NYCOM 2001 Public Works School Your Day in Court - Preparing for Testimony, Depositions & Examinations Before Trail Andy Brick, NYCOM Counsel Bob Bambino,

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


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


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.


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.


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. .


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


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


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%


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.


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


QUESTIONS?


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


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.


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.


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.


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.


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.


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


Deposition may be recorded stenographically or by audio or video tape

Deponent is swornExamination and cross-examination are

permitted


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


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


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


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


Trial TestimonyTrial TestimonyTypes of Witnesses

Favorable WitnessCalled by your attorney

Indifferent WitnessCalled by any party

Hostile WitnessCalled by adverse party


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


Trial ProcedureTrial ProcedureAdministering the oathDirect Examination

Conducted by attorney for party who required your presence


Cross ExaminationConducted by attorneys for parties other

than one which required your presence

Re-Direct & Re-CrossDismissal or required to remain

available


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


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


Questions ?