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The New York court system has issued new rules to curb lawyer abuses in the handling of depositions. Other new rules authorize judges to require representatives of insurance companies to participate in settlement conferences and restrict the circumstances in which judges can issue temporary restraining orders on an ex parte basis. The rules take effect on Oct. 1. The deposition standard seeks to bar attorneys from coaching witnesses by making lengthy “speaking objections” in which they suggest an answer to an adversary’s question. They also limit situations in which attorneys may stop a deposition and instruct the witness not to answer a question. The rules embrace “cardinal principles that are abused all the time,” said George F. Carpinello, the chairman of the Chief Administrative Judge’s Advisory Committee on Civil Practice. “Lawyers who know better take liberties at depositions to gain a tactical advantage,” said Carpinello, a partner at Boies Schiller & Flexner in Albany. To combat that problem, he said, Chief Administrative Judge Jonathan Lippman had taken the advisory committee’s recommendations and issued “a common sense rule” that sets the parameters for depositions “in black and white.” The existence of clear rules, he added, should enable attorneys to curb improper practices by adversaries without having to call for the intervention of judges as often as they do now. The deposition rules are aimed at “significant abuses that have obstructed the clean development of testimony,” said Mark C. Zauderer, a member of the advisory committee and head of a commission appointed in 2003 by Chief Judge Judith S. Kaye to study the jury system in New York. Under the rules, 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.” To deter the cessation of questioning on what Zauderer called a “frivolous basis,” attorneys will be required to instruct witnesses to remain silent to provide “clear and succinct” statements on the record of the reason the instruction is being given. Attorneys will only be permitted to interrupt a deposition when the questioning veers into one of the prohibited areas. And as is the case when instructing a witness not to answer, a new requirement specifies that, before interrupting a deposition, an attorney will have to “clearly and succinctly” state the reason for intervening. SETTLEMENT CONFERENCES Empowering judges to order insurance company representatives to participate in settlement conferences is an effort to stop insurers from waiting until jury selection is completed before they come forward with their best offer, said Zauderer. “By not giving meaningful settlement authority to their representatives until they see the whites of [the jurors'] eyes,” he said, “some insurance companies, who are the deep pockets in many cases, waste judicial time and abuse the jury system.” John J. McDonough, a past president of the Defense Association of New York, a group of lawyers that defend tort cases, praised the new rule as a way of conserving court resources. He noted though that demands for insurer participation in settlement conferences have produced “mixed results” in the past. Some insurance companies, he said, have publicly embraced a policy of announcing early in a case “a best and last offer” and sticking with it through trial if the offer is not accepted. But other insurers, even when they voluntarily send a representative to court, will not send someone with authority to offer a high enough figure to settle a case until after the jury is selected, added McDonough, a partner at Cozen O’Connor. McDonough also questioned whether New York judges have jurisdiction to order the participation of insurance adjusters who may be located in other states. Carpinello, however, said that the advisory committee, after “a very careful” examination, concluded that the courts could order insurance representatives to take part in settlement conferences because the new ruling was “filling in a gap in the Civil Practice Law and Rules, rather than contradicting them.” The rules will empower judges to compel the participation of parties and others who have an interest in the outcome of litigation, such as the holders of liens on an award. Judges are given the option of allowing participation over the telephone. ‘RIFE WITH ABUSES’ The rule barring a party from seeking ex parte relief absent a showing of “significant prejudice” is designed to bring New York practice in line with that of the federal courts and many other states, said Zauderer. The state’s practice of allowing attorneys to routinely request restraining orders without notifying their adversaries has been “rife with abuses,” he said. “Even the most honest lawyer will not always present all the facts relevant to the extraordinary relief of a restraining order,” Zauderer said. When only one side appears, “the judge does not get the whole story — there are always two sides,” he said. Under the rule, judges will be barred from granting restraining orders unless a party demonstrates a significant reason why an adversary must be kept in the dark. For instance, Carpinello said that an ex parte order would be justified where a request is being made to restrain funds and there is a likelihood that notice of the application would lead an adversary to secrete the funds before an order could be obtained. Similarly, an ex parte order would be appropriate where a party is seeking to restrain the demolition of a building and notice would likely lead to the destruction of the building, said Carpinello. A new procedure will be established for situations where a party cannot justify obtaining an ex parte order. Instead of proceeding ex parte, lawyers will, at a minimum, advise their adversaries of the time and place they will be asking for a restraining order. The rule does not specify how much advance notice will be required but says it must be “sufficient” to allow opposition.

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