New york depositions objections

Explain that your questions are designed to clarify or to further elucidate prior testimony. Demonstrate that your questions are preliminary foundation questions for further areas of inquiry. Smith, is it your testimony that the light was red when my client entered the cross walk? Remind the court that latitude is permissible on cross-examination. Ordinarily, the court will allow repetition on cross-examination so long as counsel does not abuse the practice.

While the court may not deprive a party of the right to inquire into matters directly relevant to principal issues in the case, it may in the proper exercise of discretion restrict inquiry into collateral matters or prohibit unnecessary repetitive examination. An administrative hearing officer, like a trial court, has a right to prohibit unnecessary, repetitive cross examination.

Thus, the trial court erred in precluding counsel from asking the same question on cross-examination that the witness answered on direct. Moyer v. The trial court did not err in refusing to allow needless repetition of the same question to the same witness. In the Matter of Anibal P. Anonymous , A.

Groht v. Sobol , A. Questions that assume facts not already introduced into evidence require immediate objection because they may be very misleading. Spenseri v. Lasky , A. Geico Properties, Inc. Long Island Lighting Co. Questions that assume facts not in evidence or personally known to the witness may also confuse witnesses and may cause them to appear needlessly evasive.

Finally, using such questions may introduce otherwise inadmissible hearsay. Interstate Cigar Co. Dynaire Corp. Courts do not like questions of this sort, particularly when there are many assumed facts, and are likely to sustain an objection on this basis, or to at least ask counsel to rephrase or break down the question into its component parts. For expert witnesses, see Ch. These questions are particularly dangerous when posed to expert witnesses, because jurors may assume there has been testimony or evidence concerning such facts and they have forgotten it or that facts actually in controversy are undisputed.

Questions to an expert need not be posed in hypothetical form, nor need expert witnesses give the basis for an opinion before rendering it. However, experts may be required to give the basis for an opinion on cross-examination. CPLR De Wall v. Owl Homes of Victor , A. Failure to do so may result in waiver of this objection. See Miceli v.

Scrutinize any long question carefully. Even if the facts are in evidence, argue that the question is really a summation and should not be allowed. If the court overrules your objection, ask to approach the bench to explain the seriousness of your objection, or why certain facts are not in evidence or are seriously disputed and should not be the basis of a hypothetical question.

If the court sustains your objection, seek a curative instruction concerning the particular facts not in evidence. Consider asking for an admonition as well, both to emphasize the inaccuracy of the assumptions and to cast your adversary in an unfavorable light. If your adversary assures the court that he or she will introduce evidence establishing the disputed or unfounded facts, and your adversary does not establish the facts, remember to move to strike the testimony before summations.

If the conclusions drawn by the witness are sufficiently prejudicial, consider moving for a mistrial. If possible, let the judge know at the beginning of the session or the day before so as to give him or her time to think about presentation of the question. Lay your foundation before asking hypothetical questions. If the foundation facts are commonly known or the conclusion is commonly known, lay witnesses may be asked questions that are subject to connection.

If you are unable to avoid asking a conditional question that is subject to connection with evidence to be established, be absolutely certain you will be able to make the connection. If you are certain you will establish the foundation, assure the court that valid testimony or evidence will corroborate your assumptions. In a personal injury wrongful death action, it was proper to exclude testimony of an expert as to the cause of skid marks when there was no evidence about skid marks and thus no foundation for the opinion.

Arce , 42 N. Tarlowe v. Metropolitan Ski Slopes, Inc. In a personal injury products liability action brought by a novice skier, an expert was properly permitted to give an opinion in response to a hypothetical question concerning the cause of the malfunction — failure to release ski bindings — where the facts were fairly inferable from the evidence. Because of its misleading nature, a question assuming the truth of a fact in controversy, such as a criminal act, may not be put to a witness.

Fernandes v. In a case involving insurance coverage for collapse of roof, court correctly precluded expert from testifying as to his opinion as to cause of collapse because the opinion was neither based on facts in the record nor those personally known to the witness.

An expert cannot base an opinion on an assumption of facts not supported by the evidence. In a medical malpractice case, it was improper to ask a physician on cross examination whether it was proper to prescribe medication without first arriving at a diagnosis because there was no support or basis in the record for asking the question.

Gathers v. Guldy v. Pyramid Corp. Miceli v. An expert may not draw a conclusion based on speculation. Lopato v. Kinney Rent-A-Car, Inc. Mohr v. An unresponsive answer is one that does not address the question or that goes off on a tangent. In addition, such questions may well disclose damaging or inadmissible evidence. This objection, followed by a motion to strike, is frequently made by the cross-examining attorney during cross-examination. Budd , A. However, it may also be made on direct examination by counsel for either side.

Brockway v. Monroe , 59 N. The court should strike unresponsive answers, and should tell the jury to disregard any stricken testimony. Parker , 46 A. Benjamin , A. However, if the court grants the objection, request that the unresponsive testimony be stricken from the record. The court usually appreciates a reminder as to the necessity of making a clear ruling on the record striking the unresponsive testimony. See Raisler v. Benjamin, A. Theoretically, only the attorney questioning the witness should make this objection, inasmuch as he or she is the one seeking the information.

However, since both or all sides usually have a interest in an orderly presentation of admissible evidence, any party may interpose the objection. This is a particularly good objection when the witness offers damaging testimony that in any way exceeds the scope of the question.

However, you run the risk that the jury will think you are trying to hide something or will think you are being rude or discourteous to the witness. Thus, object promptly but unobtrusively and try not to appear as though you are preventing the witness from telling a coherent story. Make certain that the judge rules on your motion to strike and tells the jury to disregard stricken testimony. If your witness has been responsive, ask the court to permit the witness to continue. If your witness has not been responsive, repeat and possibly rephrase the question so as to elicit a responsive answer.

If your witness has something relevant to say, tailor the question to the answer that the witness wishes to give. If your adversary makes this objection frequently, request a bench conference and ask the judge to admonish counsel concerning the impropriety of the objection.

Moskovitz , A. In a breach of contract-breach of fiduciary duty case brought by a law firm against a former partner, the trial court properly refused to strike allegedly unresponsive answers since they explained ultimate answers.

Rivera , A. Hernandez , A. As a general rule, trial court judges confine lay witnesses to testimony concerning facts or observations. Giraldez v. Russell , A. To permit such testimony from lay witnesses would invade the province of the jury. La Penta v. Loca-Bik Ltee Transport , A. Best , A. However, separating observation from opinion is often difficult.

A long-standing rule permits lay persons to give opinion evidence only when the subject matter of the testimony is such that it would be impossible to accurately describe the facts without stating an opinion or impression.

Thus, for instance, lay witnesses may identify an individual portrayed in a photograph where that individual is known to the witness. Lay witnesses may also be permitted to testify to conclusions when there is an adequate basis for the perception, and the conclusion will assist the trier of fact.

Shpritzman v. Strong , A. On the other hand, the trial court may exclude such testimony if its value is outweighed by the risk of unfair prejudice. For objections on basis of prejudice, see Ch. Specific areas in which courts allow lay opinion if counsel lays a proper foundation include:.

Collins v. Wyman , 38 A. Senses: matters of taste, smell, touch. Marx , A. Emotional state of another. Physical condition of another if readily observed, such as strength, weakness, or illness. Rawls v. American Mut. Life Ins. Ford Motor Co. Age of another. Patterson , A. Value of property or services.

Tulin v. Bostic , A. Speed of a vehicle. Olsen , 22 N. Peterson, 1 A. Strong, A. Appearance of intoxication. Cruz , 48 N. City ofNew York , A. Big Z Corp. Voice identification of another. Lynes , 49 N. The foundation to introduce lay-witness opinions varies depending on the subject matter.

At a minimum, the proponent must show [ see Kravitz v. That the witness observed the events, circumstances, or person about which the witness has an opinion. A basis of knowledge concerning the subject matter, including familiarity with the subject. When an opponent asks a lay witness for an opinion or conclusion, consider objecting on one or more of the following grounds:. Avenues of inquiry may include:.

For hearsay, see Ch. Argue that you established a clear factual predicate for the witness to give the opinion. In response to claims of prejudice or irrelevance, demonstrate that the probative value of the opinions outweighs any prejudice. Point out that forming opinions about actions witnessed or events experienced is natural, and that the witness is clearly competent to make those determinations. Assure the court that opposing counsel will be able to challenge inferences during cross-examination or by calling other witnesses.

Assure the court that the jury will have ample opportunity to form its own opinion and will not be unduly influenced by the testimony. Suggest a cautionary instruction if the court appears reluctant to permit the testimony. Corey , N. A lay person may compare handwriting where there is an adequate foundation and competence is established. Freeman Check Cashing Inc. State of New York , 97 Misc. In a forgery case, a lay person is not permitted to make an actual comparison of handwriting samples in the technical manner that would be employed by a handwriting analyst.

Matter of Estate of Vickery , A. Falkides v. Falkides , 40 A. Lay persons may express opinions as to the value of property where they are familiar with the property and have some knowledge of market value. In addition, the owner of property can testify as to its value regardless of any showing of special knowledge as to its value.

Trode v. Omnetics, Inc. Testimony as to the value of property is admissible if based on ownership coupled with experience in the business. Fassett v. Fassett , A. In a matrimonial action, a spouse may testify to the value of household goods based on familiarity with their cost. Soto v. Lay testimony concerning the speed of a vehicle is admissible if it is clear that it is a lay opinion and a proper foundation is laid.

It is well settled that once a proper foundation is laid, a lay witness will be permitted to testify as to the estimated speed of an automobile based on the prevalence of automobiles in our society. Sweeney v. The court approved testimony by a lay witness that a vehicle was traveling 60 to 70 m. Swoboda v. We Try Harder, Inc. Though a witness may testify to the estimated speed of an automobile, such lay opinion requires some foundational evidence of knowledge and experience.

Callaghan v. Giuffre , 44 A. Part time police officers may testify, as lay witnesses, to the speed of a motorcycle before an accident. A lay witness may determine whether an individual has consumed too much alcohol to operate a motor vehicle. Rivera v. In this vehicular collision case, a lay witness was permitted to give his opinion of intoxication based on conduct including exceeding the speed limit and failing to heed traffic signals. Allan v. Keystone Nineties, Inc.

Grozdalski , A. Schwartz v. Rosenthal , A. Police officer who was present shortly after an accident could testify as to the position of vehicles at the time of impact and thereafter.

Water Wheel Inn, Inc. Exchange Ins. Company , A. In an action to recover the proceeds of a fire insurance policy, witnesses could not testify whether, in their opinion the president of the corporation was innocent of arson. Such testimony would determine the ultimate issue in the case and usurp the function of the jury. Andersen v. Park Centre Associates , A. Lay person could testify to the existence of a leak in a ceiling for a period of time based on an observation that the ceiling had a yellow brown stain.

Hitchcock v. Mead v. Reilly, A. Hartley v. Szadkowski , 32 A. Dougherty v. Braddock Automatic Music Corp. In general, a lay witness may not give evidence concerning the state of mind of another person, such as motive, knowledge, intent, or emotional state. Bogart v. City of New York , N. Travi s, A. In addition, a lay witness may testify to his or her own intent or state of mind when material. Brezinski v.

Brezinski , 84 A. Cuba , 25 A. Luther , N. Once the jury hears the answer, even if the court strikes it, it may still be damaging. If the court overrules your objection, use cross-examination to cast doubt on the validity or weight of the opinion. If the question is improper, withdraw it and attempt to elicit the information through testimony about observations and descriptions of conduct.

Grossjahann v. Williams , 29 A. She was also the Mass Torts Judge in charge of all New York City asbestos personal injury and New York Statesilicone gel breast implant, latex glove, and diet drug cases. She is the author of New York Objections , from which this article is excerpted.

Creative Marketing Ideas for Law Firms. Effective Law Firm Marketing Agencies. Law Firm Referral Marketing vs. SEO vs. Cases Spampinato v. Counsel is asking leading questions [or] Counsel is leading the witness. Comments Definition A leading question is one that is framed to suggest the answer the questioner wants or expects from the witness.

The following types of questions are the most likely to prompt a leading objection: Long questions. Questions that assume facts not in evidence. Questions containing factual material and therefore that suggest an answer. When allowed Ordinarily, leading questions are prohibited on direct examination, People v. Exceptions to rule Exceptions to the prohibition on asking leading questions include the following: Direct examination on preliminary matters for purposes of moving expeditiously to the main issues in the case.

Direct examination of people who might otherwise be unable to testify, such as: Children. Objections can also be made when counsel anticipates that something objectionable is about to be stated by the witness.

For example, if a question from examining counsel asks the witness to provide information that is privileged or subject to a protective order, opposing counsel can object before the witness provides the answer.

Objections can be placed into two categories: those that object to the form of the question and those that object to the substance of the question. Form objections include that the question leads the witness while substantive objections include that the question calls for privileged information. Objections can also specific, general or continuing. The objecting party must state the basis for the objection under the rules of evidence to preserve the right to appeal if the objection is overruled and the information is admitted into evidence.

The rules of objections are comparable whether at trial or deposition, although the standards of evidence are different. For example, hearsay is not admissible at trial, while it is discoverable. In addition, objections at the taking of a deposition can become confusing because the testimony is not taken in a courtroom. Therefore, a judge is not immediately available to sustain or overrule objections. For this reason, special procedures apply.

According to the Federal Rules of Civil Procedure, there are two significant ways that objecting at depositions is different from objecting to courtroom testimony. First, although parties object at depositions, evidence is taken despite objections the deponent answers the objected to question. Objections are noted on the record and the examination continues. The court determines the admissibility of the testimony or evidence later. The only exceptions where the evidence will not be taken subject to the objection are when:.

Second, there are two types of objections that must be made at the deposition or they are waived. The first are objections as to privileged information and the second is objections that could have been cured at the deposition without the assistance of a judge. Conversely, at trial, most objections are waived if not made in a timely manner. For example, generally objections as to the form of the question — for example, if the question is repetitive or confusing — are waived if they are not objected to at the deposition.

If the party objects at the deposition, the question can be amended, and the issue would easily be resolved without the assistance of a judge. In contrast, it is generally more difficult for the parties to resolve objections to the substance — the information sought by the question — without the help of a judge.

Instead, these types of objections are generally preserved for trial whether they are raised at the deposition or not. Either way, if the objection could have been resolved by the parties at the deposition without the assistance of a judge but the objection was not made, then the objection is waived.

Except to the extent permitted by CPLR Rule or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning. Added Part Oct. 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.