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 10 HIGHLIGHTS
The latest edition of New York Trial Notebook updates 32 chapters with hundreds of recent cases and dozens of new tips and practice notes. Some of the many topics addressed are:
- Matters brought in Supreme Court and in Civil Court may be consolidated.
- Pro-consolidation trend continues in New York City Asbestos Litigation (NYCAL).
- An alleged law office error may not be enough to set aside an executed settlement.
- Plaintiff’s second voluntary discontinuance by notice under CPLR 3217(c) operated as an adjudication on the merits.
- When the trial court abused its discretion in dismissing a case, the parties’ high-low agreement should be enforced on retrial.
- While not binding on New York courts, two recent decisions of New York’s Southern District make an interesting contrast in considering whether the size of the firm bears on the decision to disqualify counsel.
- Verdict for plaintiff reversed and new trial required due to Supreme Court’s error in excluding from courtroom a witness who was defendant’s employee and designated representative and prohibiting the witness from communicating with defense counsel during the trial.
- Non-treating physician retained only as an expert may not testify regarding the history of an accident as related by the plaintiff or concerning the plaintiff’s medical complaints.
- Trial court properly precluded defendant’s expert testimony on the interpretation of section 9.1(b)(iii) of the 2003 ISDA Credit Derivatives Definitions (per the 2002 ISDA Master Agreement).
- Expert testimony/affidavits that defendants did not comply with American Society for Testing and Materials (ASTM) guidelines were insufficient to raise a triable issue of fact.
- Although New York courts did not have general jurisdiction over defendant international banking corporation, they nevertheless had jurisdiction for purposes of information subpoenas.
- The Court of Appeals has extended Batson to skin color, noting that “[p]ersons with similar skin tones are often perceived to be of a certain race and discriminated against as a result, even if they are of a different race or ethnicity.”
- Defendant waived objections to plaintiff’s Power Point presentation used in opening statement since defendant reviewed and consented to it in advance.
- Commercial Division Rule 32-a allows the court to require direct testimony by affidavit despite a party’s potential desire to testify live.
- In a civil trial, a witness’s refusal to answer a question by invoking a privilege may be the subject of comment by counsel and of a jury instruction.
- Supreme Court erred in admitting a police report without redacting accident diagram that was not derived from the officer’s personal observations.
- That a Facebook page contained defendant’s name and photo was not sufficient to establish that he had created the page.
- A photo of a tangible item may be useful to lay foundation for admissibility of the item itself.
- Two Court of Appeals rulings underscore that PowerPoint presentations may be used in closing argument, and that descriptive text may be added to PowerPoint slides.
- CPLR 5213(b), which requires that nonjury verdicts be itemized, applies to inquests.
- Plaintiff’s attempt to impeach defense doctor by introducing surreptitious, but undisclosed, video of the doctor’s independent medical examination backfires.
- Denial of an appeal as untimely is not an adjudication on the merits and does not deprive Supreme Court of the power to decide a post-trial motion already made.
- A motion for j.n.o.v or a new trial made before the same judge who tried the case may under the right circumstances be decided without the aid of the trial transcript.
- To remove issue of self-defense from the jury as a matter of law, jury’s finding must have been “utterly irrational,” rather than merely unreachable under any “fair interpretation of the evidence”.
- Whether a party has “substantially performed” may determine whether the opposing party is entitled to prejudgment interest and attorneys fees.
- After Supreme Court has entered judgment, it lacks jurisdiction to entertain post-judgment motions for statutory interest.
- Different rates of interest may be imposed for different parts of an award, particularly if the rate for part of the award is determined by contract.
ABBREVIATED TABLE OF CONTENTS
Chapter 1 New York Courts and New York Law
Chapter 2 Differentiated Case Management and Conferences
Chapter 3 Note of Issue, Trial Calendar, and Trial Preferences
Chapter 4 Jury Demand and Waiver
Chapter 5 Expert Witness and Medical Report Disclosure
Chapter 6 Post-Note of Issue Discovery
MOTIONS BEFORE TRIAL
Chapter 7 Amending and Supplementing Pleadings and Bills of Particulars
Chapter 8 Motions to Sever and Bifurcate, and Changing Place of Trial
Chapter 9 Motion to Continue (Adjourn)
Chapter 10 Voluntary Discontinuance, Settlement, and Offers to Compromise
Chapter 11 Disqualification of a Trial Judge
Chapter 12 Disqualification of Counsel
Chapter 13 Motions in Limine and Motions to Exclude Persons From Trial
PREPARING FOR TRIAL
Chapter 14 Case Theme and Trial Notebook
Chapter 15 Qualification of Experts and Admissibility of Expert Testimony
Chapter 16 Preparing Witnesses, Exhibits and Final Filings
Chapter 17 Subpoenas: Compelling Witness Attendance and Productions at Trial
Chapter 18 Alternatives to Testimonial and Physical Proof
Chapter 19 Interaction With Trial Participants
Chapter 20 Jury Selection
Chapter 21 Opening Statement and Court’s Preliminary Remarks
Chapter 22 Proof: Order, Burdens and Standards
Chapter 23 Eliciting and Refuting Testimony
Chapter 24 Direct Examination of Lay Witnesses
Chapter 25 Cross-Examination of Lay Witnesses
Chapter 26 Direct Examination of Expert Witnesses
Chapter 27 Cross-Examination of Expert Witnesses
Chapter 28 Presenting Nontestimonial Evidence
Chapter 29 Evidentiary Objections and Evidence Rulings
Chapter 30 Preparation and Presentation of Closing Argument
Chapter 31 Objections During Closing Argument
Chapter 32 Jury Instructions
Chapter 33 Verdicts and Verdict Sheets
Chapter 34 Jury Deliberations and Rendition of Verdict
TRIAL MOTIONS AND POST-VERDICT PROCEEDINGS
Chapter 35 Motion for Judgment During Trial (Directed Verdict)
Chapter 36 Motion for New Trial During Trial (Mistrial)
Chapter 37 Other Motions During Trial
Chapter 38 Post-Verdict Proceedings
Table of Cases
Table of Statutes and Rules
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.