FAQ’s Depositions – A Successful Approach

Depositions are one of the most critical aspect of any complex litigation. It’s an opportunity to get answers, even if the answers are not always in line with your assumptions.

I look to depositions as a form of negotiations: constantly digging deeper to understand the witness his/her motivations, grievances, perceptions, and facts. I’m always advocating for my client but the best way to advocate for a client in a deposition is not to badger, annoy, or infuriate the witness. The absolute best way to conduct and manage a deposition is to think of it as a form of negotiation and that involves active listening.

A good deposition consists of two forms of questions, with an emphasis on the second form:

  1. fishing with a spear gun
  2. fishing with a net

Fishing with a spear gun refers to those careful, targeted questions. Generally this refers to questions that are “yes” or “no” until I have painted the witness into a corner.

Fishing with a net means asking broad questions, creating space and opportunity for the witness to expand on their response, to voice their grievance, to explain their concerns and the things that are most critical to their position. Fishing with a net means I’m not really asking targeted questions but just trying to dig as deep as I can into the witnesses position and state of mind. More often than not through this approach I’ll find nuggets of truth that are useful in understanding the strengths and weaknesses of the case from both sides. By asking broad questions and giving the witness time and space to respond (physically just waiting 5 -7 seconds) I also find they tend to paint themselves into a corner with a flood of facts and emotions.

That being said, when fishing with a net, I always keep the goals of the deposition in mind: prove the elements of my claim or defense AND identify weaknesses in the elements of the other side’s claims or defenses.

Usually, to prepare for a deposition I have a checklist of goals, just to keep me focused on the questions I may want to ask or address because the one danger in digging deeper/fishing with a net is you can get a little lost in the weeds or on issues that have very little bearing or relevance to the actual lawsuit. As such, the checklist of goals helps me get back on track with my questioning or assists me in knowing when to shift gears in my line of questioning.

To also prepare for a deposition, I identify correspondence or other documents (including the Complaint, the Answer and responses to Discovery Demands) that I want to walk through with the witness to confirm the accuracy of any statements or confirm that the allegations in the Complaint or Answer are still true as the witness understand them.

The take away here is, a deposition is an investigative process. I want to understand as much as possible especially if it impacts the case. Embarrassing, humiliating, or intimidating the witness is not a productive goal and it’s certainly not a professional approach. I have witnessed many attorneys forget this. It’s an expensive, unproductive waste of time. We’re all there to get to the truth and try to resolve a dispute. Getting angry, worked up, or any histrionics on any level for that matter do nothing for you. Any attorney who says otherwise is selling you garbage.

FAQs: The Preliminary Conference

Litigation in New York courts is governed by rules set forth in the New York Civil Practice Law & Rules (CPLR), “Uniform Rules”, local/judges’ rules, and case law.

The Preliminary Conference (“PC”) is the first conference in the case (hence “preliminary”) and the first time the case has deadlines that are imposed by the Court itself such as the deadlines for discovery demands to be served, the deadlines for responses to discovery demands, the deadlines for when depositions should be conducted, and the deadline for when the case should be ready for trial.

The PC sets the schedule for your lawsuit.

The timing, procedure, and other mechanics of the Preliminary Conference are codified in Section 202.12 of the Uniform Civil Rules for the Supreme Court and the County Court (codified at Title 22 of the New York Codes, Rules and Regulations, 22 NYCRR 202.12).

.Section 202.12 provides, inter alia, that the following matters to be considered at the PC include:

  1. simplification and limitation of factual and legal issues, where appropriate;
  2. establishment of a timetable for the completion of all disclosure proceedings, provided that all such procedures must be completed within the timeframes set forth in subdivision (b) of this section, unless otherwise shortened or extended by the court depending upon the circumstances of the case;
  3. Where the court deems appropriate, it may establish the method and scope of any electronic discovery;
  4. addition of other necessary parties;
  5. settlement of the action;
  6. removal to a lower court pursuant to CPLR 325, where appropriate; and
  7. any other matters that the court may deem relevant.

22 NYCRR 202.12(c).

The result of the Preliminary Conference is an Order (the Preliminary Conference Order with which the parties must comply.

The PC Order, in addition to including various discovery deadlines, will also set a “Compliance Conference”, where the parties will again meet at court and discuss what, if any discovery, remains outstanding.

FAQ’s: The Litigation Process


Note: this is for educational purposes only

Commencement and Pleadings. Generally, a lawsuit is commenced by filing and serving a Summons and Complaint. The Defendant must serve an Answer within 20 days if served personally or 30 days if served by any other means.

Discovery Process. Discovery is the process of investigating and gathering documents and evidence in support of your claims or in opposition to adversary’s claims. The timeline varies greatly based on complexity, cooperation of parties and other factors. Typical discovery tools/forms include:

  • A Demand for documents
  • Combined discovery demands (i.e. demand for witnesses, insurance information, etc.)
  • Interrogatories (set of questions which must be responded to under oath)
  • Depositions (basically an interrogation in a room with a court reporter, under oath)

The length and expense of the discovery process will vary greatly from case to case depending on several factors: (1) the complexity of the case (2) extent of the documents being reviewed or demanded (3) number of material witnesses (4) whether the opposition is being responsive or cooperative to our demands (5) whether there is a dispute regarding discovery demands and/or responses to discovery demands (6) the Court where the case is brought.

If issues with discovery cannot be resolved between the parties, then one or both of the parties may file a “Discovery Motion”.

The discovery process can take months and in some cases years depending very much on the cooperation and availability of the parties, the number of witnesses, and the Court where the lawsuit is filed.

Motions. Motions are applications or requests to the Court to do something or take some action based upon a statute or rule of law. So this includes things such as Motion to Dismiss or Motion for Summary Judgment, or Motion for Injunctive Relief. The time for a Court to make a decision on a motion can take weeks or months. It varies depending on the motion, the Court, and even the Judge.

Trial. When discovery is complete the plaintiff is required to file a Note of Issue with the Court, which tells the Court that the parties are ready for trial. Once filed the Court will set a date for a Pre-Trial conference at which time the Court will set a date for trial. Trial is not something that happens immediately. Depending on the Court and the Judge it can be in a matter of months from when the Note of Issue is filed, or it can be even up to a year.

When Do You Need to Come to Court? The only time you need to appear in court is for trial or a special hearing if you are a required witness, or the Court requires you to appear. Clients often ask if they need to appear for conferences, compliance conferences, preliminary conferences. The answer is “NO”. Conferences are not trials. In most courts we aren’t even before a judge but instead dealing with procedural issues before a magistrate or referee where clients are not allowed.


Most cases never get to trial because (1) the parties settle or (2) the case gets dismissed

***Even though most cases never make it to trial, it is worth noting that Trial preparation is intensive and therefore very expensive, generally. It involves preparing exhibits, preparing witnesses, preparing questions and determining strategies based on what occurred during the discovery process.


Conferences. Courts require numerous conferences during the course of any lawsuit. The purpose of these conferences is to determine a possibility for settlement, determine if there are any issues in the discovery process, set deadlines, and extend deadlines if necessary.

Motions. A motion is an application/request to the Court to do something. As a practical matter all motions impact the litigation schedule and expense.

For example, a motion to dismiss is asking the Court to dismiss certain causes of action because they have no legal or factual merit.

For example, a motion for summary judgment is asking the Court to render a judgment now in your favor because there are no issues of material fact.

There are 4 main types of Discovery Motions: (1) a Motion to Compel Discovery Responses (2) a Motion to Strike the Pleading for Failure to Comply with Discovery Demands (3) a Motion to Preclude the Admission of Documents at Trial and (4) a Motion for a Protective Order.

The cost of any motion will depend on the facts and complexity of the issues.

How Long Will Your Lawsuit Take? Unfortunately that is impossible to predict with any real degree of certainty. It will depend on the complexity of the case, court ordered deadlines, the opposing party and their level of resistance/cooperation, your availability and responsiveness, and how busy the Court is, meaning how many other cases does the assigned Judge have to deal with.

FAQ’s: Preliminary Injunctions and Restraining Orders: CPLR 6301

Often, in the context of a partnership dispute or business divorce, clients ask me if there is a way to stop the opposition from doing something that is hurting the business or hurting the client as a co-owner of the business.

Under New York law, one can “restrain” or “enjoin” a party from engaging in certain conduct provided it meets the requisite legal standard.

When a party is seeking to permanently restrain another party it is called injunctive relief.

At the beginning of a case this is called a “preliminary injunction“.

CPLR 6301 – Preliminary Injunctions

Pursuant to CPLR §6301, the grounds for getting a preliminary injunction and temporary restraining order are as follows: “A preliminary injunction may be granted in any action where it appears that the Defendants threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the Plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the Plaintiff has demanded and would be entitled to a judgment restraining the Defendants from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the Plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the Defendants is restrained before the hearing can be had”.

The Three Part Test

Courts have come up with a 3-part test for determining whether they will grant a request (a “motion”) for a preliminary injunction.

In order to obtain a preliminary injunction, a moving party must demonstrate: (1) a likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of the injunction; and (3) that the equities balance in the movant’s favor (Benjamin Kurzban & Son, Inc. v. Board of Education of the City of New York, 129 A.D.2d 756 [2d Dept. 1987], citing McLaughlin, Piven, Vogel, Inc. v. W.J. Noland & Company, Inc., 114 A.D.2d 165 [2d Dept. 1986]). 

Let’s take a look at this 3 part test in greater detail and specifically in the context of a partnership dispute or business divorce.

Likelihood of success on the merits:

This means that you have to get into detail about the claims you’re asserting in your lawsuit, how the facts satisfy the elements of each claim, and why you believe you will be successful on your claims.

You need only make a prima facie showing of likelihood of success on the merits, and need not demonstrate a certainty of success on a motion for a preliminary injunction. See Parkmed Co. v. Pro-Life Counselling, Inc., 91 A.D.2d 551, 552 (1st Dept. 1982); see also Terrell v. Terrell, 279 A.D.2d 301, 303 (1st Dept. 2001) (evidence showing likelihood of success on the merits need not be conclusive); Demartini v. Catham Green, Inc., 169 A.D.2d 689, 690 (1st Dept. 1991) (same).  That being said, you will want to bring as much information to the table to support your claims.

Even “the existence of a factual dispute will not bar the granting of a preliminary injunction if one is necessary to preserve the status quo and the party to be enjoined will suffer no great hardship as a result of its issuance.” Mr. Natural, Inc. v Unadulterated Food Products, Inc., 152 A.D.2d 729, 730, (2d Dep’t 1989) (a preliminary injunction may be granted where injunctive relief is deemed necessary to maintain the status quo, even if the movant’s success on the merits cannot be determined at the time that the application for a preliminary injunction is brought). Id; see also, U.S. Ice Cream Corp. v Carvel Corp., 136 A.D.2d 626, 628 (2d Dep’t 1988); Burmax Co. v B & S Indus., Inc., 135 A.D.2d 599, 600 (2d Dep’t 1987).

Irreparable Injury:

Irreparable injury is probably the most significant prong of the 3-part test for injunctive relief. It means that the injury claimed must be more than just money damages. If money will rectify the issue then you’re going to run into a tough hurdle to prove irreparable injury.

“Irreparable injury is an injury that is neither remote nor speculative, but rather actual and imminent (Khan v. State University of New York Health Science Center at Brooklyn, 271 A.D.2d 656 [2d Dept., 2000]).” Spivak ex rel. Eyeball On the Floor, Inc. v. Bertrand, Index No. 653712/2015, at *15-16 (N.Y. Sup. Ct. 2016)

For example, Courts in New York have uniformly found irreparable injury where an equity holder is being squeezed out of control or management:

  • In Alcatel Space, S.A. v. Loral Space & Communications Ltd., 154 F. Supp 2d 570, 584 (S.D.N.Y. 2001) the court found that loss of certain bargained for minority rights to participate in management of the company constituted irreparable harm), aff d by summary order, 25 Fed. Appx. 83 (2nd Cir 2002);
  • In Davis v. Rondina, 741 F. Supp 1115, 1125 (S.D.N.Y. 1990) the Court found that breach of the shareholders agreement by excluding minority shareholder from management of corporation constituted irreparable harm;
  • In Street v. Vitti, 685 F. Supp 379, 384 (S.D.N.Y. 1988) the court found that the potential infringement of the minority shareholder voice in management of the company, by the majority shareholder constituted irreparable injury;
  • In Louis Foodservice Corp. v. Konstantinos Vouviouklis, 2002 WL 31663230 (Sup. Ct., Kings Cty, 2002) the court determined that loss of control of a closely held business constitutes irreparable injury; also see Spivak ex rel. Eyeball On the Floor, Inc. v. Bertrand, Index No. 653712/2015, at *17 (N.Y. Sup. Ct. 2016).
  • In Oracle Real Estate Holdings Co. 1 v. Adrian Holdings Co. 1, LLC, 582 F Supp.2d 616, 621 (SD NY 2008), the court granted a preliminary injunction where the issue was loss of control of a company, finding irreparable harm, noting that “[plaintiff] seeks to enforce (1) a bargained-for right to corporate control (2) that is difficult or almost impossible to value, which (3) could be meaningless or substantially diminished in value by the end of the litigation in the absence of injunctive relief.”
  • In Bank of America, N.A. v. U.S. Bank National Association, 2010 WL 4243437, at *10-11 (Sup Ct NY Co. 2007) the court found irreparable harm to exist where in the absence of injunctive relief, the plaintiffs would lose their bargained-for right to control the management of property which consisted of approximately 11,000 units, 25,000 residents and 550 employees.
  • In Cantwest Global Communications Corp. v. Mirkaei Tikshoret Limited, 9 Misc. 3d 845, 804 N.Y.S.2d 549 (NY Ct. 2005), the Court held that the lost bargained-for right to participate in the management of a company constituted irreparable harm. In addition, the Court held that the (1) firing of employees (2) moving of operations (3) and changing of vendors further necessitated a finding of irreparable harm.
  • Irreparable injury may be demonstrated by the loss of customers, permanent loss of revenues and loss of good will. See for example Wisdom Import Sales Company v. Labatt Brewing Company, Ltd., 339 F.3d 101 (2d Cir 2003).
  • Irreparable harm may also be found where absent a preliminary injunction the plaintiff would in sum and substance be terminated as a member and employee of the company. See Matter of Madelone v. Whitten, 18 Misc.3d 1131(A) [Sup. Ct., Albany Cty., 2008].

In finding irreparable harm in the context of partnership/business disputes Courts have also considered the following:

  • (1) where the defendant has made it impossible for the Company to profit
  • (2) where the defendant has utterly defeated your reasonable expectations in profits
  • (3) where the defendant has made it impossible for the Company to conduct business
  • (4) where the defendant has destroyed the Company’s goodwill, and
  • (5) where the defendant’s conduct has resulted in loss/permanent loss of the Company’s customers.

What Goes Into Drafting a Motion for a Preliminary Injunction?

A motion for a preliminary injunction consist of the following:

  • An Order to Show Cause (the cover page asking for the specific relief)
  • Attorney Affirmation
  • Client Affidavit of Facts (which need to be notarized)
  • Memorandum of Law in Support (reciting the facts of the case and the law in support of the the three-pronged test discussed above)
  • A Verified Summons and Complaint (setting for the facts and the causes of action)

What is the Process for Filing a Motion for a Preliminary Injunction?

The process of filing a motion for a preliminary injunction looks generally as follows:

  • Electronically file the motion papers (proposed Order to Show Cause, Affirmation, Affidavit, Memorandum of Law, and Summons/Complaint)
  • Appear in Court to provide hard copies to the Judge so he/she can sign the proposed Order to Show Cause (if you’re seeking a temporary restraining order — “TRO” — you may need to argue the basis for doing so the day you bring the papers to the Judge for signature)
  • Await a signed and completed Order to Show Cause from the Judge which will set forth (1) the process and due date for papers to be served on the defendant, (2) the due date for opposing papers to be submitted, (3) and if the Court will hear oral argument, the date when the parties will be in court for oral argument
  • Show up in Court for oral argument
  • Either await a decision from the Court OR in some cases the Judge will issue a Decision and Order on the day of oral argument

For a detailed consultation regarding your partnership dispute, business dispute, or business divorce, contact us today!