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 13 HIGHLIGHTS
The latest edition of New York Trial Notebook updates 36 chapters with over 200 recent cases and dozens of new tips and practice notes. New Uniform Rules for Supreme and County Court, effective February 1, 2021, are also covered. A brief sampling of other new and updated topics includes:
- Res judicata defense is not waived when a defendant’s failure to assert it in its answer does not take the plaintiff by surprise. §7:32
- When parties file a stipulation of discontinuance, a plenary action is required to enforce or set aside a settlement; the court does not retain the power to exercise supervisory control over previously terminated actions. §10:42 • Although the plaintiff’s deposition testimony partially contradicted factual conclusions reached by her expert witnesses, the expert opinions were based on other record evidence and were neither speculative nor conclusory and so were sufficient to defeat summary judgment. §15:02.
- Doctor’s affidavit stating why the defendants’ treatment and care of the plaintiff’s dog was in accordance with good and accepted veterinary practice was sufficient to establish the defendants’ prima facie entitlement to summary judgment, notwithstanding that he was a defendant. §15:10.
- A Frye hearing is generally unwarranted absent a novel or experimental scientific theory, but evolving opinions in a scientific community may occasionally require a Frye hearing with respect to a familiar technique. §15:131. • New York courts have adopted revised Standards of Civility. The First and Second Departments of the Appellate Division have promulgated their own rules to foster proper courtroom decorum. §§19:13, 19:14. • Defense counsel’s objection to plaintiff’s testimony that she had a fractured tooth was properly sustained; plaintiff was merely repeating hearsay statements allegedly made by her doctor and she never called the doctor nor introduced any medical records or X-rays showing that she had a fractured tooth. §29:90 • If a trial defendant wishes entities not before the jury to be included in the charge as being potentially liable, it must have put in evidence that could support a jury verdict against them. §32:12.
- Verdict sheets must not allow for the possibility of relitigating issues already decided as a matter of law. §33:29. • Plaintiff’s attempt to modify damages awarded by the jury by submitting a proposed judgment to the court that did not conform to the verdict and thereafter submitting correspondence as an informal motion was an improper substitute for a CPLR 4404 motion. §38:10
- Where a jury verdict awards plaintiff damages for past pain and suffering and future medical expenses, but not for future pain and suffering, the verdict on future pain and suffering is contrary to a fair interpretation of the evidence and constitutes a material deviation from what would be reasonable compensation. §38:53.
- An agreement between two sophisticated business people with benefit of counsel that one would purchase the other’s share of their mutually owned LLC and, in the event of litigation, the “substantially prevailing party” would be entitled to two times reasonable attorneys’ fees should be enforced according to its terms. §38:160
- Attorneys not discharged for cause are entitled to an attorney’s fee, and if their work is adequately documented, they are entitled to a retaining lien on the file. §38:160.
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.