Most cases are not tried. The overwhelming majority either settle, end by dismissal or are withdrawn or die through some form of capitulation. Key depositions frequently help shape the nature of the end game. It is not only what the deponents say but how they say it, the credibility calculus, that is informative. In settlement scenarios pretrial testimony can translate into real dollars, often many of them, because the litigants' perceptions of the strength of their respective positions move from the realm of guesswork or subjective belief to a form of objective reality. The contours of the case become better defined and the threat level to each side is far more discernible. Risk evaluations can proceed with more confidence. And when the end game is a trial, the importance of deposition testimony is even more self-evident. Thus, if sound litigation advice were reduced to a kind of "Ten Commandments" format, surely excellent deposition preparation and practice would be one of them. Violation of such a commandment truly would be a "sin." Deposition 'Sins' Notwithstanding such priorities, it is therefore surprising how critical deposition "sins" will occur so ubiquitously. Time after time, busy counsel demanding the deposition will be ill-prepared, perhaps grabbing the file the night before and giving it only a cursory once-over. Or a junior lawyer may hurriedly be sent, also without solid preparation time, and, now, even without the experience to make a real go of it. On the other hand, it may be the lawyer "defending" the key witness who is ill-prepared, perhaps never even having met the deponent until they talk over the proverbial cup of coffee an hour before the deposition, if at all. Any number of distractions or derelictions can result in less-than-optimal pretrial testimony. If such generalized, doomsday admonitions do not stimulate atonement for past inattention and invigorate more alert deposition practice in the future, then let's get a bit more specific about one particular way a deposition can do one litigant in and put the other on a firm path towards obtaining summary judgment. By becoming familiar with this not-hidden yet little-regarded scenario, involving a rule or doctrine firmly grounded in state and federal court practice, the well-prepared deposition-taker can try to structure key witness statements to maximal advantage and successfully resist the deponent's later attempt to "correct" the testimony. At the same time, equipped with sensitivity to the rule or doctrine, the "defender" of the deposition witness can try to better prepare against catastrophic consequences. None of such tactical preparedness by one side or the other can, or should, be used to circumvent the duty to give truthful testimony. The deposition witness is sworn to tell the truth and an attorney who counsels a witness otherwise courts professional disaster. Nevertheless, it is axiomatic that good deposition preparation is critical and that familiarity with how a deposition statement can cut a litigant down, even if that testimony is later recanted or altered, is part and parcel of that preparation. 'Feigned Issue' Rule The scenario referred to is often called the "feigned issue" rule in New York state courts and the "sham affidavit" doctrine in federal courts. Chiefly, it consists of the following ingredients: The party or witness testifies to certain key or pivotal facts during his or her deposition or, perhaps, says, "I don't remember what happened." Then, the adverse party, relying on such testimony, usually along with other evidence, moves for summary judgment. To oppose the motion, the deponent submits an affidavit changing or "correcting" the prior deposition testimony or, alternatively perhaps, submits an affidavit by a third person that contradicts the key deposition statements. This new version, it is asserted, creates an issue of fact requiring denial of summary judgment. State and federal courts have articulated rather strong reactions to such attempts to change deposition testimony via post-hoc affidavits crafted by lawyers bent on "correcting" the record. The courts have fashioned a rule or doctrine that treats the contradiction raised by the affidavit as a feigned or sham issue insufficient to defeat a properly supported motion for summary judgment. Illustrating the rule in action on the state side is a cluster of relatively simple slip-and-fall cases.1 For example, in Baxter v. Jackson Terrace Assoc., LLC,2 plaintiff fell down the stairs in her apartment building. At her deposition she said her foot became stuck in a sticky, gooey substance causing the fall. In opposition to a motion for summary judgment, however, she alleged for the first time that she fell because of garbage on the steps. The Appellate Division, Second Department, reversed a trial court's denial of the motion since the new allegation "was insufficient to raise a triable issue of fact because it was clearly an attempt to avoid the consequences of her deposition testimony by raising a feigned factual issue." Sometimes, the affidavit asserting the change is sought to be bolstered by an expert's opinion or other evidence. In Amaya v. Denihan Ownership Co.,3 plaintiff was deposed and said that he slipped during a rainstorm and fell on a wet platform where there were puddles. In response to defendant's motion for summary judgment, however, plaintiff's affidavit alleged for the first time that he slipped and fell due to structural defects in the platform. An engineer's affidavit also was submitted but this contained speculative, conclusory assertions as to the alleged defects and, therefore, was given no probative effect. The plaintiff's affidavit was apparently "tailored to dovetail with the expert's affidavit and to avoid the thrust of plaintiff's deposition testimony." An affidavit contradicting prior sworn testimony "creates only a feigned issue of fact" and therefore could not defeat the sound motion for summary judgment. Similarly, affidavits "clearly designed to avoid the consequences" of earlier testimony are not credited, as when plaintiff first testified she had no difficulty seeing a flower bed creating an elevation differential but later averred that the accident was caused by inadequate illumination.4 Sometimes, when the later affidavit conflicts with the prior deposition and leaves two equally reasonable alternatives, one of which clears the defendant of responsibility, summary judgment also must issue.5 The contradiction need not be direct or stark. Thus, deposition testimony that plaintiff did not know what caused him to fall and that he could not eliminate the possibility that he slipped on snow and ice, could not be cured by an affidavit specifically identifying the debris on which he fell.6 Thus, even an "I don't know" or an "I don't remember" deposition answer could trigger the "feigned issue" rule and, further, perhaps create equally reasonable alternatives, one of which absolves the defendant. In such a case the defendant wins. 'Inherently Suspect' When a party neglects to correct deposition testimony timely and in the appropriate manner, then the affidavit crafted months or years later advancing markedly different statements appears to have been tailored by lawyers for tactical reasons. The Appellate Division, First Department, has said such later contradictions by affidavit are "unavailing" and "inherently suspect."7 Sometimes, a description of the facts or condition at the deposition that omits mentioning an important fact will overwhelm a later affidavit specifying details, as when prior testimony did not describe a puddle of water as dirty and gray and having footprints around it but the later affidavit did.8 A particularly detailed discussion of the "feigned issue" rule's operation is seen in Branham v. Loews Orpheum Cinemas, Inc.,9 prompting a dissenting opinion in the Appellate Division, First Department, panel. A theater patron left her seat to use the restroom and testified in her deposition that she saw no one in the aisle and was gone only seven or eight minutes. There was no line in the restroom and she did not stop anywhere else. Upon returning, however, she stumbled and fell over something which she later discovered was a 10-year-old boy. Relying on plaintiff's deposition testimony, defendant theater moved for summary judgment, urging that the facts and time frame did not present defendant with adequate notice of a dangerous condition. Opposing the motion, plaintiff then submitted her friend's affidavit stating that the friend had gone to the restroom prior to plaintiff and that the boy was in the aisle at that time and, further, mentioning various time-related factors suggesting that the boy was there much longer than several minutes. In reply, defendant argued that the friend's affidavit was inconsistent with plaintiff's deposition testimony and was tailored to avoid summary judgment. A majority of the appellate panel agreed. Further, the friend's affidavit even raised "grave doubt" as to the affiant's credibility. "Courts have occasionally disregarded affidavits or other evidence . . . where they directly contradict the plaintiff's own version of the accident and are plainly tailored to avoid dismissal of the action." This was one of those rare occasions where even another person's affidavit must be disregarded as evidence. The dissenting Justice deemed the disregard of the friend's affidavit as "not defensible." The "feigned issue" rule, of course, transcends the slip-and-fall category. In Rosenberg v. Kotsek,10 an automobile and bicycle collided at an intersection. The defendant moved for summary judgment tendering evidence that plaintiff was negligent as a matter of law in failing to yield the right of way at the intersection. Plaintiff's affidavit contradicted his earlier deposition testimony and thus was not credited. It was "clearly designed to avoid the consequences of his earlier admissions." In Daisernia v. Thomas,11 a passenger in a car rear-ended by another vehicle testified in deposition that her complaints of injury were limited to her back injuries. Complaints related to her shoulder were not related to this car accident. Based on this testimony and other evidence, defendant moved for summary judgment because plaintiff had failed to meet the serious injury threshold. The court held that a self-serving affidavit later contradicting her deposition testimony about the shoulder injury did not create issues of fact warranting denial of the motion. In Ortiz v. Smith,12 plaintiff was a workman hired to sand and refinish wood floors in defendant's home. After plaintiff used a sealer on the basement floor, a fire occurred resulting in burns. The pilot light on the water heater had ignited the vapors. At his deposition plaintiff recounted various conversations he had with the defendant homeowners. None of these involved a discussion about the pilot lights. Over a year after the deposition, however, plaintiff submitted an affidavit that defendant homeowner told him the defendant would extinguish all pilot lights before plaintiff started work. This contradiction ("no conversation" versus an alleged conversation about pilot lights) could not stave off the summary judgment motion because it was "clearly designed to avoid the consequences of his earlier admissions." An interesting indicator of the "feigned issue" rule's strength is the pedestrian knockdown case of Abramov v. Miral Corp.13 Here the defendant driver was done in by his admission immediately following the accident, as recorded in the police accident report, that he had observed the pedestrian in the intersection but was unable to stop in time. The defendant's later affidavit asserting the accident occurred in the middle of the block and that plaintiff walked into the side of his vehicle was deemed a "belated attempt" to avoid the consequences of his earlier admission by raising a feigned issue. Thus, it was not even prior deposition testimony, but only an admission contained in a police report, that triggered the rule. The Appellate Division recently distinguished Abramov in a case where the defendant disputed the fact that he had made the admission attributed to him in the police report. The credibility of that assertion in the affidavit was deemed a triable issue.14 But that ruling seems to confirm the vitality of undisputed admissions recorded in police reports. Complex Litigation Although the foregoing scenarios seem rather simple, the rule's influence easily can be hypothesized in more complex litigation involving, say, products liability, medical malpractice or commercial disputes. So, for example, in an automobile crashworthiness case, a plaintiff who testifies that she did not wear her seat belt or who says she doesn't remember whether she did, may be precluded by the rule from relying on a later affidavit declaring she wore the belt. A plaintiff who testifies that she did not read the warnings on the product or in the owner's manual likely will be unable to defeat a summary judgment motion addressed to her warnings claim via a later affidavit claiming she did read the allegedly insufficient warnings. It is the policy imperatives behind the rule that give it force, not necessarily the nature of the case. Federal Approaches In federal courts the terminology used is different. It is sometimes called the "sham affidavit" rule or doctrine. A nice explanation of the rule's operation, key case law and policies justifying its dispositive effect is set forth in a recent decision by the U.S. Court of Appeals for the Third Circuit, Jiminez v. All American Rathskeller, Inc.15 The sham affidavit doctrine is a principle of summary judgment practice and has grown from a long line of court decisions. The Third Circuit traces its modern origin to the Second Circuit's "signal" decision in Perma Research Development Co. v. Singer Co.,16 where a contradictory affidavit failed to raise a genuine issue of material fact. The Second Circuit said, "[i]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact."17 Since Perma Research, every federal court of appeals has adopted some form of the sham affidavit doctrine.18 The rule has continued vitality and importance. A sham affidavit is a contradictory affidavit "that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment." The main practical reason supporting the doctrine is that prior depositions are more reliable than affidavits since the deponent was either cross-examined by opposing counsel or, at least, available for cross-examination. Depositions inherently have an increased level of reliability because they are adversarial in nature and provide opportunity for both direct and cross. Affidavits, on the other hand, are usually drafted by counsel whose familiarity with summary judgment procedure may render an affidavit less credible.19 Some circuit courts have adopted a particularly robust version of the rule, holding that, whenever a subsequent affidavit contradicts prior deposition testimony, it should be disregarded.20 The Third and Ninth circuits, however, have adopted a more flexible approach that not all contradictory affidavits are necessarily shams. So, for example, when independent evidence in the record bolsters an otherwise questionable affidavit, these courts have refused to disregard the affidavit. Similarly, if the affiant was "understandably" mistaken or confused, or not in possession of all facts prior to the deposition, these might be factors justifying flexibility. These courts may give the affiant an opportunity to offer a "satisfactory explanation" for the conflict. However, when the affiant does not explain the contradiction, even these courts hold it is appropriate for the district court to disregard the later affidavit and the alleged factual issue as a "sham."21 Whether it is the strict "feigned issue" rule under New York state practice or the sham affidavit doctrine under federal custom (whether the robustly strict or more flexible version), it is clear that deposition testimony should be considered serious business by all litigators. Cavalier or ho-hum treatment of what some may view as just another day at (or outside) the office can prove costly indeed. The careful, thoughtful lawyer will want to keep in mind that the key deposition testimony about to unfold will not easily be undone months or years down the road. Michael Hoenig is a member of Herzfeld & Rubin. Endnote: _________________________________________________________________________________________ 1. E.g., Baxter v. Jackson Terrace Assoc., LLC, 43 AD3d 968 (2d Dept.
2007);
Errett v. Great Neck Park Dist., 40 AD3d 1029 (2d Dept. 2007);
Yan Quan Wu v. City of N.Y., 42 AD3d 451 (2d Dept. 2007); Amaya v.
Denihan Ownership Co., 30 AD3d 327 (1st Dept. 2006);
Papoters v. 40-01 Northern Blvd. Corp., 11 AD3d 368 (1st Dept. 2004).
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