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11 Cards in this Set
- Front
- Back
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Can an expert witness be deposed?
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NO- unlike fed practice and 44 other states, NY does not allow depositions (exam before trial "EBT") for Expert Witnesses
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Must disclose the Expert Witness'
IQ SOS |
I - IDENTITY - except in medmal
Q - QUALIFICATIONS S - SUBJECT MATTER on which expert will testify O - expert's OPINION S - basic overall SUMMARY of the grounds that form the basis of that opinion |
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Certain material is NOT discoverable under CPLR article 31?
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1. evidence protected by a privilege if raised (SIR P CHAMP)
2. PAIDMAID discovery in a divorce action 3. attorney work product (subjective analysis, trial strategy, mental impressions, conclusions, opinions, etc) 4. material prepared in anticipation of litigation unless: a. cannot be duplicated without undue hardship b. the opposing party has a substantial need for that material in order to prepare for trial c. withholding it would result in hardship to the other party |
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What is discoverable?
(PAID MAID) |
P – PHYSICAL exam
A – Request for ADMISSIONS I – Written INTERROGATORIES D – DEPOSITIONS (a.k.a. EBTs – “examinations before trial”) M – MENTAL exam A – Demand for ADDRESSES I – INSPECTION of evidence D – DISCOVERY of evidence (“Discovery & Inspection”) |
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RULE - a court order is required for the following EBTs (BAR SAPS)
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B - BEFORE commencement action (this is a special proceeding needs its own index number)
A - AFTER a case is placed on the trial calendar- requires unusual or unanticipated circumstance. R - a party's REFUSAL to comply with an EBT demand. S - SPECIAL proceedings, except a notice to admit or demand for bill of particulars (AID) A - ARBITRATION which requires extraordinary circumstance - stay out of court! P - PRISONERS S - STATE of NY when the state is a non-party. |
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An atty is allowed to advise a client not to answer A CLAM BAR questions
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A - ambiguous
C - compound questions L - LEADING questions on direct (except for HAIRY witness) A - ARGUMENTATIVE and badgering question which seeks no new facts M - MISQUOTING an earlier statement of a witness B - overly BROAD question A - a question that ASSUMES a fact not yet in evidence R - REDUNDANT question on direct exam (was asked and answered) |
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In a personal injury action, P should always demand to see if there are any WAIFS
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W – Identities of WITNESSES (but not their statements), or the disclosure
of expert witnesses (I.Q. S.O.S.) A – ACCIDENT reports prepared in the regular course of business I – liability INSURANCE policies F – FILMS, videos, or audio tapes taken of the plaintiff S – STATEMENTS made by the plaintiff |
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Protective orders seek to prevent unreasonable DEEP abuses of discovery procedure:
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D – DISADVANTAGE
E – EMBARASSMENT E – EXPENSE (especially where there is economic disparity between the parties) P – PREJUDICE |
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There’s a (BAN) on Interrogatories:
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B – BILL of Particulars & Interrogatories can’t both be demanded (except matrimonial)
A – Can't demand interrogatories until after ANSWER has expired N – Where NEGLIGENCE is sole basis of P’s claim, Interrogatories OR EBT’s (NOT BOTH) |
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(DRIPS) are a discovery punishment:
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D – DISMISSING an action against P or ordering a default judgment against D
R – RESOLVING issues against a non-disclosing party I – IMPOSING attorney’s fees & punitive sanctions against non-disclosing party I – An adverse INFERENCE jury charge P – PRECLUDING that party from offering evidence on certain issues S – STRIKING that party’s pleading or any part thereof |
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A court will not interfere with an arbitration award unless it finds (FABLES):
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F – FRAUD, misconduct, or corruption
A – ARTICLE 75 procedures were not followed B – BIAS L – The award LACKED rationality E – The arbitrator EXCEEDED her authority S – SERVICE of the notice to arbitrate was improper |
