Herzfeld & Rubin, P.C.- Publications

Products Liability *Resources on Trial Practice* By Michael Hoenig - New York Law Journal - December 12, 2005	Print article

This column suggests that New York and other litigators consider improving their prowess in 2006 (and beyond) by adding two new, outstanding "how to" litigation manuals to their reference arsenals.

In prior columns, we described three other exceptional resources that litigators ought to acquire: (1) "New York Objections" by Supreme Court Justice Helen E. Freedman; (2) "New York Civil Practice Before Trial" by Michael H. Barr, the late Appellate Division Justice Myriam J. Altman, Burton N. Lipshie and Sharon S. Gerstman; and (3) "New York Motions in Limine," by Carolyn Greenwald and David N. Finley.^[1]

Put the former three resources together with the two new ones described in this article and litigators will have pragmatic, virtual, tactical nuclear weapons for offensive purposes and concrete-reinforced revetments for defensive purposes in civil litigation. These new trial-related manuals are: (1) "New York Trial Notebook" by Edward L. Birnbaum, Carl T. Grasso (seasoned trial specialists) and Justice Ariel E. Belen (now serving as an Associate Justice of the Appellate Term, for the Supreme Court for the 2nd and 11th Judicial Districts);^[2] and (2) "Federal Motions In Limine" by Stephanie Hoit Lee and David N. Finley.^[3]

'New York Trial Notebook'

Let's go first to the "New York Trial Notebook" (James Publishing Inc., Costa Mesa, Calif.). But, preliminarily, a disclosure for readers: authors Edward L. Birnbaum and Carl T. Grasso are members of the same law firm of which this writer is a member. Justice Ariel E. Belen, the third author, is not connected with the writer's firm. That said, the plain, objective fact is that "New York Trial Notebook" is a knockout of a work product for about $100. One gets not only the voluminous loose-leaf text and forms for the practitioner but also a full-text CD-ROM of the entire book.

And what a practical book this is! There are 37 chapters. Each is divided into clearly titled and numbered sections. The detailed Table of Contents by section alone runs over 50 pages. The text runs some 730 pages. About 2,000 cases are cited, many with informative parentheticals. There are 78 practice forms that lawyers can adapt for their particular case circumstances. The forms appear at the end of individual chapters and are listed at the end of each chapter's section table of contents. There is a central "Directory of Forms on CD-ROM," which is a quite helpful feature for those who want to find a form without reading the chapter. Unfortunately, the printed book itself does not have such a form directory. There is the printed, blue-page "CD-ROM Guide" at the outset of the loose-leaf binder, which does contain a directory of the forms available on the CD. Since those forms are the ones in the text, that CD-ROM directory could also serve as a listing of forms for the text. However, the reader who ignores the CD-ROM might not know about it.

The authors are ambitious. They say: "This book is about how to try civil cases in the civil courts of the State of New York." (§1.01 at p. 1-3). That may be quite a mouthful depending on how one reads that statement. If it is construed as a "warranty" that a first-year associate will, upon completing the text, become as good a trial specialist as living-legend Henry Miller, there will be some disappointment. However, read realistically, there is no question that a treasury of information "about how to try civil cases" beckons the reader. The uninitiated may find surprises.

Informative Tips

For example, §1:44 of the book refers to the Appellate Division's First and Second Department rules governing court decorum. One rule that "some trial counsel have great difficulty following" is the requirement that "no attorney shall argue in support of or against an objection without permission from the court; nor shall any attorney argue with respect to a ruling of the court on any objection without such permission." The attorney, we are told, can make a "concise statement of the particular grounds," where not otherwise apparent, to call the court's attention to it or to preserve the issue for appellate review [(1st Department Rules §604.1(d)(4); 2d Department Rule §700.4(d))]. This provision does not appear in the Third or Fourth Department Rules. Note the abundance of information this tiny sliver of text has provided: one gets the essence of the rule's admonition, the conduct that is permitted, the rules' citations, and the absence of such a provision in the other departments' rules.

In the chapter on "Differentiated Case Management" (DCM), New York state courts' attempts to track each case according to its level of complexity, the authors give a valuable practice tip caution for downstate counties: "discovery motions are being strongly discouraged." Thus, if a discovery dispute arises after issuance of a preliminary or compliance conference order, "counsel are directed to contact the court for assistance in resolving the dispute." Only if the matter cannot be resolved by conference can a motion be made for discovery relief." (§2.03). A handy table sets forth the various pre-DCM and DCM case deadlines (§2:10).

There are numerous informational nuggets within the treatise. For example, when a hospital (or other established defendant) discloses that it has liability insurance, does a litigant have a further right to ascertain the number of claims brought under the policy and what payments were made on those claims? The book tells us that courts are split on the issue, including a rift in the Appellate Division departments. Case law is cited and pithily described. (See §2:51). Or, for example, the authors detail the traps lawyers may encounter when trying to settle a case "in open court," as allowed in Civil Practice Law and Rules (CPLR) 2104. Thus, the reader is told that an announcement of a settlement during a calendar call or court conference is insufficient and there may be danger that a party may renege. The authors say that lawyers "should insist that a settlement stipulation be placed on the record and before the court" to avoid problems. (§2:62).

The "Note of Issue" is an important document in New York practice and triggers quite a few consequences. (See §§3:20-3:26). Suppose, however, new parties are added to the action after the note of issue was filed. If one represents the new party, what can be done? A practice tip says one could move for a severance or to strike the case from the trial calendar (§3:24 (citing pertinent cases)).

Can a litigant move to exclude persons from the trial courtroom? Sections 13:40 to 13:45 guide readers as to who can be excluded and when. This discussion includes experts although, sometimes, experts can be present. Case law is cited with informative parentheticals. Although the general rule is that parties have a right to be present, the authors advise that this is not absolute. Thus, for example, a physically and mentally incapacitated plaintiff can be excluded from the liability phase of a case and, sometimes, plaintiff infant children, e.g., who do not speak English and are incapable of assisting counsel may be excluded (§13:44). The forms at the end of this chapter include a notice of motion and affirmation to exclude witnesses from the courtroom and, even, a motion and affirmation to permit the presence of an expert during opposition testimony.

Trial Subjects

There is advice on devising a case theme and preparing a trial notebook (Chapter 14); qualifications of experts and admissibility of expert testimony (Chapter 15); preparing witnesses, exhibits and final filings (Chapter 16); subpoenas and compelling witness attendance and productions at trial (Chapter 17). Regarding only subpoenas, there are lots of handy practice tips: Should you subpoena a party present in the courtroom? Can one ask the court for an adverse party to be present on the day you will call him to the stand? What happens when a subpoenaed witness refuses to return a second day to complete cross-examination? Does a subpoena of medical records have to enclose a written authorization from the patient? What is the territorial reach of a subpoena? Is it advisable (though not required) to include an extra copy of the subpoena to the recipient and why? (Hint: CPLR 2301 requires that the subpoena direct the recipient to furnish a copy of the subpoena along with papers or items delivered to a court; compliance is thereby facilitated by providing an extra copy suitably marked).

There's a useful chapter called "Alternatives to Testimonial and Physical Proof" embracing judicial notice, stipulations, presumptions (conclusive and rebuttable) and inferences. Section 18:62 lists examples of rebuttable presumptions along with supporting case law. Did you know the rebuttable presumption that delivery of a check is for payment of a debt rather than a loan? Or that alcohol-breathalyzer tests properly admitted are accurate? And that a driver falling asleep at the wheel is presumed negligent?

Chapters 19 to 35 cover the trial. The chapter on jury selection (Chapter 20) sets out considerations on voir dire of the jury as well as the alternative methods of seating and questioning jurors. If the reader is unaware of what are "White's Method," the "Struck Method," "Strike and Replace Method" and others, where permitted or submitted and approved by courts, this discussion is for you. Practice tips abound throughout this chapter.

As one might expect, there are fulsome discussions of opening statements (Chapter 21); proofs, including the order of proof, burdens and standards (Chapter 22); cross-examination, expert witnesses and the numerous other components of a trial. There's a chapter on closing arguments (Chapter 30) and objections during summation (Chapter 31). Discussion of jury instructions and verdicts is precise and to the point. Indeed, the authors even provide forms of proposed jury instructions that one does not find in the Patterned Jury Instructions (PJI) (see Forms 32:10 to 32:90). Chapters on motions for directed verdict, mistrial and other motions are cogent and concise.

There are practice tips throughout the book, case examples for much of the advice and, exceedingly helpful, very clear headings, titles and subtitles. The reader can thereby home in on what he or she is looking for though, more often than not, the reader will want to read the particular chapter in its entirety for context and overall interest. A Table of Cases (with alternate citations) and a detailed Index are located at the end. All is not perfection, however. Some "typo"-like errors were a bit distracting. Thus, in §2:65, the word "affect" was used instead of "effect." And in §14:41, the word "meddler" was misspelled "medler" in the title (though the text had it correctly).

Who can benefit from this book? All litigators. Aspiring trial lawyers will thrill over the giant tapestry the authors have woven. Seasoned trial lawyers will appreciate the case examples, practical hints and references to the CPLR. Outside law firms who open offices in New York or attorneys who move here or pro hac vice applicants need this book to bone up on the differences and nuances of New York trial practice, not to mention the unfamiliar terminology and local words of art. The CD-ROM of the book is handy for the digital-age litigator thereby putting encyclopedic knowledge in portable form. For about $100 apiece, one can get a bunch of these books and let each litigator have one — or give them as gifts.

In Limine Motions

"Federal Motions in Limine," subtitled, "Evidence Exclusion Guide" (by Stephanie Hoit Lee and David N. Finley) is the federal counterpart to the book, "New York Motions in Limine," which this writer reviewed in our May 2005 column.4 Here, too, the purchaser gets not only the printed text but also a companion CD-ROM numbered to correspond with the text. The publisher is Litigation ONE in Tustin, Calif. The cost is about $120.

As with the state court in limine treatise, this book on federal court in limine practice eschews elaborate discussion, narrative and scholarly, law review-style commentary. Instead, the book's terse narrative is tailored for the busy litigator — crisp, lean and divided into subsections by bold print, numbered titles informing the reader about the subject matter. Here one will find the principle or statement of evidence exclusion which can be used along with supporting case citations, relevant quotes or descriptive parentheticals. Sample motions or elements of such motions are provided.

The general pattern of each chapter following the first is the same. The first chapter generally informs about in limine law and procedure, provides drafting suggestions and sets forth a sample in limine brief and order. The reader will note that this book provides authorities listed by specific federal circuit. All the federal circuits are covered so the cumulative mass of research work product is enormous for this size of a loose-leaf text.

Chapters individually focus on the subject matter of the motion and then follow the same user-friendly pattern format. Take Chapter 2 as an example — a motion to exclude prejudicial evidence. The authors set out a suggested text of the motion in bold print. Then there is a "motion summary" pithily describing the motion's intent. A subsection then sets forth, by circuit, supporting case law with pertinent parentheticals. This is followed by a subsection presenting (by circuit) "opposing authorities" in the form of case citations and parentheticals. The busy lawyer thus gets presentation of both sides of the coin and can adapt his or her motion to blunt an adversary's likely opposition. Since the topic of "prejudicial evidence" may cover a lot of territory, Chapter 2 goes on to similarly specify motions to exclude: evidence that will waste the court's time; confusion or misleading evidence; evidence used to create an emotional bias; and cumulative evidence.

There also are chapters on irrelevant evidence, writings and physical evidence, tests and scientific evidence, discovery motions, character evidence and witness evidence. This writer was particularly interested in the treatment of scientific evidence (see Chapter 5) and experts (see Chapter 8). The discussion was, as stated, terse, crisp, lean and all-business. The reader will have to understand that a case-law-driven presentation such as this will need case law updating since Daubert and Frye developments are unfolding virtually daily. Yet, the book presents the busy lawyer with a good start. And prudent lawyers need to update case law in any event.

Why does one need a guide book on federal motions in limine? Because it is important to expunge from a trial, at an early stage, those portions of opposition proof that are excludable for the many grounds detailed in the book. The motion in limine is a good mechanism for doing that. Judges will be receptive to streamlining cases where appropriate. This book intends to tell the practitioner when such a motion is appropriate (as well as revealing opposing case law). Adding this work product to the other four texts mentioned above will give litigators a formidable reference library for most situations arising before and during trial.

Michael Hoenig is a member of Herzfeld & Rubin

Endnotes:________________________________________________________________________________________________________

[1.] New York Supreme Court Justice Helen E. Freedman's, "New York Objections" (James Publishing, Inc., with current updates), was reviewed in Hoenig, "A Resource on Making Objections," New York Law Journal, Jan. 10, 2000, p. 3; "New York Civil Practice Before Trial" (James Publishing Inc., with updates) was reviewed in Hoenig, "A Resource on Litigation Practice," NYLJ, Feb. 13, 2002, p. 3; "New York Motions in Limine; Evidence Exclusion Guide" (Litigation ONE Publishing 2005) was reviewed in Hoenig, "Resources on Motions in Limine," May 9, 2005. p. 3.
[2.] E.L. Birnbaum, C.T. Grasso and the Hon. A.E. Belen, "New York Trial Notebook" (James Publishing Inc. 2005).
[3.] S.H. Lee and D.N. Finley, "Federal Motions in Limine; Evidence Exclusion Guide" (Litigation ONE Publishing. Tustin, Calif., $120, 2005).
[4.] Hoenig, "Resources on Motions in Limine," NYLJ, May 9, 2005, p. 3.