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Many aspects and doctrines of attorney malpractice arise from medical malpractice practice. “Continuous representation,” [FOOTNOTE 1] is one well-known example; the rules for deposing a defendant attorney in his own case is another. [FOOTNOTE 2] In both medical malpractice and legal malpractice, professionals are the defendants. In both cases, expert testimony on the standard of care and evidence that defendant has departed from that standard is required on plaintiff’s prima facie case. These elements may be proved through any admissible testimony, and there are different methods of producing that proof. In both, however, only a professional in the same discipline may testify about departures from good and accepted practice. The words of the defendant can be part of that proof and are a powerful source. All too often, attorney defendants are directed not to answer questions put to them on the basis of Carvalho v. New Rochelle Hosp., 53 AD2d 635 (2d Dept, 1976) This article sets forth the statutory basis for deposition questions to the attorney-defendant, the parameters of such questioning and the use to which the deposition may be put. DEFENDANT’S DEPOSITION Detailed deposition of the attorney defendant is required in order to set the stage. The defendant attorney must reveal the scope of the retainer, the work to be performed, the evidence available to him, his analysis of the pertinent facts, viability of the underlying case, [FOOTNOTE 3] the contents of his file, his billing, the papers he created or prepared, what filings were made with the court, what investigation was undertaken, what discovery was undertaken, what evidence was produced, what was done to prod the other side in discovery and the transcripts and content of depositions and demands. The deposition should reveal the situation at start of case, what elements were required in the underlying case, the party’s position and the subsequent actions of the defendant attorney. Defense counsel in attorney malpractice cases are especially keen in defending their knowledgeable clients who are more acutely interested in protecting themselves and their perceived right not to answer questions, than are the general lay public. Successful questioning of the defendant in either medical malpractice or legal malpractice actions at the deposition stage should lead to admissible evidence to be used against the defendant. This evidence may be divided into two categories. The first is composed of the basic building blocks: the facts of the underlying case, the course of the underlying case litigation and the course of client-attorney interaction. The second category is an analysis of the standard of care by a practitioner in that specific instance and whether the defendant attorney lived up to that standard. There is a tension, however, which revolves around the question of expert disclosure, questioning of an “expert,” special needs and the fact that this “expert” is a party to the action. PROFESSIONAL DEFENDANTS In medical malpractice actions, a defendant physician may be called and questioned “both as to his factual knowledge of the case … and if he be qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community.” [FOOTNOTE 4] What has not been permitted to date are questions that “bear solely on the alleged negligence of the codefendant and not on the practice of the witness.” [FOOTNOTE 5] The divergence between questions that seek an expert opinion of the witness and objections that the questions “bear solely” on the codefendant are cogently analyzed in medical malpractice by regular New York Law Journal columnists Thomas Moore and Matthew Gaier. [FOOTNOTE 6] In attorney malpractice, it is the obligation of the plaintiff to demonstrate that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, that the attorney’s breach of professional duty caused plaintiff’s actual damages and that “but for” the breach of professional duty, the plaintiff would have had a better or different outcome. [FOOTNOTE 7] It is this first question that primarily engages the attention of an “expert” in attorney malpractice. The expert’s testimony at trial usually starts with his background and experience, goes on to qualification questions and, once qualified, the witness is asked whether with a reasonable degree of legal certainty, there was a deviation from good and accepted practice by the defendant in his representation of the plaintiff. As would be expected, plaintiff’s witness testifies that there was a deviation from good and accepted practice, while defendant’s witness testifies either that there was no deviation or that if a deviation occurred, there was no proximate connection with the outcome. How much more cogent would defendant’s own deposition testimony be at the trial on the question of deviation? DISCLOSURE, DEPOSITIONS This article discusses depositions. Trials are another matter altogether. [FOOTNOTE 8] In New York, deposition rules are different for parties, nonparties and experts. Within the meaning of the Civil Practice Law and Rules (CPLR), experts are a “person whom the party expects to call as an expert witness at trial … .” [FOOTNOTE 9] Attorney defendants should and may be deposed both as a fact witness and as an expert. There is little controversy over the “fact witness” portion of a deposition. In that portion, the attorney should be taken through the entire attorney-client interaction. Questions of deposition strategy will dictate whether to proceed in a timeline or to jump around. In either case, it is important to obtain the attorney defendant’s story of retention through termination and to have the attorney set forth conversations, claims in the underlying case, specific litigation events as well as a narration of the course of the case. The defendant attorney should also be deposed as an expert in law, seeking testimony on the viability of the underlying claim, remedies available to plaintiff in the underlying claim, likelihood of success of various procedures taken in the underlying case, the standard of representation, whether specific acts of the defendant attorney were within the standard of representation or were a deviation and whether certain omitted acts were either permissible or a deviation. The dual role of the attorney defendant creates a problem. He is a defendant, but moreover, an expert. Generally, expert witnesses may not be deposed except by “court order upon a showing of special circumstances and subject to restrictions as to scope and provisions concerning fees and expenses … .” [FOOTNOTE 10] Nonparties may be deposed upon “notice, stating the circumstances or reasons such disclosure is sought or required.” [FOOTNOTE 11] However, when the witness is a party, including, of course, a defendant attorney, disclosure is governed by CPLR 3101(a). [FOOTNOTE 12] “The scope of disclosure for employees of a party whether noticed as experts or not, is defined by CPLR 3101(a), rather than CPLR 3101(d), which govern the extent of disclosure in instances where non-employee expert witnesses are involved.” Patently, a party falls even closer to CPLR 3101 than does an employee of a party. Parties and their employees may be required to answer questions as an expert in the area in which they are employed. Even when the employee is the party’s noticed expert he is subject to deposition under CPLR 3201(a) as to opinion testimony. Again citing McDermott, supra, the Appellate Division, 1st Department determined that the employee was subject to questions without restriction as to opinion testimony. “The special circumstances requirement of CPLR 3101(d) does not apply to an expert who is an employee of a party.” [FOOTNOTE 13] DEFENDANT ATTORNEYS The issue of deposition questions seeking expert opinions in an attorney malpractice action was answered in 1993 in Lingener v. Maynard, O’Connon & Smith, 195 AD2d 838 [3d Dept 1993]. Plaintiff in the attorney malpractice action was a defendant in the underlying automobile accident case. Plaintiff had a $50,000 insurance policy and was assigned the defendant law firm as his defense counsel by State Farm Insurance Co. In the wrongful death trial, the estate attempted to settle the matter within the policy limits. Insurance company refused to settle at an amount within policy limits, and a jury awarded $910,000 against plaintiff. On appeal that amount was reduced to $375,000. Plaintiff commenced an action against his attorneys and against State Farm [FOOTNOTE 14] alleging bad faith and against his defense counsel alleging malpractice. At the deposition of an attorney from defendant’s firm who had worked on the case, plaintiff asked questions concerning her opinion regarding proper legal standards and procedures. “In our view, plaintiff is entitled to inquire into the facts and criteria upon which defendant’s determination refusing the offer to settle within policy limits was made to seek defendant’s expert testimony on other issues that bear on the controversy, without first demonstrating the inability to procure an expert.” UNDERLYING RATIONALE A defendant in a civil action, whether attorney or doctor, has no inherent right to remain silent or to answer only those inquiries that will have no adverse effect on his case. [FOOTNOTE 15] A witness must respond to virtually all questions aimed at eliciting information relevant to the issues, even though his testimony on such matters may aid plaintiff. [FOOTNOTE 16] In medical malpractice actions, a plaintiff is entitled to call the defendant doctor to the stand and question him on his factual knowledge of the case (the examination, diagnosis, treatment) and, if he is qualified, as an expert for the purpose of establishing the generally accepted practice in the community. When the issue of whether defendant’s act was generally accepted is not within the competence of a lay jury, plaintiff must come forward with expert testimony to support allegations of malpractice. [FOOTNOTE 17] In the area of medical malpractice, the seminal case of McDermott held that the doctor’s knowledge of proper standards and potential awareness of deviation from that standard are “facts,” in the same way that his examination and the treatment are “facts.” Questioning the defendant doctor is “to permit the production in each case of all pertinent and relevant evidence that is available.” The Court of Appeals found nothing “unfair.” Justice Stanley Fuld did not agree with the suggestion that it was unsporting or inconsistent within the adversarial system to allow a party to prove his case through an opponent’s testimony. CONCLUSION In attorney malpractice litigation, at defendant’s deposition, plaintiff should and must elicit all the facts of the representation, as well as expert opinion on the standard of representation, and whether any specific acts were deviations from that practice. Questions to the defendant attorney are permitted under current law, and defendant may not hide behind a Carvalho objection. Andrew Lavoott Bluestone is a solo practitioner in New York City, concentrating in legal malpractice litigation. ::::FOOTNOTES:::: FN1 Glamm v. Allen, 57 N.Y.2d 87 [1982]; Shumsky v. Eisensein, 96 N.Y.2d 164 [2001] FN2 McDermott v. Manhattan Eye, Ear & Throat Hosp. 15 N.Y.2d 20 [1964]. FN3 Romanian American Interest, Inc. v. Scher, 94 A.D.2d 549 (2d Dept 1983) FN4 McDermott, supra at 29-30. FN5 Carvalho v. New Rochelle Hosp., 53 AD2d 635 (2d Dept. 1976) FN6 See: Moore, “The ‘Carvalho’ Question”, Medical Malpractice, NYLJ, May 5, 1995, p.3; Moore & Gaier, “Defendant Depositions and ‘Carvalho’ Revisited,” Medical Malpractice, NYLJ, Jan 7, 2003, p.3; Moore & Gaier, “Time to Overrule ‘Carvalho’ as Hiding Place for Defendants,” NYLJ, August 2, 2005, p.3. FN7 Carmel v. Lunney, 70 N.Y.2d 169 (1987) FN8 Giventer v. Rementeria, 181 Misc2d 582 (Sup Ct. Richmond Co. 1999) FN9 See, CPLR 3101(d) FN10 CPLR 3101 (d)(iii) FN11 CPLR 3101(4) FN12 Lippel v. City of New York, 281 A.D.2d 327 (2001) FN13 Glasburgh v. The Port Authority of New York and New Jersey, 213 A.D.2d 196, (1st Dept 1995) FN14 Lingerer v. State Farm Mutual Automobile Insurance Co., 195 A.D.2d 838 [3d Dept 1993]. FN15 McDermott, supra FN16 CPLR 4501; Richardson, Evidence [9th ed.], �523; Wilson v. Metalcraft of Mayville, Inc., 13 AD3 794 (3d Dept 2004) FN17 Meiselman v. Crown Heights Hosp., 285 N.Y. 389 (1941)

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