow counsel to coach the witness
vi) Handle your own battles, but don’t be afraid to call the court

8 Ask the tough questions
i) Better to know now than later
ii) He may not have the best possible answer worked out yet
iii) You can explore the factual basis for his conclusion
9 If necessary do a Columbo

Colin E. Kaufman
120 Broadway, 17th
Floor
New York, NY 10271
212-825-0365 x 175
© Colin E. Kaufman
DEFENDING THE CLIENT’S DEPOSITION
[W]e note that our system of unsupervised deposition is dependent on the good-faith
obligation of attorneys to comply with the spirit as well as the letter of the statute and
procedure, and not to make objections which are merely obstructive, or to direct the
witness not to answer questions objected to when there will be no substantial prejudice
in permitting the question to be answered, reserving the objection pursuant to CPLR
3115.
White v. Martins, 100 A.D.2d 805, 474 N.Y.S.2d 733, 735 (1st
Dept. 1984)
"What am I, a potted plant? I'm here as a lawyer. That's my job."
Brendan Sullivan, Colonel Oliver North’s lawyer to Sen. Daniel Inouye
during the Iran-Contra Hearings
The short answer to Brendan Sullivan, today in New York (or in a federal case) is “yes” – see
below:
RULES AND STATUTES
PART 221. UNIFORM RULES FOR THE CONDUCT OF DEPOSITIONS
§221.1 Objections at Depositions
(a) Objections in general. No objections shall be made at a deposition except those which, pursuant to
subdivision (b), (c) or (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not
interposed, and except in compliance with subdivision (e) of such rule. All objections made at a
deposition shall be noted by the officer before whom the deposition is taken, and the answer shall be
given and the deposition shall proceed subject to the objections and to the right of a person to apply for
appropriate relief pursuant to Article 31 of the CPLR.
(b) Speaking objections restricted. Every objection raised during a deposition shall be stated succinctly
and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney,
shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to

the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in
attendance shall not make statements or comments that interfere with the questioning.
§221.2 Refusal to answer when objection is made
A deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of
confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is
plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not
direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to
answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis
therefor. If the deponent does not answer a question, the examining party shall have the right to complete
the remainder of the deposition.
§221.3 Communication with the deponent
An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless
all parties consent or the communication is made for the purpose of determining whether the question
should not be answered on the grounds set forth in section 221.2 of these rules and, in such event, the
reason for the communication shall be stated for the record succinctly and clearly.
Part 221 puts state practice on a par with federal deposition practice.
The former state practice lent itself to abusive conduct including intimidation, insult,
witness coaching and lengthy exegeses of opposing counsel’s thoughts on the case.
Under Part 221, objections can still be made (and must be made as to form), but the
speaking objection to tell the client how to answer is outlawed as is the wholesale direction not
to answer.
A lawyer can still direct the client not to answer (a) to protect a privilege or right of
confidentiality (e.g., attorney-client privilege, trade secret protection), (b) if a court has directed a
limitation (e.g. a further deposition on damages only, or a further deposition after rulings on prior
objections covering only those areas) or (c) if the question is “plainly improper” and the answer
would “cause significant prejudice to any person” (e.g. have you ever cheated on your wife [in a
contract action]). But note that even if the question is plainly improper (e.g. irrelevant) it still
must be answered unless prejudice is present or reasonably predicatble.
Part 221 does not supersede CPLR § 3103. You can (and should) still walk out and seek
a protective and limiting order if the questioning becomes oppressive or abusive.

§ 3101. Scope of disclosure
(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or
defense of an action, regardless of the burden of proof, by:
(1) a party, or the officer, director, member, agent or employee of a party;
(2) a person who possessed a cause of action or defense asserted in the action;
(3) a person about to depart from the state, or without the state, or residing at a greater distance
from the place of trial than one hundred miles, or so sick or infirm as to afford reasonable grounds of
belief that he or she will not be able to attend the trial, or a person authorized to practice medicine,
dentistry or podiatry who has provided medical, dental or podiatric care or diagnosis to the party
demanding disclosure, or who has been retained by such party as an expert witness; and
(4) any other person, upon notice stating the circumstances or reasons such disclosure is sought or
required.
(b) Privileged matter. Upon objection by a person entitled to assert the privilege, privileged matter
shall not be obtainable.
Nearly anything reasonably needed for prosecuting or defending an action can be
obtained in discovery, if done properly. Any party can request any discovery which would be
relevant either to their own cause of action or defense or that of another party.
Note that you cannot (in general) have discovery from an expert other than your own.
Also note that non-party subpoenas must “stat[e] the circumstances or reasons such
disclosure is sought or required.”
§ 3102. Method of obtaining disclosure
(a) Disclosure devices. Information is obtainable by one or more of the following disclosure
devices: depositions upon oral questions or without the state upon written questions…
***
(c) Before action commenced. Before an action is commenced, disclosure to aid in bringing an
action, to preserve information or to aid in arbitration, may be obtained, but only by court order. The
court may appoint a referee to take testimony.
***
(e) Action pending in another jurisdiction. When under any mandate, writ or commission issued
out of any court of record in any other state, territory, district or foreign jurisdiction, or whenever upon
notice or agreement, it is required to take the testimony of a witness in the state, he may be compelled to
appear and testify in the same manner and by the same process as may be employed for the purpose of

taking testimony in actions pending in the state. The supreme court or a county court shall make any
appropriate order in aid of taking such a deposition.
Pre-action disclosure is available only on Court Order. You have to buy your index
number, move by Order to Show Cause (which may be ex parte) and serve the Order on the
person or entity from whom or which disclosure is sought. Any of the discovery devices,
including deposition, may be used.
3102(e) is the New York version of the Uniform Foreign Depositions Act, which allows a
New York lawyer to seek a deposition to aid an out-of-state litigation and permits us to apply for
similar relief in the fifteen other jurisdictions which have adopted the Act. New York rules apply
during the course of the deposition.
§ 3103. Protective orders
(a) Prevention of abuse. The court may at any time on its own initiative, or on motion of any
party or of any person from whom discovery is sought, make a protective order denying, limiting,
conditioning or regulating the use of any disclosure device. Such order shall be designed to prevent
unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the
courts.
(b) Suspension of disclosure pending application for protective order. Service of a notice of
motion for a protective order shall suspend disclosure of the particular matter in dispute.
The protective Order is the ultimate protection from abuse during discovery. If you have
to (and this should happen very, very infrequently), after having made a good record of the
abusive procedure being employed against your client, and after having attempted to resolve it
without recourse to the Court, make your statement on the record:
I am suspending the deposition of my client for the purpose of seeking a
protective order due to the unreasonable conduct of counsel for the
plaintiff/defendant in the taking of this deposition.
Make your motion expeditiously and expect a cross-motion to compel you to submit your
client to a full deposition at his own expense. If you lose, you are going to be paying for the
continued deposition and it is very difficult to walk a second time, so grit your teeth.

§ 3104. Supervision of disclosure
(a) Motion for, and extent of, supervision of disclosure. Upon the motion of any party or witness
on notice to all parties or on its own initiative without notice, the court in which an action is pending may
by one of its judges or a referee supervise all or part of any disclosure procedure.
In your motion for a protective Order, you can ask the Court to appoint a referee (usually
a special master) to supervise the deposition (in addition to exercising the powers of the Court in
regulating other discovery). This should be an absolute last resort/
R 3106. Priority of depositions; witnesses; prisoners; designation of deponent
(a) Normal priority. After an action is commenced, any party may take the testimony of any
person by deposition upon oral or written questions. Leave of the court, granted on motion, shall be
obtained if notice of the taking of the deposition of a party is served by the plaintiff before that party's
time for serving a responsive pleading has expired.
(b) Witnesses. Where the person to be examined is not a party or a person who at the time of
taking the deposition is an officer, director, member or employee of a party, he shall be served with a
subpoena. Unless the court orders otherwise, on motion with or without notice, such subpoena shall be
served at least twenty days before the examination. Where a motion for a protective order against such an
examination is made, the witness shall be notified by the moving party that the examination is stayed.
(c) Prisoners. The deposition of a person confined under legal process may be taken only by
leave of the court.
(d) Designation of deponent A party desiring to take the deposition of a particular officer,
director, member or employee of a person shall include in the notice or subpoena served upon such
person the identity, description or title of such individual. Such person shall produce the individual so
designated unless they shall have, no later than ten days prior to the scheduled deposition, notified the
requesting party that another individual would instead be produced and the identity, description or title
of such individual is specified. If timely notification has been so given, such other individual shall instead
be produced.
Normal priority of deposition is plaintiff first, defendants(s) second because as a firm
rule, you (as defendant) should send your deposition notice at the same time as your answer. As
a plaintiff, when you give additional time for an answer, you may wish to consider serving your
deposition notice at the time when the original time to answer would have expired (this is not the
common practice and may get some noses out of joint).
Priority of deposition can be varied either by the Court or by stipulation.

As among defendants, or as among multiple plaintiffs, try to get the Preliminary
Conference Order to reflect whichever is more advantageous to you: either “in notice order” or
“in caption order.”
Non-parties must be subpoenaed at least twenty days before the deposition date and
notice given to all other parties, together with a copy of the subpoena.
Prisoners can be deposed only by Court Order, usually at some godforsaken place in the
nether reaches of the State, in a dank room, behind very high walls or barbed wire. Try to avoid
it.
It used to be that you could only notice “ABC Industries, Inc., by an officer with
knowledge.” Now we can notice “ABC Industries, Inc., by its treasurer,” or “ABC Industries,
Inc. by William Jones.” ABC’s lawyer can still advise she is producing someone else, but she
does so at her peril – if the produced witness doesn’t have the knowledge that we can show
Treasurer William Jones would have, ABC will end up being deposed twice and quite possibly
being ordered to pay for the second deposition.
R 3107. Notice of taking oral questions
A party desiring to take the deposition of any person upon oral examination shall give to each
party twenty days' notice, unless the court orders otherwise. The notice shall be in writing, stating the
time and place for taking the deposition, the name and address of each person to be examined, if known,
and, if any name is not known, a general description sufficient to identify him or the particular class or
group to which he belongs. The notice need not enumerate the matters upon which the person is to be
examined. A party to be examined pursuant to notice served by another party may serve notice of at least
ten days for the examination of any other party, his agent or employee, such examination to be noticed for
and to follow at the same time and place.
The deposition notice can identify either the person to be deposed or “one of the police
officers who responded to 123 West Main Street, New York, NY on March 12, 2005 at about
10:15 p.m.” [which of course begs the question of how you get the City to produce anyone with a
connection to the case]. You do not have to include in a party notice what it is you intend to
question the deponent about.
Note that the actual practice in New York differs from most other jurisdictions and from
federal practice – notice dates are not “real” dates, which are instead set at the Preliminary
Conference. It is a fairly standard courtesy to confirm the day before the deposition.
The party taking the deposition orders and pays for the reporter and interpreter unless
several parties are splitting (e.g. three defendants take the Cantonese-speaking plaintiff and split

the reporter and interpreter). Normally the parties agree on one reporting service for the day and
each pays for deposition(s) taken by his/her party.
R 3110. Where the deposition is to be taken within the state
A deposition within the state on notice shall be taken:
1. when the person to be examined is a party or an officer, director, member or employee of a party,
within the county in which he resides or has an office for the regular transaction of business in person or
where the action is pending; or
2. when any other person 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; or
3. when the party to be examined is a public corporation or any officer, agent or employee thereof,
within the county in which the action is pending; the place of such examination shall be 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.
The party noticing the deposition gets to designate the place in the first instance. A party
can always be examined where the action is pending, and also where he/she resides or has a
business office.
Non-parties can be taken in the county in which they live, where they are employed or, if
a non-resident of New York, where he was served.
City agencies uniformly require that their employees be taken in the Corporation
Counsel’s office (unless the City has an outside lawyer for the case), which means that all the
depositions will be held there.
The actual place of party depositions are usually set at the Preliminary Conference.

R 3111. Production of things at the examination
The notice or subpoena may require the production of books, papers and other things in the
possession, custody or control of the person to be examined to be marked as exhibits, and used on the
examination. The reasonable production expenses of a non-party witness shall be defrayed by the party
seeking discovery.
Your deposition notice or subpoena should set forth everything you think might be
valuable to your case. Ask for originals (you will have to give them back). A witness is entitled
to his or her appearance fee and mileage. You cannot pay a non-expert witness for his time or
for her “actual” expense in appearing. If the witness has to pay for a truck to bring the pig iron
exemplars you demanded, he is entitled to reimbursement for the cost of the truck rental.
R 3112. Errors in notice for taking depositions
All errors and irregularities in the notice for taking a deposition are waived unless at least three
days before the time for taking the deposition written objection is served upon the party giving the notice.
R 3113. Conduct of the examination
(a) Persons before whom depositions may be taken. Depositions may be taken before any of the
following persons except an attorney, or employee of an attorney, for a party or prospective party and
except a person who would be disqualified to act as a juror because of interest in the event or
consanguinity or affinity to a party:
1. within the state, a person authorized by the laws of the state to administer oaths;
2. without the state but within the United States or within a territory or possession subject to the
jurisdiction of the United States, a person authorized to take acknowledgments of deeds outside of the
state by the real property law of the state or to administer oaths by the laws of the United States or of the
place where the deposition is taken; and
3. in a foreign country, any diplomatic or consular agent or representative of the United States,
appointed or accredited to, and residing within, the country, or a person appointed by commission or
under letters rogatory, or an officer of the armed forces authorized to take the acknowledgment of deeds.
Officers may be designated in notices or commissions either by name or descriptive title and letters
rogatory may be addressed "To the Appropriate Authority in (here name the state or country)."
(b) Oath of witness; recording of testimony; objections; continuous examination; written
questions read by examining officer. The officer before whom the deposition is to be taken shall put the
witness on oath and shall personally, or by someone acting under his direction, record the testimony. The
testimony shall be recorded by stenographic or other means, subject to such rules as may be adopted by
the appellate division in the department where the action is pending. All objections made at the time of

the examination to the qualifications of the officer taking the deposition or the person recording it, or to
the manner of taking it, or to the testimony presented, or to the conduct of any person, and any other
objection to the proceedings, shall be noted by the officer upon the deposition and the deposition shall
proceed subject to the right of a person to apply for a protective order. The deposition shall be taken
continuously and without unreasonable adjournment, unless the court otherwise orders or the witness
and parties present otherwise agree. In lieu of participating in an oral examination, any party served with
notice of taking a deposition may transmit written questions to the officer, who shall propound them to
the witness and record the answers.
(c) Examination and cross-examination. Examination and cross-examination of deponents shall
proceed as permitted in the trial of actions in open court. When the deposition of a party is taken at the
instance of an adverse party, the deponent may be cross-examined by his own attorney. Cross-
examination need not be limited to the subject matter of the examination in chief.
(d) The parties may stipulate that a deposition be taken by telephone or other remote electronic
means and that a party may participate electronically. The stipulation shall designate reasonable
provisions to ensure that an accurate record of the deposition is generated, shall specify, if appropriate,
reasonable provisions for the use of exhibits at the deposition; shall specify who must and who may
physically be present at the deposition; and shall provide for any other provisions appropriate under the
circumstances. Unless otherwise stipulated to by the parties, the officer administering the oath shall be
physically present at the place of the deposition and the additional costs of conducting the deposition by
telephonic or other remote electronic means, such as telephone charges, shall be borne by the party
requesting that the deposition be conducted by such means.
Usually the reporter is a notary (always in New York City) and is “the officer” before
whom the deposition is taken.
In foreign countries, normally a consular officer swears in the witness at the consulate
and the deposition continues at the office of the reporter or local counsel. A better practice is to
enter into a written “so ordered” stipulation designating a particular reporter to be named in
letters rogatory or commission as the person before whom the deposition is to be taken.
Objections to the officer taking the deposition must be made before the commencement
of the deposition (see CPLR 3115, below). The deposition is supposed to proceed without
substantial interruption, unless the parties agree otherwise.
In theory, a party can submit written questions to the officer before whom the deposition
is being taken, which would then be posed to the witness. I have nbever seen this done, or heard
of it being done in practice.
Telephone or videophone depositions are available by stipulation (and by Order, although
not mentioned in the section). Note that the person administering the oath must normally be
physically present with the witness. Any party’s attorney may choose to be physically present.

Note that “Examination and cross-examination of deponents shall proceed as permitted in
the trial of actions in open court” and everybody can cross-examine. Although leading is not
generally done in practice at deposition, the “leading question” objection is improper in party
depositions. Subsequent examinations are not limited to the questioning in chief, as they would
be at trial.
R 3114. Examination of witness who does not understand the English language
If the witness to be examined does not understand the English language, the examining party
must, at his own expense, provide a translation of all questions and answers. Where the court settles
questions, it may settle them in the foreign language and in English. It may use the services of one or
more experts whose compensation shall be paid by the party seeking the examination and may be taxed as
a disbursement.
R 3115. Objections to qualification of person taking deposition; competency; questions and answers
(a) Objection when deposition offered in evidence. Subject to the other provisions of this rule,
objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for
any reason which would require the exclusion of the evidence if the witness were then present and
testifying.
(b) Errors which might be obviated if made known promptly. Errors and irregularities occurring
at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in
the oath or affirmation, or in the conduct of persons, and errors of any kind which might be obviated or
removed if objection were promptly presented, are waived unless reasonable objection thereto is made at
the taking of the deposition.
(c) Disqualification of person taking deposition. Objection to the taking of a deposition because
of disqualification of the person by whom it is to be taken is waived unless made before the taking of the
deposition begins or as soon thereafter as the disqualification becomes known or could be discovered
with reasonable diligence.
(d) Competency of witnesses or admissibility of testimony. Objections to the competency of a
witness or to the admissibility of testimony are not waived by failure to make them before or during the
taking of the deposition, unless the ground of the objection is one which might have been obviated or
removed if objection had been made at that time.
(e) Form of written questions. Objections to the form of written questions are waived unless
served in writing upon the party propounding the questions within the time allowed for serving
succeeding questions or within three days after service.

3115(a) reiterates that objections at the deposition, except as to form, are reserved to the
trial. Objections to relevance, materiality, hearsay and the like, while they should be made at the
deposition, need not be and may be raised for the first time when a party offers them at trial.
Under 3115(b) objections to form of the questions (e.g., compound) or the answer (e.g., not
responsive) must be made at the deposition or they are waived.
An objection to the qualification of the officer taking the deposition, is likewise waived if
not made at the deposition or a soon as the grounds become known.
Generally, incompetency of the witness is not waived. This most frequently arises with
respect to very young witnesses. A thorough voir dire before swearing a young witness is a
proper precaution.
R 3116. Signing deposition; physical preparation; copies
(a) Signing. The deposition shall be submitted to the witness for examination and shall be read to
or by him or her, and any changes in form or substance which the witness desires to make shall be
entered at the end of the deposition with a statement of the reasons given by the witness for making them.
The deposition shall then be signed by the witness before any officer authorized to administer an oath. If
the witness fails to sign and return the deposition within sixty days, it may be used as fully as though
signed. No changes to the transcript may be made by the witness more than sixty days after submission to
the witness for examination.
(b) Certification and filing by officer. The officer before whom the deposition was taken shall
certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of
the testimony given by the witness. He shall list all appearances by the parties and attorneys. If the
deposition was taken on written questions, he shall attach to it the copy of the notice and written
questions received by him. He shall then securely seal the deposition in an envelope endorsed with the
title of the action and the index number of the action, if one has been assigned, and marked "Deposition
of (here insert name of witness)" and shall promptly file it with, or send it by registered or certified mail
to the clerk of the court where the case is to be tried. The deposition shall always be open to the
inspection of the parties, each of whom is entitled to make copies thereof. If a copy of the deposition is
furnished to each party or if the parties stipulate to waive filing, the officer need not file the original but
may deliver it to the party taking the deposition.
(c) Exhibits. Documentary evidence exhibited before the officer or exhibits marked for
identification during the examination of the witness shall be annexed to and returned with the deposition.
However, if requested by the party producing documentary evidence or on exhibit, the officer shall mark
it for identification as an exhibit in the case, give each party an opportunity to copy or inspect it, and
return it to the party offering it, and it may then be used in the same manner as if annexed to and returned
with the deposition.

(d) Expenses of taking. Unless the court orders otherwise, the party taking the deposition shall
bear the expense thereof.
(e) Errors of officer or person transcribing. Errors and irregularities of the officer or the person
transcribing the deposition are waived unless a motion to suppress the deposition or some part thereof is
made with reasonable promptness after such defect is, or with due diligence might have been,
ascertained.
The witness has sixty days to review the transcript, to make changes or corrections and
return it executed. A transcript not returned within sixty days can be used as if sworn and the
deponent has no further right to changes his or her answers. Note that when an answer is
changed, both the original answer and the corrected answer can be read to the jury.
In practice, in New York, the reporter certifies the transcript, but never files it. The
original and two copies are forwarded to the party taking the deposition. That party forwards the
original for execution and return and one copy to the deponent’s counsel and keeps one himself.
Anyone else orders his or her own copy.
Also, in practice in New York, the reporter never takes control of the exhibits. They are
instead returned to the party who produced them. That party obviously has an obligation to
maintain them for trial and appeal and to provide copies to all other counsel (usually the
documents have already been exchanged, so the parties will accept just the face sheet of multi-
page documents).
R 3117. Use of depositions
(a) Impeachment of witnesses; parties; unavailable witness. At the trial or upon the hearing of a
motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the
rules of evidence, may be used in accordance with any of the following provisions:
1. any deposition may be used by any party for the purpose of contradicting or impeaching the
testimony of the deponent as a witness;
2. the deposition testimony of a party or of any person who was a party when the testimony was given
or of any person who at the time the testimony was given was an officer, director, member, employee or
managing or authorized agent of a party, may be used for any purpose by any party who was adversely
interested when the deposition testimony was given or who is adversely interested when the deposition
testimony is offered in evidence;
3. the deposition of any person may be used by any party for any purpose against any other party who
was present or represented at the taking of the deposition or who had the notice required under these
rules, provided the court finds:
(i) that the witness is dead; or

(ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of
the state, unless it appears that the absence of the witness was procured by the party offering the
deposition; or
(iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment;
or
(iv) that the party offering the deposition has been unable to procure the attendance of the witness by
diligent efforts; or
(v) upon motion or notice, that such exceptional circumstances exist as to make its use desirable, in
the interest of justice and with due regard to the importance of presenting the testimony of witnesses
orally in open court;
4. the deposition of a person authorized to practice medicine may be used by any party without the
necessity of showing unavailability or special circumstances, subject to the right of any party to move
pursuant to section 3103 to prevent abuse.
(b) Use of part of deposition. If only part of a deposition is read at the trial by a party, any other
party may read any other part of the deposition which ought in fairness to be considered in connection
with the part read.
(c) Substitution of parties; prior actions. Substitution of parties does not affect the right to use
depositions previously taken. When an action has been brought in any court of any state or of the United
States and another action involving the same subject matter is afterward brought between the same
parties or their representatives or successors in interest all depositions taken in the former action may be
used in the latter as if taken therein.
(d) Effect of using deposition. A party shall not be deemed to make a person his own witness for any
purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for
any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness
of the party introducing the deposition, but this shall not apply to the use of a deposition as described in
paragraph two of subdivision (a). At the trial, any party may rebut any relevant evidence contained in a
deposition, whether introduced by him or by any other party.
This section is why you did all this work. The deposition can be used by anyone on
motion or at trial to impeach the deponent. It can be used for any purpose by one adverse to the
deponent (i.e. as evidence in chief). If you are offering deposition testimony as evidence in chief
at trial, make sure you don’t just read it, but proffer it. i.e.
(Trial Witness): The light was green.
Q: (You on cross): You came to your attorney’s office on April 12, 2004 to
take part in a deposition, correct
A: Yes

Q: I asked you some questions about the accident at that time,
right?
A: Yes
Q: You were under oath?
A: Yes
Q: In fact, the same oath to tell the truth that you took here
today, right?
A: Yes
Q: Your attorney was sitting next to you?
A: Yes
Q: You had consulted with your lawyer that same day for
about an hour, isn’t that correct?
A: Yes
Q: April 12, 2004 was about six months after the accident,
correct?
A: Right
Q: And today is nearly four years after the accident, am I
correct?
A: Yes
Q: On April 12, 2004, while testifying under oath, in your
lawyer’s office, were you asked the following question and
did you make the following answer? Reading from Page
41, lines 12 through 18.
Q: On October 6, 2003, at about 2:00 p.m., while you
were crossing the intersection of Fifth Avenue and
62d Street from west to east, did you see the traffic
signal facing you?
A: Yes.

Q: What color was it?
A: It was amber, changing to red
Q. Were you asked those questions and did you make those
answers?
A: I guess I did.
Q: In fact you did say those things under oath in that
proceeding, isn’t that right?
A: Yes.
At this point, you have done a good job impeaching the witness, but there is no current evidence
that the light was amber changing to red. Once Plaintiff’s counsel rehabilitates him on redirect,
you have no controverting evidence to plaintiff’s statement the light was green until and unless
you tell the Court: “Your Honor, Defendant offers in evidence Page 41, lines 12 through 18 of
Plaintiff’s Deposition under oath taken April 12, 2004.” So do it. Or read it in or your case,
together with the other damning admissions you elicited at the same deposition.
Be aware that under § 3117 (b), your opponent can read into evidence, immediately following
your reading (or later), “any other part of the deposition which ought in fairness to be considered
in connection with the part read.”
You can use a doctor’s deposition without showing any of the special circumstances that the
proponent of the use of a deposition might have to show.

PREPPING THE CLIENT
1. The client must be prepared like any other witness (q.v. supra)
2. Big differences are:
a. The client is often willing to meet with you any time, anywhere and repeatedly.
Take advantage
b. The client may be willing to listen to you
3. Often you will have to make the client realize that there is usually another side to any
story
4. Make sure your client knows the elements of the cause of action or defense and that
she has the factual wherewithal to back them up (if not, you can always consider
withdrawing part of the action or withdrawing a defense)
Disaster avoidance – sometimes it happens that you are watching your case unfairly go down in
flames
1. Tell the client that if you (the lawyer) says “I need a bathroom break” – so does he
2. Make sure your client is aware going and what the important areas are on cross
3. Tell your client that he should not attempt to conceal, excuse or explain away his
three burglary convictions and his past perjury conviction – just admit and move on
4. When the client starts telling the other lawyer to put his dukes up, call a break and
calm him down
5. Never let your client commit perjury
6. Never let yourself be put in a position where you are called on to misrepresent

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