Excerpted from New York Trial Notebook
By Edward L. Birnbaum
Carl T. Grasso
Hon. Ariel E. Belen (Ret.)
When cross-examining a lay witness, you should have in mind one or more of the following three objectives:
• Probing (and revealing cracks in) the foundation of the witness’s testimony: Does the witness have the ability to accurately perceive and communicate what he or she is testifying about?
• Impeachment: Is the witness biased, dishonest, or untruthful?
• Introducing new (hopefully favorable) evidence.
Below are tactics that can assist you in achieving these objectives.
Probing the Foundation
If a witness testifies very confidently on direct about numerous obscure details surrounding events that took place a long time ago, and there seems to be no particular reason why the witness should have paid special attention to remember these things, consider testing his or her memory. If the witness is a police officer who responded to a routine traffic accident, bring out how many accidents he or she has investigated since the subject incident; how many were similar to the subject incident; and if he or she remembers similar details about an accident investigated two months ago.
Lay witnesses who seem to have uncanny recall about certain details in issue might be asked about other details, e.g., when the transaction occurred, who was present, what were the colors of the cars, what did the other witnesses at the scene look like, how many police officers or police cars were at the scene, etc. See People v. Price, 232 AD2d 156, 647 NYS2d 746 (1st Dept 1996) (alibi witness was able to recall with precision defendant’s whereabouts for a 7-hour period two and a half years before trial, but was unable to give any details of meetings with the defendant at later times).
Be careful when taking this approach. Do not ask “why” the witness remembers this detail, but not that detail. No cross-examining lawyer wants an answer from a witness to the effect that, “the surprised expression on Mr. X’s face when the truck went through the red light and hit him will be with me the rest of my life” (as well as making an indelible impression on the jury, such testimony supports a claim for recovery for pre-impact terror; see Boston v. Dunham, 274 AD2d 708, 711, 711 NYS2d 54, 58 (3d Dept 2000)), or “I still wake up in the middle of the night hearing (plaintiff’s decedent’s) screams for help as she beat her fists on the window as her car sank into the lake.”
Testing Quantitative Perceptions
If a witness has testified to speed, distance, or time and the witness’s estimates seem out of touch with reality, consider some simple tests in the courtroom. See Millington v. New York City Transit Authority, 54 AD2d 649, 387 NYS2d 865 (1st Dept 1976) (in a retrial, where plaintiff testified she first saw a train 200 feet away, it was error to not allow defendant to show that in the first trial plaintiff had estimated the distance to a far row of seats in the courtroom to be 150 feet, which distance was actually 40 feet).
Many witnesses overestimate elapsed time. If a witness says he sat in his car for three or four minutes after the accident before getting out (and this is an important point) consider taking out your stop watch and letting one minute go by in silence (it will seem an eternity).
If the witness gave all three estimates (speed, time and distance) relating to the same event, do the arithmetic; if it does not jibe, consider confronting the witness with the impossibility.
“You told us the car was going 60 mph when it entered the intersection, correct?”
“That speed is about 90 (more precisely, 88) feet per second? Will you trust me on that?”
“You told us you first saw the car the block before the intersection?”
“That city block is about 200 feet long, right?”
“You told us you watched the car for ten seconds before it entered the intersection, true?”
“So it took that car ten seconds to travel 200 feet? That’s 20 feet per second?”
“Twenty feet per second is only about fourteen miles per hour, isn’t it?”
Preparation by Proponent Counsel
Most modern jurors expect witnesses to have reviewed their testimony with the proponent lawyer. However, jurors may become suspicious of witnesses who they think have been so “over prepared” that testimony has actually been scripted by counsel.
Therefore, it may be worthwhile to explore the extent of prior contacts the witness had with opposing counsel. See Radovic v. City of New York, 168 Misc2d 58, 642 NYS2d 1015 (Sup Ct NY County 1996) (plaintiff’s counsel could ask witnesses who were employees and former employees of defendant whether they had met with defendant’s counsel and for how long they had spoken, and whether they had spoken about the action, but could not inquire about the substance of the discussions related to preparation for trial because those communications were protected by the attorney-client privilege).
Of course, cross-examining counsel may not know the answers to most of these questions before asking them. Flexibility is a must. Get a quick sense if the area is likely to be fruitful; if so, continue to delve; if not, get off it and go to something else.
If the witness came to court voluntarily, as opposed to in response to a subpoena, bring out this fact. (This is one reason why it is good practice to always subpoena “independent” witnesses whom you are calling as part of your case.) If the witness came from out of town, bring out that transportation costs, food and lodging are being paid for by proponent counsel. It may be worth asking if the witness is being paid for time in court. If the witness is regularly employed, ask if proponent counsel is making up any lost wages. If opposing counsel has put the witness up at the Waldorf Astoria, the jury is entitled to know this (better still if the witness claims this was just for convenience, since proponent counsel’s office is just across the street on Park Avenue!). If the witness appears nervous and denies receiving anything at all, the jurors may not believe it, and start to view the witness with a jaundiced eye.
If the area seems fertile, continue exploring. Ask when opposing counsel first met with the witness; how many times over all; how much time was spent in these meetings. If the time and effort spent in meetings seems like a lot compared to the time the witness spent on the stand on direct, the jurors may begin to wonder about all the things the witness was deliberately not asked on direct, or how much of that time was simply spent rehearsing. If the witness appears nervous and denies any meetings with counsel, the jurors may find this testimony suspect.
Unwillingness to Speak With Your Side
The flip side of the witness having contact with the other side is the witness’s unwillingness to speak to your side. Bring out that the witness refused to talk to you when you telephoned; that he or she would only speak for a minute; that the witnesses insisted he or she did not know anything or said he or she did not want to become involved. If the witness gave a statement to your opponent, bring out that he or she refused to talk to your investigator or talked to your investigator but would not agree to written or recorded statement.
Material Used to Refresh Recollection
Depending on the witness’s testimony and capacity (and presuming nothing about this was said on direct), it may be helpful to ask a witness as one of the first questions on cross-examination if he or she used anything to refresh recollection before testifying. If the answer is yes, this material becomes fair game for cross-examination. Delve into any inconsistencies or omissions. If the answer is no, and this answer is inherently hard to swallow (e.g., an investigating police officer seven years after a traffic accident who claims not to have looked at his report, recounting the statement of a bystander), the witness has lost credibility.
If you do not have the material the witness used to refresh recollection, call for its immediate production. If the material is extensive, give it to your second chair to review while you continue, or ask for a short recess. See Chabica v. Schneider, 213 AD2d 579, 624 NYS2d 271 (2d Dept 1995) (on cross-examination, the plaintiff admitted that he had kept a “personal diary” and that he had looked at these notes immediately prior to trial; held that the trial court erred in denying defendant’s application to inspect the notes and use them in cross-examination); Garabedian v. New York State Liquor Authority, 33 AD2d 980, 307 NYS2d 270 (4th Dept 1970) (police officer admitted he refreshed his recollection before testifying by reading his report, refusal to order report to be made available to counsel was error, new hearing required).
Introducing New Evidence
Don’t Imperil Your Verdict
In the midst of trial, a lawyer may suddenly have a brilliant idea, perhaps based on the witness’s direct testimony, and may figuratively jump through hoops to be able to confront the witness with brand new material, never disclosed in discovery. Should this happen to you, be cautious: Depending on the circumstances, such steps may imperil a favorable verdict. In Wolodkowicz v. Seewell Corp., 61 AD3d 676, 677, 876 NYS2d 487, 489 (2d Dept 2009), defense counsel took photographs during the lunch recess immediately following the plaintiff’s direct trial testimony and did not provide copies to the plaintiff, thereby depriving her of the opportunity to counter them by taking her own photographs. Accordingly, a new trial was warranted.
The lesson would seem that such new material is not necessarily prohibited outright, but you should not expect to be able to safely confront the witness with it on the stand without having first disclosed it, even if only minutes before the witness resumes the stand. While you may understandably be averse to tipping your hand, reversal of a favorable verdict is surely not worth the risk of non-disclosure.
About the Authors
EDWARD L. BIRNBAUM is of counsel to Worby Groner Edelman LLP, and the former head of the Litigation Department at Herzfeld & Rubin, P.C. in New York. He is a prolific author of litigation articles and lectures frequently on litigation strategy and techniques for Bar Associations and Continuing Legal Education Institutions. His practice areas in litigation include personal injury, product liability, professional liability, commercial, strategy, and trials. Mr. Birnbaum has received the highest rating from Martindale Hubbell and has been named as a New York Super Lawyer from 2006 through 2014.
CARL T. GRASSO is a member of the firm of Herzfeld & Rubin, P.C. in New York City, specializing in litigation and trial work in the areas of personal injury, product liability and commercial litigation. For more than three decades, he has been intimately involved in trials all over the United States, as well as in New York. He is an arbitrator in the Small Claims Division of the Civil Court of the City of New York. He holds Martindale Hubbell’s highest rating. He is a cum laude graduate of New York Law School.
HON. ARIEL E. BELEN (Ret.) is an ADR neutral at JAMS in New York City. He wasan Associate Justice of the Appellate Division, Second Department from 2008 to 2012 and a Justice of the New York Supreme Court trial and appellate terms from 1995 to 2012. Justice Belen helped create the Kings County Commercial Division and then presided as a Justice handling complex commercial cases. During his many years of distinguished judicial service, he presided over countless matters covering the gamut of civil litigation from administrative to zoning law.
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