New rules go into effect in the New York courts October 1st governing attorney conduct during depositions (Part 221 of the Uniform Rules for Trial Courts Relating to the Conduct of Depositions) and procedures for pretrial conferences (Rule 202.26(e) Uniform Civil Rules Relating To Pre-Trial Conferences).
Depositions
According to a Law.com article Friday, July 28, 2006, the new rules regarding depositions are intended to limit both ‘speaking objections’ during depositions, in which the attorney suggests an answer to the question being posed, and instructions to witnesses not to answer a question during a deposition.*
In New York civil cases pending in state court, most attorneys agree to the ‘usual stipulations’ at the outset of a deposition. These stipulations limit objections other than objections to the form of the question. However, it is relatively common practice for attorneys to object to during a deposition and instruct their client not to answer a question, or line of questions.
Unlike a trial situation, in which only those questions relevant to the matter at hand are permitted, the ‘usual stipulations’ permit a question to be asked during a deposition, even if the question itself is not relevant, as long as the question is reasonably calculated to lead to relevant evidence. Pursuant to the ‘usual stipulations,’ all objections other than objections as to the form of the question are preserved for trial, and the attorney is free to object to the question at trial, even if the question was not objected to at the deposition. Presently, attorneys are permitted to forego the ‘usual stipulations,’ as long as they state their intentions on the record during the deposition.
Members of the Chief Administrative Judge’s Advisory Committee on Civil Practice note that the new deposition rules are designed to address abuses that they see resulting from attorneys’ attempts to gain a tactical advantage during depositions by blocking certain questions or suggesting answers to witnesses. According to the law.com article, the new rules should curtail the need for attorneys to contact the court for intervention during depositions. Whether this proves to be the case remains to be seen.
Presumably, the new rules would prevent lawyers from stipulating that all trial objections must be made at the time of the deposition. The the law.com article indicates that,
lawyers will be barred from making objections solely on the grounds of relevance, hearsay or competence. Lawyers will be permitted to instruct witnesses not to answer when the questions delve into an area of privilege; stray into an area barred by prior court order; or raise a question that "is plainly improper" and would cause "significant prejudice."
A lawyer instructing a witness not to answer a question will be required to provide a clear statement on the record supporting the instruction. However, it is difficult to see how these rules will change the behavior of lawyers and litigants intent on abusing the system. Arguments are sure to ensue about the definitions of 'plainly improper' and 'significant prejudice.'
Pretrial conferences
The new rules regarding pre-trial conferences will permit judges to require representatives of an insurance company to appear at settlement conferences, regardless of whether the insurance company is a named party in the litigation. This provision is intended to curtail what some members of the advisory committee consider to be the insurance companies’ practice of waiting until jury selection before making their ‘best offer’ of settlement. The law.com article quotes Mark Zauderer, one of the advisory committee members, who states that this practice is a waste of judicial time and an abuse of the jury system.
The new rules empower the judge to compel participation of insurance company representatives ‘and others who have an interest in the outcome of the litigation,’ and judges may allow such participation by telephone.
As one defense attorney points out in the article, and as my own personal experience attests, prior attempts to involve insurance company representatives in pretrial settlement conferences have had mixed results, at best, in the past. Some insurers will send a representative to a conference with little authority. Others have established the practice of evaluating cases early in litigation and making an offer from which they will not deviate as a matter of policy until the time of trial, if ever. (Although if the rule is intended to elicit the insurer’s ‘best offer’ prior to trial, arguably, in this situation the best offer has already been made).
Part of any trial strategy includes an analysis of the costs of litigation, including the cost of trial. There are many attorneys practicing in the civil arena that have little or no trial experience, which effects the value of their case. Their willingness or unwillingness to face trial is one factor to be considered during settlement negotiations.
Having participated in a number of settlement conferences, both with and without the insurance company’s representative present, I can say that in my experience, these ‘pretrial settlement conferences’ are often a waste of time – and often the blame cannot be placed on the insurer.
Often, the litigants themselves do not ‘get serious’ about the value of their case until trial is imminent. Lawyers on both sides of the aisle are busy and are frequently unprepared for meaningful settlement negotiations until the matter is fully prepped for trial. For meaningful settlement negotiations to occur, the litigants must be present as well (particularly the plaintiff), which rarely occurs. Judges must be willing to enter into in depth discussions with litigants and their counsel about the case. In my experience, this rarely occurs, and settlement conferences themselves are the real waste of court time.
Although the present rules indicate that the judge ‘shall consider’ such things as limitation of issues, amendment of pleadings, obtaining admissions of fact and documents to avoid unnecessary proof (See 202.26(c)), the court, in my experience, rarely does so. This is also partially the fault of counsel involved in the action, but I have yet to experience a settlement conference as substantive as that suggested by the rules. Generally, these types of discussions don’t occur until the jury has been selected and the matter has been referred to a trial judge.
Part of the problem here may be that in most state civil courts, the judge responsible for monitoring the case throughout discovery and up to the pre-trial conference is not the judge that will be handling the matter for trial. Once the pretrial conference is concluded, the matter is removed from the assigned judge’s list of cases and placed on the trial calendar, where it awaits the assignment of a trial judge, usually at the time of jury selection, and sometimes not until jury selection has been completed. Under this system, there isn’t much incentive for judges to get involved in extensive pretrial settlement discussions; the matter will be removed from their case list after the pretrial conference whether the case is settled or not.
It is difficult to tell whether a change in preparation on the part of attorneys and litigants would prompt a change in attitude of the judiciary toward pre-trial settlement conferences, or vice-versa. This may be a bit of a 'chicken and egg' problem. But based on my experience, these changes in the rules are likely to make little, if any difference.
I'm curious about your thoughts on these changes - and whether you experience differs from mine.
[*Note: Amendments are also in store for obtaining ex parte restraining orders.]
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