NYCOM 2001 Public Works School

1. NYCOM 2001 Public Works School Your Day in Court - Preparing for Testimony, Depositions & Examinations Before Trail Andy Brick, NYCOM Counsel Bob Bambino, New York Municipal Insurance Reciprocal

2. NYCOM 2000 Public Works School Managing Highway Exposures: Methods to Control Highway-Related Claims and Litigation Robert Bambino New York Municipal Insurance Reciprocal

3. 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.

4. 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.

5. 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. .

6. NYCOM 2000 Public Works School Principles Regarding Duties • Municipalities are not insurers of the safety of the roads • Duty is limited to maintaining roadways in a reasonably safe condition for public travel • To 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

7. 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

8. NYCOM 2000 Public Works School Road Construction Facts - Injuries to Workers Fatalities 74% of all fatalities in SIC 1611 are due to the following hazards 1. 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 Injuries67% 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%

9. 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.

10. NYCOM 2000 Public Works School • If an accident does occur: • Get help • Cooperate with police • Secure photos • Look for witnesses • Record who was working at the time • Record witnesses • Give objective statements - not opinion • Report accident to insurance agent

11. NYCOM 2000 Public Works School QUESTIONS?

12. NYCOM 2000 Public Works School Your Day in Court Helpful Tips and Information About the Judicial Process Andy Brick, NYCOM Counsel

13. NYCOM 2000 Public Works School Subpoenas 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.

14. NYCOM 2000 Public Works School Types of Subpoenas Subpoena 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.

15. NYCOM 2000 Public Works School • 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.

16. NYCOM 2000 Public Works School Examinations 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.

17. NYCOM 2000 Public Works School EBT’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.

18. NYCOM 2000 Public Works School E.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

19. NYCOM 2000 Public Works School • Deposition may be recorded stenographically or by audio or video tape • Deponent is sworn • Examination and cross-examination are permitted

20. NYCOM 2000 Public Works School • 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

21. NYCOM 2000 Public Works School • 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

22. NYCOM 2000 Public Works School E.B.T. Tips • You should always have your attorney present when you are deposed • Follow your attorney’s direction • Bring any documents or other items required by the EBT notice or subpoena

23. NYCOM 2000 Public Works School • 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

24. NYCOM 2000 Public Works School Trial Testimony Types of Witnesses • Favorable Witness • Called by your attorney • Indifferent Witness • Called by any party • Hostile Witness • Called by adverse party

25. NYCOM 2000 Public Works School Types of Testimony • Authentication of Documents • Subpoena duces tecum • Lay Testimony • Based on personal knowledge or observation • Expert Testimony • Based upon expertise related to the matter about which you will testify

26. NYCOM 2000 Public Works School Trial Procedure • Administering the oath • Direct Examination • Conducted by attorney for party who required your presence

27. NYCOM 2000 Public Works School • Cross Examination • Conducted by attorneys for parties other than one which required your presence • Re-Direct & Re-Cross • Dismissal or required to remain available

28. NYCOM 2000 Public Works School Tips for Testifying Effectively • Consult with your attorney before your court appearance • Stay relaxed • Be respectful • Take a moment to form and phrase an answer before responding to a question • Speak slowly, clearly and with sufficient volume

29. 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 so • If you don’t know an answer say so • Stop testifying if an objection is made and wait until the Judge allows your testimony to proceed • Answer questions to the best of your knowledge based upon facts you know; don’t guess or speculate unless asked to do so

30. NYCOM 2000 Public Works School Questions ?