New York Trial Answer Book
Techniques, law, and forms for trial preparation and presentation.
Lawyers no longer have as many opportunities to polish their trial skills. Small cases rarely reach courtrooms, and specialists and public defenders now handle the criminal cases that used to keep civil lawyers trial-ready.
However, the procedures and cases governing New York courtrooms — and the techniques that work in them — must still be learned and remembered. Here is the solution.
Courtroom veterans Ed Birnbaum, Carl Grasso, and Justice Ariel Belen have blended their hard-won trial lessons with the law and rules governing New York trials in an accessible single volume called New York Trial Notebook. This practical work is heavily-supported with 2,000 cases containing parenthetical descriptions and pinpoint citations, more than 80 forms in print and via Digital Access, and dozens of practice tips. New York Trial Notebook delivers:
Expert witness disclosure
- Boundaries of the treating-physician exemption from disclosure. §5:04
- Good practice on requests for expert witness disclosure. §5:22
- How much disclosure is sufficient. §5:41
- When preclusion is the appropriate remedy for late disclosure, §5:50, and when it is not. §5:51
- Tactics for admission and preclusion, with forms. §5:51
- Case law for common motions in limine. §13.06
- Responsive tactics. §13:23
- Plaintiff’s proven case themes for liability, §14:20, and damage. §14:21
- Same for the defense. §§14:32 and 33
- Themes effective in commercial litigation. §14:40
- What to put in your trial notebook. §14:51
Expert witness testimony
- When cumulative expert testimony is permissible. §15:81
- Rules and cases on expert opinion evidence. §15:90
- Frye hearings during trial, with forms. §15:131
- Adequate and inadequate bases for expert opinions. §15:141
- For medical opinions. §15:163
- Is a complete factual predicate necessary? §26:53
- Objecting to questions omitted in judicial voir dire. §20.13
- Tactfully excusing jurors. §20.18
- Procedures and tactics in White’s and Struck methods. §20:31
- How to conduct a skillful voir dire. §20:50
- Pattern language for responding to negative comments about lawyers, size of awards, and the like. §20:56
- Model commitment questions. §20.100
- Batson-challenge cases and procedure. §20:141
- Argument tips from the bench. §19:03
- An easy way to obtain daily feedback during trial. §19:40
- Handling forgetful witnesses. §23:20
- Helping plaintiffs make a good impression. §24:20
- A fallback question format to avoid leading-question objections. §24:60
Cross examination of lay witnesses
- How to attack credibility when you must also bring out new evidence. §25.11
- Questions for attacking the foundation for testimony. §25.20
- Techniques for impeachment. §25:30
- Scope of use of inconsistent statements. §25:32
- Pattern questions for showing bias without overstepping. §25:52
- Fair subjects for cross, §25:62, gray areas, §25:63, and matters not allowed. §25:64
- The art of effective cross-examination. §25:90 et seq.
And much, much more. You’ll receive detailed answers to the questions that frequently arise in the home stretch before trial, and that arise in the courtroom – qualification and cross-examination of experts, making and meeting objections, persuasive openings and closings, pretrial motions and motions during trial, jury selection and instruction.
REVISION 12 HIGHLIGHTS
The latest edition of the New York Trial Notebook updates 33 chapters with analysis of over 100 recent cases and dozens of new tips and practice notes. Some of the many topics addressed are:
• Second Department states its position on trial courts’ discretion to order unified or bifurcated trials. §8:91
• When discharge of counsel may be a reasonable excuse for being unprepared to proceed with trial. §9:61.
• Unavailability of experts as reasonable excuse for adjournment. §9:71.
• Legislation provides options for non-settling defendants’ to determine their share of liability when one
defendant settles. §10:22.
• Expert testimony about the standard of care in medical malpractice actions. §15:20.
• Qualifications for medical experts. §15:23.
• Entitlement to missing witness charge for disclosed expert who does not testify. §15:80.
• Expert’s analysis must be based on evidence in the record and cannot be incredible or inconsistent. §15:80.
• Sufficiency of expert evidence for establishing causation in professional malpractice cases. §15:101.
• Use of trial subpoena to compel production of party’s medical records. §17:56.
• Sanctions on attorneys for disrespectful conduct in court or in court papers. §19:52.
• Motion to dismiss during jury selection. §20:06.
• Pretextual and non-pretextual Batson challenge factors. §20:143.
• Whether a non-party’s invocation of the 5th Amendment may trigger an adverse inference. §25:112.
• Admissibility of a recording when parts are inaudible. §28:104.
• Preclusion of witnesses’ testimony for non-disclosure or late disclosure or failure of witnesses to
appear for deposition. §29:166.
• Charging the jury on statutory violations. §32:03.
• Inclusion on verdict sheet of questions as to which no party requested instructions. §§32.44, 33:43.
• Inquiry that court must make before replacing a regular juror with an alternate after deliberations have
• Directed verdicts for the defense. §35:60.
• Sanctions against party whose conduct led to mistrial. §36:114.
• Statutes allowing plaintiffs to recover a multiple of damages awarded by the jury. §38:84.
• Determining attorneys’ fees in personal injury cases. §38:161.
ABOUT THE AUTHORS
EDWARD L. BIRNBAUM, former head of the litigation department of Herzfeld and Rubin, is a consultant and lecturer on litigation strategy and trial practice. 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 was Chairman of the New York State Bar Association Committee on the Supreme Court, Chairman of the New York State Bar Association Action Unit No. 6; and a Member of the House of Delegates to The New York State Bar Association. He has served as an arbitrator for the American Arbitration Association, the United States District Court for the Eastern District of New York, and the Small Claims Division of the Civil Court of the City of New York. He has been an adjunct faculty member of New York University School of Continuing Education, teaching
a course on the CPLR. He is a Fellow of The Roscoe Pound Institute, and a Fellow of the New York State Bar Foundation.
Mr. Birnbaum is the subject of biography in fifteen different national and international Who’s Who publications. He has received the highest rating from Martindale Hubbell. He was selected by a
blue ribbon panel of lawyers as a New York Super Lawyer from 2006 through 2017. He was selected by his peers for inclusion in the 2010 through 2017 editions of Best Lawyers in America. He was listed as one of the New York area’s Best Lawyers by New York Magazine each December from 2009 through 2012. In honor of his accomplishments and integrity, he was nominated and invited to Fellowship in the Litigation Counsel of America, a trial lawyer honorary society whose membership is limited to less than one half of one percent of American lawyers. He was named one of the city’s top litigators in AVENUE magazine in 2010 and 2011.
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 four 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.
Mr. Grasso also served in the United States Army, while in Vietnam in the Corps of Engineers, and later in the Judge Advocate General’s Corps. He has written for the Military Law Review and the Army Lawyer. He retired from the U.S. Army Reserve as a full colonel in 1996. His awards include the Bronze Star and the Legion of Merit. He was named one of the city’s top litigators in AVENUE magazine and a New York Super Lawyer in 2012.
HON. ARIEL E. BELEN (Ret.) is an ADR neutral at JAMS in New York City. He was an 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.
Before his election to the bench, Justice Belen served as a Supervising Attorney with the Criminal Defense Division of the Legal Aid Society. He later joined the New York City Law Department and served as the Bronx Borough Chief of the Office of the Corporation Counsel.
Justice Belen is the Chair of the Arbitration and ADR Committee of the New York County Lawyers Association and a member of the International Institute for Conflict Prevention & Resolution. He is a founding member of the Cervantes Society. He was an instructor for many years at the New York State Judicial Institute where he taught all newly appointed or elected New York judges in the art of judging.
He graduated from Brooklyn College and Cornell University School of Law, where he earned a Doctor of Law degree with a Specialization in International Legal Affairs.