Should Attorneys Cross Examine Their Own Clients At Deposition? (NY)
While probably not a tool used, even considered, nearly enough, a lawyer questioning his or her client during a deposition can be a great way to clarify facts and set things up for anticipated motion practice. The words from the 1973 song Ooh La La by Faces seem appropriate, “I wish that I knew what I know now…” when my client was deposed.
Rule 3113 of the CPLR frames the complete context of a deposition. At section (c) thereof, it reads that a “deponent may be cross-examined by his or her own attorney” when that party is deposed “at the instance of an adverse party.” See CPLR 3113(c). The rule goes on to further read that this cross-examination of a lawyer’s own client “need not be limited to the subject matter of the examination in chief.” Id.
New York courts, in looking at this section of CPLR, have pointed out that a deponent’s lawyer is accorded a broader scope of inquiry during such circumstances and the questions are not limited to the subject matter of the examination in chief. See Orner v. Mount Sinai Hosp., 305 A.D.2d 307, 761 N.Y.S.2d 603 (1st Dep’t 2003). This scope is so broad, that in defending the deposition, virtually all objections should be withheld save those as to form. In fact, under Part 221 of the Uniform Rules for the Trial Courts, “Uniform Rules for the Conduct of Depositions,” objections at a deposition essentially ought to relate to the form objection. See 22 NYCRR § 221.1(a).
So, if a client did not get the facts across as clearly or advantageously as possible, attorneys should consider cross examining their own clients pursuant to CPLR 3113(c) to mitigate any negative impact and buttress the case.
Please e-mail John Diffley with any questions.