"The witness is not here as an expert!" is an objection heard at depositions. The distinction between "fact" witnesses and "expert" witnesses is critical. Fact witnesses are permitted to testify to their sense-impressions. What they saw, heard, felt, tasted or smelled are all fodder for examination, but their predictions on future events or answers to hypothetical questions are not. Experts, on the other hand are there to make predictions on future events, or render "opinions" as they are otherwise called.

The genesis of professional negligence law from biblical times led to the twinning of medical and legal malpractice rules and practice. Legal Malpractice rules arise from the slightly earlier medical malpractice principles. "Continuous representation," is one well-known example. Glamm v. Allen, 57 N.Y.2d 87 (1982); Shumsky v. Eisensein, 96 N.Y.2d 164 (2001). Immunity for strategic choice is another. Rosner v. Paley, 65 N.Y.2d 736 (1985). The absolute need for expert testimony in support of liability against the professional is a third. Sherman v. Ansell, 207 A.D.2d 537 (2d Dept. 1994).

In both medical malpractice and legal malpractice, the defendants are professionals. 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 proven through admissible testimony with 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.

Not well understood, even among practitioners in the professional negligence bar is the right and ability to require a defendant in a professional negligence case to render expert testimony, including answers to hypothetical questions concerning the negligence allegations in that case. McDermott v. Manhattan Eye, Ear & Throat Hosp., 15 N.Y.2d 20 (1964). 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 A.D.2d 635, 635 (2d Dept. 1976) or upon a common law notion that a witness not the subject of an expert CPLR 3101 notice may not be required to offer an opinion or to answer hypothetical questions as is an expert at trial.

These issues come up at deposition of the defendant professional. We limit the discussion to attorneys in this setting. 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, and viability of the underlying case. 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, the transcripts of depositions and content of demands must be produced. The professional's deposition should reveal the situation at the start of the case, what elements were required in the underlying case, the party's position, and the subsequent acts of the defendant attorney.

Defense counsel in attorney malpractice cases are especially keen in defending their clients. Knowledgeable and sophisticated clients are more acutely interested in protecting themselves and their perceived right not to answer questions than is the general lay public.

Successful questioning of the defendant in 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 for 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.

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." McDermott, 15 N.Y.2d at 29-30. 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." Carvalho, 53 A.D.2d at 635. The divergence between questions which seek an expert opinion of the witness, and objections that the questions "bear solely" on the codefendant are cogently analyzed in the NYLJ Medical Malpractice column by Thomas A. Moore and Matthew Gaier. 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, Aug. 2, 2005, p.3.

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. Carmel v. Lunney, 70 N.Y.2d 169 (1987); Rudolph v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438 (2007) (PJI 2:152).

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 departure from good practice by the defendant in representation of the plaintiff. As would be expected, plaintiff's witness testifies that there was a departure from good and accepted practice, while defendant's witness testifies either that there was no departure, or that if a departure 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 the standard of practice and departure from it?

Disclosure and Depositions

This article discusses depositions. Trials are another matter altogether. Giventer v. Rementeria, 181 Misc2d 582 (Sup. Ct. Richmond Co. 1999). In New York deposition rules are different for parties, non-parties, and almost non-existent for experts. Within the meaning of the CPLR 3101, experts are a "person whom the party expects to call as an expert witness at trial … ."

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 time-line, 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 may and 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 an analytical 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 … ." CPLR 3101(d)(iii). Non-parties may be deposed upon "notice, stating the circumstances or reasons such disclosure is sought or required." CPLR 3101(4)

However, when the witness is a party, including, of course a defendant attorney, disclosure is governed by CPLR 3101(a). Lippel v. City of New York, 281 A.D.2d 327 (2001). "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." Id. at 328. Patently, a party falls even closer to CPLR 3101(a) 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 3101(a). Again, citing McDermott, the First 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." Glasburgh v. The Port Authority of New York and New Jersey, 213 A.D.2d 196 (1st Dept. 1995)

Deposition of Defendant Attorneys

The issue of depositing a defendant attorney as an expert was first answered in 1993 in Lingener v. Maynard, O'Connor & Smith, and Lingener v. State Farm Mut. Auto. Ins. Co., 195 A.D.2d 838 (3d Dept. 1993). Plaintiff in the attorney malpractice action had been 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 Company. 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, Lingener, 195 A.D.2d 838 alleging bad faith against the insurer and malpractice against his defense counsel. 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." Id. at 839.

This principle has been confirmed since. The special circumstances requirement of CPLR 2101(d) does not apply to a witness who is also an employee of a party. Glasburgh, 213 A.D.2d 197. Testimony required from a witness as an employee is permissible, even though the testimony might be helpful to the plaintiff. Lippel, 281 A.D.2d 328.

In Koch v. Sheresky, Aronson & Mayefsky, 33 Misc.3d 1228 (S. Ct. NY County, 2011) the court wrote: "However, it is established law that a defendant attorney may, to a certain extent, be questioned as an expert in a legal malpractice action (Lippel v. City of New York, 281 A.D.2d 327 (1st Dept. 2001); Lingener v. State Farm Mut. Auto. Ins. Co., 195 A.D.2d 838 (2d Dept. 1993)."

A defendant attorney is an employee of the defendant for this purpose. "It is a long-established principle that 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) … ." (emphasis in original) Snyder v. Deere & Co., 2017 NY Slip Op 51002(U) (S. Ct., Tompkins, 2017).

The Underlying Rationale

A professional defendant in a civil action, whether attorney or doctor, has no inherent right to remain silent, or to answer only those inquiries which will have no adverse effect on his case. McDermott, 15 N.Y.2d at 28. 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. CPLR 4501; Richardson, Evidence [9th ed.], §523; Wilson v. Metalcraft of Mayville, 13 A.D.3d 794 (3d Dept. 2004)

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. Meiselman v. Crown Heights Hosp., 285 N.Y. 389 (1941). The expert party may supply such testimony.

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 an attorney specializing in legal malpractice litigation; board certified in Legal Malpractice by the American Board of Professional Liability Attorneys; an adjunct professor of law at St. John's University Law School; and the author of the New York Attorney Malpractice Blog, at blog.bluestonelawfirm.com.