For my fellow NY accident attorney readers, we all know that answering the defense lawyer’s Demand for Bill of Particulars is a necessary evil. Necessary because we are required to do it and evil because a trial judge will generally limit your proof at trial to your answers to the defendant’s demand. Accordingly, for those questions you are required to answer, it is important that your answers be as complete as possible. However, because a BOP Response is a pleading and responses are admissible at trial, you don’t want to answer any more questions than are legally required. That’s where this practice tip comes in. My advice is that you review the BOP demands carefully and ONLY answer those BOP demands that are appropriate and OBJECT to any BOP demands that are inappropriate.
I have noticed a recent trend with defense lawyers asking more and more BOP questions that are clearly objectionable.
I think alot of this may be due to the fact that some plaintiff’s lawyers haven’t bothered to read CPLR §3043 which specifies just 9 areas of inquiry in a NY personal injury action. That’s right, just 9 areas of inquiry. So the next time you get a BOP Demand that goes outside these 9 areas of inquiry, you can reply: Improper Demand, beyond the scope of CPLR §3043.
Below I have pasted CPLR §3043 for your convenience in reviewing this statute:
Rule 3043. Bill of particulars in personal injury actions.
(a) Specified particulars. In actions to recover for personal injuries the following particulars may be required:
(1) The date and approximate time of day of the occurrence;
(2) Its approximate location;
(3) General statement of the acts or omissions constituting the negligence claimed;
(4) Where notice of a condition is a prerequisite, whether actual or constructive notice is claimed;
(5) If actual notice is claimed, a statement of when and to whom it was given;
(6) Statement of the injuries and description of those claimed to be permanent, and in an action designated in subsection (a) of section five thousand one hundred four of the insurance law, for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, in what respect plaintiff has sustained a serious injury, as defined in subsection (d) of section five thousand one hundred two of the insurance law, or economic loss greater than basic economic loss, as defined in subsection (a) of section five thousand one hundred two of the insurance law;
(7) Length of time confined to bed and to house;
(8) Length of time incapacitated from employment; and
(9) Total amounts claimed as special damages for physicians’ services and medical supplies; loss of earnings, with name and address of the employer; hospital expenses; nurses’ services.
Where in the statute does it say that “ONLY these demands may be asked, in a personal injury action.” Or is there some case law to that effect?
Louis raises a good point. He is correct that the statute does NOT expressly state that ONLY these demands may be made in PI cases.
The general rule, absent a statute to the contrary, is that any party to the lawsuit, may demand of his/her adversary, particularization of any allegation for which the party has the burden of proof.
Accordingly, there MAY be demands that are appropriate that go beyond the 9 categories listed in CPLR 3043.
However, this is where the practice tip I provided becomes important– I take the position that if a defense lawyer is going to ask me questions beyond these 9 categories, I am going to very carefully scrutinize those questions and only answer those where I believe I have the burden of proof. If I think the question exceeds the scope of CPLR 3043 and is on an issue that I do not have the burden of proof, I will object to the demand putting the burden on the defense attorney to establish why the question is appropriate.
My experience is that many plaintiff lawyers are lazy and they just routinely answer every question asked of them. I believe that sort of practice is sloppy and is often to the detriment of the client. I am not going to provide ammunition to my opponent unless I am required to do so. As they say, “that’s the way I roll”.
Louis, thanks for raising a good point. As is often the case with practicing personal injury law, there are very few absolute rules where you can say that I ALWAYS handle things a certain way and that’s why experience, common sense and knowing the various laws and their interpretations is so important. Frankyly, it is this ever-changing daily practice, that makes me LOVE going to work every day.
Thanks for reading,
Jim
_____________________________________
James B. Reed, Esq.
N.Y. & PA Personal Injury & Malpractice Attorney
Ziff Law Firm
303 William St., Elmira, NY 14902
Tel. (607) 733-8866
Fax. (607) 732-6062
Toll Free 1-800-943-3529
mailto:jreed@zifflaw.com http://www.zifflaw.com