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IMG_00000027.jpgThe rules regarding expert’s disclosure in New York, concerning when a Plaintiff or Defendant has to disclose to its opponent an expert witness that it intends to testify at trial if it hopes to use the expert’s affidavit in support of or opposition to a motion for summary judgement, might seem confusing. The rules have caused so much misunderstanding that the Appellate Division, Second Department, went out of its way to clarify them, in a recent decision, Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012). The key to understanding the rules is to understand the decision, both its rationale and the reasons the Second Department went out of its way to explain it in the first place.

As we have previously discussed, if a party serves expert’s disclosure after the Note of Issue and Certificate of Readiness has been filed, without moving to vacate the Note of Issue first, the trial court has the discretion to refuse to consider an expert’s affidavit served in regard to a timely motion for summary judgement. See Rivers v. Birnbaum, supra,102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012), and Constr. by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2nd Dept. 2008). In other words, a party might still be able to use the expert’s affidavit or it might not; it depends on the trial court and, as long as the trial court does not abuse its discretion, the party has to live with whatever the trial court decides. The real trick is to figure out what constitutes an abuse of discretion.

Before the Second Department decided Rivers v. Birnbaum, supra, last October, there was a widespread, mistaken, belief that a court would not and could not consider an expert’s affidavit in conjunction with a summary judgement motion unless the party that wanted to rely on it disclosed the expert before the Note of Issue and Certificate of Readiness were filed. Many read Constr. by Singletree, Inc. v. Lowe, supra, as creating such a hard and fast rule. Whether that was wishful thinking or panic, it was reading something into the court’s decision that was not there. As we discussed last time, Constr. by Singletree, Inc. v. Lowe, supra, only held that it was not an abuse of discretion for the trial court to refuse to consider such an expert’s affidavit.

Rivers v. Birnbaum, supra, was the perfect vehicle for the Second Department to clarify the rule. It was a medical malpractice action that had a sympathetic plaintiff, a mother who claimed the doctors, hospital, and other health professionals, who cared for her during her pregnancies missed obvious warning signs of gynecological cancer she since has suffered from. At the conclusion of discovery, after the Plaintiff filed the Note of Issue and Certificate of Readiness, many of the defendants moved for summary judgement; they used affidavits from experts, however, that they had not previously disclosed. If there had been a hard and fast rule, as many believed Constr. by Singletree, Inc. v. Lowe, supra, provided, then the defendants would have been precluded from relying on those experts’ affidavits. The trial court, however, even though the plaintiff cried foul, considered the defendants’ experts’ affidavits and granted the defendants summary judgement. The Second Department upheld the decision, and its reasoning is enlightening.

The main point behind the Second Department’s decision in Rivers v. Birnbaum, supra, is that the central purpose of a motion for summary judgement is to determine whether there is a genuine issue of material fact that requires a trial; if there is one, the motion must be denied. As the court said, precluding a party from relying on an expert’s affidavit merely because it did not disclose the expert prior to the conclusion of discovery, would not necessarily achieve that goal. Rivers v. Birnbaum, supra,102 A.D.3d at 42, 953 N.Y.S.2d at 243 (2nd Dept. 2012). In other words, an arbitrary decision to uphold an unclear deadline, may not be the best way to ensure that justice between the parties to a given lawsuit is done. What makes this guiding principal even clearer is that the Second Department explicitly stated that a trial court could impose strict deadlines for the completion of expert’s disclosure and, as long as the deadline was clearly set beforehand, the trial court could sanction a party for violating it. Rivers v. Birnbaum, supra, 102 A.D.3d at 39, 953 N.Y.S.2d at 241 (2nd Dept. 2012).

In Rivers v. Birnbaum, supra, the court found that the defendants, through the use of their experts, had made a prima facie showing, as they were required to in this medical malpractice action, that, in treating plaintiff, they had not deviated from the accepted standard of medical care. It also found that plaintiff had not raised a triable issue of fact about this; it was not even a close call. As the court pointed out in great detail, plaintiff’s experts’ affidavits were vague, conclusory, and otherwise deficient.

Therein lies the key. Why would the court deny summary judgement, and either require a trial or let plaintiff win, when plaintiff could not establish even the arguable existence of a genuine issue of material triable fact in opposition to the summary judgement motions? Precluding the defendants from relying on their experts’ affidavits merely because they had failed to disclose their experts prior to the filing of the Note of Issue and Certificate of Readiness, especially when the trial court had not set that point as the deadline for expert’s disclosure, would be a waste of time and a miscarriage of justice.
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1412838_sundown.jpgThe rules governing the use of expert witness affidavits to oppose, or support, motions for summary judgement in New York, especially in the Appellate Division, Second Department, often are misunderstood. There are cases in which the trial court does not consider an expert’s affidavit because the party that tries to use it did not disclose the expert before the Note of Issue and Certificate of Readiness were filed, which is when fact discovery should be completed. See Constr. by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2nd Dept. 2008). There are other cases, especially more recent ones, in which the trial court considers an expert’s affidavit despite the fact that the expert was not disclosed before the Note of Issue and Certificate of Readiness were filed. See Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012). There actually is a hard and fast rule as to whether a party will be able to use such an affidavit: It’s firmly within the trial court’s sound discretion.

As we previously discussed, an expert witness is allowed to provide her opinion at trial when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the experience and understanding of the typical juror. See De Long v. Erie Cnty., 60 N.Y.2d 296, 307, 457 N.E.2d 717, 722 (1983). An expert often also is necessary to oppose, or support, a motion for summary judgement, which is the procedural equivalent of trial. See Rivers v. Birnbaum, supra, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012).

Plaintiffs and defendants both must disclose, prior to trial, the experts they intend to testify on their behalf at trial. The statute that governs expert’s disclosure, however, times the disclosure in terms of a trial, not in terms of a motion for summary judgement. CPLR 3101(d)(1) provides, in relevant part:

d) Trial preparation. 1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion. However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just.

[Emphasis supplied].

The problem comes from the fact that parties often wait until close to trial to disclose to their opponents the experts they intend to call at trial. They do this for many reasons, including the expense involved, since most experts command sizable fees and parties often want to be sure that the case will actually go to trial before they incur the expense of retaining an expert to testify at trial. There also is the very human trait of not doing something until it absolutely has to be done; there truly is nothing more productive than the very last minute.

The confusion comes from how the disclosure requirements of CPLR § 3101(d)(1), apply to motions for summary judgement; in particular, when parties need to disclose their experts, and what penalties they face if they fail to meet the deadline.

In Constr. by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702, (2nd Dept. 2008), the Appellate Division Second Department scared all the procrastinators straight. It upheld the lower court’s decision to bar the use of experts’ affidavits in opposition to a motion for summary judgement because the party that wanted to use them failed to disclose them before the Note of Issue and Certificate of Readiness were filed. Put another way, the parties agreed that all the preliminaries were completed, that the case was ready for trial, and then one of them said, “But wait, there’s more.” The court, however, did not go along.

If you look at the decision in Constr. by Singletree, Inc. v. Lowe, supra, you can see why the trial court issued such a harsh decision. The case involved a house which one of the defendants, J.C. Construction Management Corp, built for the other defendant, Lowe. The plaintiff, Construction by Singletree, Inc., was a subcontractor on the same job which sued the defendants to recover the money it claimed it was owed for its work. The issue on appeal was Lowe’s cross-claims against JC to recover money for what he said was JC’s breach of warranty and to collect the liquidated damages called for in the contract between them; i.e., Lowe alleged JC improperly installed the flooring and insulation systems and should pay him as a result. The only problem was, Lowe evidently waited too long to offer any substantial evidence to back up his claims, and then he tried to save the day by labeling that evidence as expert’s disclosure.
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468027_rubix_cube_solved.jpgThere is no shortage of trial attorneys in New York, or around the country. What makes a good trial attorney, however, is open to debate. How to become one is even more difficult to define. Is it something you can master through hard work and perseverance; is it something you have to have a natural aptitude for; or is it some combination of both? As we previously discussed, there is a lot of practice involved in trial practice. It is important to practice and to do it in the right way; but is it enough?

People believe they know a good trial attorney when they see one and often even when they don’t. Most people base their opinion, in large part, on results. Many believe that a good trial attorney is the lawyer who wins huge verdicts, defeats frivolous lawsuits, repeatedly gets his indicted clients off with not guilty verdicts or hung juries (Bruce Cutler comes to mind), or a prosecutor who finally does send the bad guy away for an extended prison stay (Andrew J. Maloney and John Gleeson sound familiar). Judging trial attorneys based on results alone is at least somewhat misleading. It ignores the fact that lawyers can only play the hand they’re dealt; it’s what they do with that hand that’s important. Would anyone argue that Johnnie Cochrane was a better trial attorney than Clarence Darrow, even though Darrow lost one of the most famous trials in modern history?

Even if the characteristics of a great trial attorney are hard to define, there most certainly are a large number of lawyers who would like to be one, and no shortage of qualified consultants to help them achieve success in any given case. The question is, can this be done and who, if anyone, can do it?

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660698_u_s__supreme_court_under_construction.jpgDid you ever wonder what makes a trial attorney? Trials are strange, unique things that everyone seems to have an opinion on: An opinion on the outcome, the evidence, the witnesses, the jurors, and the lawyers; especially the lawyers. They did a good job; they did a bad job; can you believe they asked that question? How could the lawyer let that witness testify? What was he thinking? Everyone has heard the criticism, the Monday morning quarterbacking. Has anyone really thought about what goes into actually conducting a trial; the planning; the execution? Watching and learning from what others do, how they do it, what they do right and what they do wrong, all help you become a better trial attorney; but in the end it’s up to you and you alone. That’s what makes it great.

Being a trial attorney is something you either love or hate. If there is one word that sums it up, that word is intense. It’s nothing if not intense. You are the one calling the shots, executing the game plan, calling the audibles trying to anticipate the defense. Everyone is looking at you, looking to you, during the entire process. There’s pressure: What happens if you make a mistake, flub a direct examination, or go too far in your opening? What if you don’t listen closely enough during the direct examination of your opponent? What if you miss something during your cross-examination of the same witness, and mistakenly give him a pass on a point crucial to your case? These can keep you awake at night, both in the days leading up to the trial and, most definitely, in the nights during the trial. It’s not always easy to relax during the trial. When you’re on trial, it’s not easy thinking of anything else.

But what if you get it right, nail the cross of your adversary’s main witness and blow his case out of the water? What if you pick up something that the other side said inadvertently and use that little opening to wedge through your main point? What happens if all of your preparation and hard work allow you to improvise and react seamlessly, gain the respect of the jury, get them to listen, not just hear, what you’re saying and win them over? What happens if you actually do your job well, do it right, and win? When all the eyes are upon you, when everyone is waiting for you to make a mistake, what if you actually come through in the clutch? That is something you remember, always.

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1103433_perfect_symmetry_symbol_like_a_propeller_5.jpgTrial practice is well-named; it involves a large amount of practice. How you practice and prepare, though, is often just as important as whether you do so at all.

As any trial attorney will tell you, preparation is important. A trial attorney will map out what he wants to say and how he wants to say it; all the while trying to figure out the best way to win over the jury. He will prepare his opening statement, the direct examinations of his witnesses, the exhibits he wants to get admitted into evidence through them, the cross-examination of his adversary’s witnesses, and his closing argument. Even after he prepares them, after he writes numerous drafts of each until he is completely comfortable with them, the trial attorney often will say them; learn them; memorize them; i.e., he will do a dry run of each. His colleagues may get annoyed; even if he closes the door to his office, they can still hear him. His family may not want to listen to one more rendition of his closing argument; no matter how eloquently he sums up, they just are not interested in all the reasons why the insureds intentionally set fire to their house to collect on their homeowner’s policy of insurance and stop foreclosure. As the trial attorney drives to the courthouse, talking and gesturing to himself as he rehearses his opening statement one last time, the people in the cars around him probably think he’s a crazy person arguing with himself.

A recent scientific study published in the peer-reviewed online journal Behavioral and Brain Functions, suggests that adding movement to “dry run” rehearsals in disciplines where such rehearsals are routinely used, significantly improves performance. The study involved a group of 12 high jumpers and compared the performance of those who only pictured themselves going through a high jump, with those who added certain “dry run” or limited physical movements to their mental rehearsal. In this case, the high jumpers, though standing still, added arm movements while imagining themselves executing a high jump. The study was based, at least in part, on the fact that picturing yourself performing a task, i.e., mentally executing it without any physical movement, can improve your ability to perform that task, and that such imaging uses a similar part of the brain as actual physical practice. The study found that mental rehearsal alone increased performance by 35%, but adding simple physical “dry run” movements to the mental rehearsal, increased performance by 45%.

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844942_lantern.jpgIn our last article, we spoke about expert witnesses and how they play an important, if often misunderstood, role in trials in New York. Their main function is to provide opinion evidence about important issues that may be beyond the understanding of the average person, because of the specialized skill or training involved. Scientists, engineers, forensic accountants, and doctors, each can be expert witnesses under the right circumstances. They will not be able to testify as expert witnesses merely because of their title or because of their superior knowledge. The jury actually has to need them to shed some light on an issue important to the case that is simply beyond the knowledge and experience of the average juror. Many times, if a jury can figure it out on their own, the trial court will let them do just that and prevent an expert from testifying on the given subject.

A few interesting cases clearly show the limits of expert testimony in New York. In Ferguson v. Hubbell, 97 N.Y. 507 (1884), the main issue was whether the defendant was liable for two fires that had been intentionally set to clear brush and vegetation off his land. The fires had spread, after the wind kicked up, to plaintiff’s land and destroyed plaintiff’s house and barn. The plaintiff claimed that the fires should not have been set because it was too dry and too windy to control them. At trial, the defendant established all the facts the jury needed in order to decide whether the fires had been properly, and safely, set. He and his witnesses testified about the weather conditions, the speed of the wind, and the condition of the land at the time of the fires. The defendant, however, evidently succumbed to the urge to overplay his hand. He and his witnesses offered their opinion that it was proper to set the fires when they did. This was based on their supposed superior knowledge and experience in clearing land as farmers. The defendant won at trial; the jury ruled in his favor. The verdict, however, was overturned on appeal. The court held that no one should have been allowed to offer their opinion as to whether the fires had been properly set; that was the central issue the jury had to decide. According to the court, the jury had the common knowledge and experience with fire, brush, and timber, necessary to determine, based on the evidence presented at trial, whether the fires had been properly set. The important thing was not that the defendant and his witnesses had superior knowledge; it was that there was no need for their superior knowledge. The jury had a sufficient understanding of the issue to allow it to make a rational, reasonable, and just decision, without the help of expert opinions.

The much more recent case of Christoforatos v. City of New York, 90 A.D.3d 970, 935 N.Y.S.2d 641 (2nd Dept. 2011), dealt with a situation which is more common today than the burning of a fallow field: The plaintiff slipped and fell when he was entering a portable restroom in a New York City park. He claimed that he slipped on a bare patch of ground that had become slippery in front of the entrance to the restroom. The plaintiff sought to offer expert testimony about whether it was proper to place the portable restroom on grass, rather than pavement, where people walking to and from the restroom could cause a bare spot that could become slippery when wet. The appellate court upheld the decision of the trial court to exclude the offered expert testimony because it was unnecessary; bare spots being caused by large numbers of people walking on grass and those bare spots becoming slippery when wet, was something well within the knowledge and experience of most jurors. It did not matter that the plaintiff’s expert might have superior knowledge regarding the propensity of grass to wear out and die when trampled upon by a sufficiently large number of people or of the particular viscosity of the resultant bare ground when it became wet and turned to mud. What mattered most was that just about everyone has seen bare spots on grass, be it a self-made walking trail across a field in a park or a worn out section of a baseball field; everyone understands that the bare spots become slippery when wet; and jurors do not need an expert to tell them what this means or what can happen as a result.

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876606_lab_work.jpgTrials are fascinating. People love to watch them. Crime dramas, police stories, and shows that feature the ins and outs of a law firm, and the lawyers that make it work, have filled prime time TV for generations. Just about everyone has their favorite. Trials, which form a big part of each, are just as interesting from the inside. In New York, there are intricate rules of evidence; the subtleness of persuasion without overt argument, as in a finely hewn opening statement; the art of insightful cross examination; and the passion of a good closing argument. But one of the most often misunderstood aspects of the trial is the expert witness, and the role she plays in persuading a jury and winning the case.

Every trial has witnesses. Some give live testimony. You get to hear what they say as they say it; watch their facial expressions and their body language as they testify; actually see how they react to tough questions. Others merely have their deposition testimony read. You get to hear a lawyer read what the witness testified to when she was deposed, when the attorneys questioned her before the trial even began; not exciting, but often necessary. Witnesses most often testify about facts, about what they saw, what they heard, or what they did. The reason for this is fairly simple: When witnesses testify falsely about facts, it is much easier to show they are lying, and to punish them accordingly, than if they testify falsely about their opinion. See Ferguson v. Hubbell 97 NY 507 (1884). It is one thing to show that an opinion is wrong; it is much more difficult to demonstrate that the person who gives an opinion does not really believe it.

Sometimes witnesses can testify as to their opinions. An expert witness can offer her opinion about why certain things happened. When a case involves an important matter involving art, science, or technical knowledge that requires special skill or knowledge that the average person does not normally have, an expert is allowed to give her opinion to help enlighten the court and the jury. An expert will not be permitted to offer her opinion at trial merely because she has greater knowledge or experience in a given area than the average juror. Her opinion also has to help clarify an important issue which is beyond the understanding of the average juror. See De Long v. Erie Cnty., 60 N.Y.2d 296, 307, 457 N.E.2d 717, 722 (1983). In other words, it’s not enough that an expert is an expert; the jurors must need her opinion in order to be able to make informed judgements upon something that is beyond their knowledge and understanding.

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