nycom 2001 public works school your day in court - preparing for testimony, depositions &...
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NYCOM 2001 Public Works School
Your Day in Court - Preparing for Your Day in Court - Preparing for Testimony, Depositions & Testimony, Depositions & Examinations Before TrailExaminations Before Trail
Andy Brick, NYCOM Counsel
Bob Bambino, New York Municipal Insurance Reciprocal
NYCOM 2000 Public Works School
Managing Highway Exposures:Managing Highway Exposures:
Methods to Control Highway-Related Methods to Control Highway-Related Claims Claims
and Litigationand Litigation
Robert Bambino
New York Municipal Insurance Reciprocal
NYCOM 2000 Public Works School
How often are Municipalities Sued because of
Highway and Road Accidents?
NYMIR averages 51 lawsuits a year resulting from road construction, maintenance or re-construction.
It is one of the leading causes of loss under the liability policy and the most common claim for roads & highways.
NYCOM 2000 Public Works School
The average cost per claim is approximately $16,000+
Doesn’t include the cost of loss productivity due to investigations, appearing at hearings, filling out forms, etc.
NYCOM 2000 Public Works School
Work Zone Accidents
Many lawsuits involve auto accidents that occur within the work zone- many after work has been finished. Injured parties are typically drivers and/or passengers; damage to vehicles.
Allegations include: failure to warn, improper/insufficient use of cones, signs, flagging, and inadequate guidance through the work zone. .
NYCOM 2000 Public Works School
Principles Regarding DutiesMunicipalities are not insurers of the safety of the roadsDuty is limited to maintaining roadways in a reasonably
safe condition for public travelTo establish negligence - plaintiff must prove the
existence of a defect on or adjacent to a road; defect is proximate cause of the accident
Municipal had notice and did not take remedial action within a reasonable period of time
NYCOM 2000 Public Works School
1998 Work Zone Fatalities
Raking State Construction Maintenance Utility Unknown Total#1 TX 125 0 0 0 125
#2 CA 55 6 1 6 68
#3 GA 63 2 0 3 68
#4 AZ 30 1 1 5 37
#5 IND 17 1 1 10 33
50 State
Average 13.1 1 .3 1 15.4
#10 NY 13 2 0 5 20
NYCOM 2000 Public Works School
Road Construction Facts - Injuries to WorkersFatalities
74% of all fatalities in SIC 1611 are due to the following hazards1. Pedestrian Workers Struck-by Traffic—23% 2. Pedestrian Workers Struck-by Work Zone Construction Vehicles—18% 3. Work Zone Vehicle Operator and Occupant Events (e.g. Rollovers)—18% 4. Highway Travel Traffic Accidents—15%
Serious Injuries
67% of the non-fatal serious injuries experienced by 20 road construction contractors were due to the following hazards:
1. Overexertions—27% 2. Falls—23% 3. Struck by other Objects (e.g. Tools, Materials, Parts of Equipment, and Trees)—17%
NYCOM 2000 Public Works School
Risk Management Suggestions
Follow existing work zone safety and warning. Inspect before and after work day.
Change plan as needed.Personal protective equipment for workers.Maintain warning during breaks. Secure sites at
end of day. Keep records.
NYCOM 2000 Public Works School
If an accident does occur:Get helpCooperate with policeSecure photosLook for witnessesRecord who was working at the timeRecord witnessesGive objective statements - not opinionReport accident to insurance agent
NYCOM 2000 Public Works School
QUESTIONS?
NYCOM 2000 Public Works School
Your Day in CourtYour Day in Court
Helpful Tips and InformationHelpful Tips and InformationAbout the Judicial ProcessAbout the Judicial Process
Andy Brick, NYCOM CounselAndy Brick, NYCOM Counsel
NYCOM 2000 Public Works School
SubpoenasSubpoenas
A subpoena is a judicial process whereby a witness is subjected to the jurisdiction of a court and required to give relevant information under penalty of perjury.
NYCOM 2000 Public Works School
Types of SubpoenasTypes of SubpoenasSubpoena ad testificandum- requires the attendance
of the named person to give testimony under oath.
Subpoena duces tecum- requires production of books, documents or other tangible things.
A person may comply with this type of subpoena by producing the items at the required time and location along with any person who is able to identify them and testify about their origin, purpose and custody.
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You should immediately inform your municipal attorney upon receipt of a subpoena, forward a copy, and follow his/her advice as to how to proceed.
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Examinations Before TrialExaminations Before Trial
(Commonly known as “EBTs” or “Depositions.”)Oral Depositions- A party to an action may be
required to give an oral deposition under oath. Written notice must be given at least twenty days in advance. The notice need not state the specific areas of inquiry upon which the person will be questioned.
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EBT’s - ContinuedEBT’s - Continued
Written Depositions- A party may also
depose another by submitting written
questions to be asked of the deponent if the
examining party and the deponent stipulate
to utilizing written questions.
NYCOM 2000 Public Works School
E.B.T. ProcedureE.B.T. Procedure Deposition is to take place in office of the
municipality’s attorney unless otherwise stipulated by the parties
Depositions are taken before a person authorized to administer oaths
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Deposition may be recorded stenographically or by audio or video tape
Deponent is swornExamination and cross-examination are
permitted
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Objections to the form of a question must be made immediately
Other objections may be made subsequent to the completion of the deposition
Stop testifying if an objection is made and wait until your attorney directs you to proceed
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Testimony must be transcribed and submitted to the deponent
Deponent may make changes at the end of the transcript
Deponent signs transcript before an officer authorized to administer oaths
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E.B.T. TipsE.B.T. TipsYou should always have your attorney
present when you are deposedFollow your attorney’s directionBring any documents or other items
required by the EBT notice or subpoena
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Take a moment to form and phrase an answer before responding to a question
Speak slowly and clearly to ensure clarity in the transcript
Answer truthfully, if you are unable to answer a question, say so
Avoid conjecture or guessing, stick to facts that you know
Stay relaxed
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Trial TestimonyTrial TestimonyTypes of Witnesses
Favorable WitnessCalled by your attorney
Indifferent WitnessCalled by any party
Hostile WitnessCalled by adverse party
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Types of TestimonyTypes of Testimony
Authentication of Documents Subpoena duces tecum
Lay TestimonyBased on personal knowledge or observation
Expert TestimonyBased upon expertise related to the matter about
which you will testify
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Trial ProcedureTrial ProcedureAdministering the oathDirect Examination
Conducted by attorney for party who required your presence
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Cross ExaminationConducted by attorneys for parties other
than one which required your presence
Re-Direct & Re-CrossDismissal or required to remain
available
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Tips for Testifying EffectivelyTips for Testifying EffectivelyConsult with your attorney before your court
appearanceStay relaxedBe respectfulTake a moment to form and phrase an answer
before responding to a question
Speak slowly, clearly and with sufficient volume
NYCOM 2000 Public Works School
Refer to documents or notes if needed (consult with your attorney beforehand if you want to refer to documents on the stand)
If you don’t understand a question, say soIf you don’t know an answer say soStop testifying if an objection is made and wait until the
Judge allows your testimony to proceedAnswer questions to the best of your knowledge based
upon facts you know; don’t guess or speculate unless asked to do so
NYCOM 2000 Public Works School
Questions ?