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Articles Posted in Trials

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IMG951105-e1588374115385-224x300I tried a case recently which made it clear that the way I did it might be a little out of the ordinary.  Whether that’s a good or bad thing, is up to you.

It was a bench trial, so it was just the parties presenting their cases to a judge, not a jury.  We were the Plaintiff in a commercial case, so we went first.

Our case was simple: We had a contract to perform a job for an agreed price; we completed the job, but the Defendant wouldn’t pay us what it promised.

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https://www.newyorkbusinesslawyerblog.com/wp-content/uploads/sites/396/2018/12/Ed.IMG_20181226_145620-002-300x243.jpgHow can you win your trial?

The other day I stopped by a meeting. I didn’t have a lot of time, so I didn’t plan to stay long, but I saw a map on a table.  It had little dashed lines, weird-looking circles, and different shades of green.  Another guy came over and we started talking about the map, but not really.  We talked about the hills and valleys, ridges and streams, songs and floods and laughs and climbs; good stories, all.

That little map came alive.  The map was what we saw and who we met, and the cadence we sang, still clear as a bell, at 10,000 feet.

We saw the blue sky and the bald eagles; felt the hot sun and the cold rain; wore the heavy backpacks and tasted the Lara Bars (don’t ask).   The map wasn’t the story, but it let us live the story again.

It’s funny how little things can help tell a story; there’s no guaranty fancy gadgets or powerful software will.  Lectures describing the minute details of an argument are no substitute for a good story. People love a good story.

A trial is really just a chance to tell your client’s story, to convince people she should get what she deserves.  Even in commercial litigation, you get to put a name, and a face, on the company you represent, show the real people who make it work and tell their side of the story.

By the time you get to trial the facts are pretty much set in stone.  There’s more than one way, however, to tell them.  Present a straightforward timeline and you might put everyone to sleep. Tell a good story, with a who, a what, a where, a when, and, most importantly, a why, and people just might pay attention. Make it compelling and let the judge and the jury get to know your client, feel for your client, and chances are you’ll succeed; not always, but it can be your best shot.

If you read this blog you’ve probably seen this place the map shows. It’s gloriously miserable. It’s where you can sit at a stream and hear a subway car rumbling towards you just before you scramble up the overgrown side of a cliff to avoid the oncoming flood, barely picking up your gear as you go. The kind where you steer clear of the rattler minding its own business and try to avoid the streams that like to run through your tent.  The kind with sleet so big you can have snowball fights with softballs in the summer, under double rainbows that come out when the sun comes back.  The kind where you watch the sun rise over the canyons before you go to the top of the world, with snow-covered mountains and the desert on opposite sides.  The kind you never quite dry off in, but no matter how wet you get, never quite get clean, either. Where you eat what you bring and hoist it at the end of the day because you want to be there to have it in the morning.  And the place you laugh about, all this time later. Everyone should have a place like that. Continue reading

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FrozenHow can you prove something exists when it can’t be found?  If you ask an investigator, or a New York Litigator, it may not be as hard as you think.

There are always facts to ponder.  The other day I was listening to a podcast with an astrophysicist explaining Dark Matter.  It was more interesting than it might sound.

Dark Matter: things are supposed to work a certain way, interact with each other according to certain well-defined rules.  Think of Newton and the falling apple.  But what if they don’t?  What if the apple fell sideways, instead, as if something else is there, something you can’t see?  What if the only way to tell that it’s there is because it should be, but you just can’t detect it?  It would be something like looking at a dinner table with empty plates with crumbs, and pots and pans with scraps of food, but no one around. It just might have been a really good meal.

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mountain-haze-1130128-m.jpgWe spent our last entry talking about when a trial court faced with a motion for summary judgement can consider an affidavit from an expert even though the expert was not disclosed until after the Note of Issue and Certificate of Readiness were filed. The answer, more often than not, at least in the Appellate Division, Second Department in New York: When the expert makes a difference by establishing the existence of a material issue of triable fact. See Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012), and Begley v. City of New York, 111 A.D.3d 5, 972 N.Y.S.2d 48, 72 (2nd Dept. 2013), leave to appeal denied, 23 N.Y.3d 903, 988 N.Y.S.2d 130 (2014).

Rivers v. Birnbaum, supra, and Begley v. City of New York, supra, were not the actual sea changes they might appear to be at first. Though important decisions, the rule they enunciated was applied in many cases before they were decided and the ones in which it was not applied were the exceptions that proved the rule.

King v. Gregruss Mgmt. Corp., 57 A.D.3d 851, 852-53, 870 N.Y.S.2d 103 (2nd Dept. 2008), was a personal injury action in which the plaintiff was injured when he tried to cut open a steel drum containing windshield washer fluid with an electric saw. The Second Department held that the trial court should not have considered the affidavit from the plaintiff’s expert in opposition to the defendants’ various motions for summary judgement and should have precluded the expert from testifying at any stage of the proceedings.

The expert in King v. Gregruss Mgmt. Corp., supra, undoubtedly would have made a difference. It just appears that there was no way to verify the facts on which his opinion was based and his testimony actually was more about basic, critical, and unverifiable facts, than scientific opinion. All told, the case is a fine example of a plan too smart by half, and illustrative of the type of behavior that more often than not will be penalized, if for no other reason than it should be. It is that behavior, more than the simple late disclosure of the expert, which prevented the expert’s affidavit from being considered:
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case-ilustration-1015897-m.jpgIt has been some time since we last spoke about the use of experts to oppose motions for summary judgement in New York. The topic, however, is still relevant. Some continue to believe there is a hard and fast rule, at least in the Appellate Division, Second Department, which forbids a trial court from considering an affidavit from an expert unless the party offering the expert’s affidavit served full expert’s disclosure pursuant to CPLR 3101(d)(1) prior to the filing of the Note of Issue and Certificate of Readiness or at least moved to vacate the Note of Issue and Certificate of Readiness if they had not served expert’s disclosure by then. As we pointed out in our last entries on the subject, there is no such concrete rule and there never really was. A case that should go to trial most often does; it withstands a motion for summary judgement, unless the party who uses the affidavit nefariously refused to disclose the expert in time.

There have been a series of decisions that have clarified that this is the rule. The first was Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012). Another, more recent example, is Begley v. City of New York, 111 A.D.3d 5, 972 N.Y.S.2d 48, 72 (2nd Dept. 2013), leave to appeal denied, 23 N.Y.3d 903, 988 N.Y.S.2d 130 (2014), which is especially instructive because of the way it summarizes the reasons for the rule. It holds, in relevant part:
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swing-in-a-park-1351566-m.jpgHave you ever wanted to do absolutely nothing: nothing real, nothing hard, nothing serious, at least not for a little while? Maybe lie down on the beach, read a good book, go play a round of miniature golf with your family and friends? Just be a little silly, just a little?

Remember when you were a kid, when you had the summer to yourself, to do what you wanted when you wanted with whoever you wanted? Just go find some friends and play: a game of basketball, or stickball, or maybe a game of manhunt; whatever you and your friends decided to do, however you agreed to do it. You and your friends would make up the game, and maybe the rules as you went. You’d try to be fair, make sure everyone had a shot, but still try to win. It might have been a long time ago but it still was memorable.

Well maybe all fun and games aren’t only fun and games after all. Maybe they’re a necessary part of life that can tell you a lot about a person and how they interact with others, how they handle complex social interactions, get along with people and convince them to participate in activities. Maybe, just maybe, they also can help you pick a jury. Yes, this is a law blog, and yes, everything has to get around to the law sooner or later; though it sure is fun to think of being 14 again with the whole summer in front of you.

While driving to work the other day I heard an interesting story on NPR’s Morning Edition. They were interviewing a Canadian researcher, a fellow by the name of Sergio Pellis. He was saying how important recess is to children; that countries that have more recess usually have students that perform better academically than those with less. It was more than just that, though: free play is what’s important, and the reasons were fascinating.
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Posted in: Trials
Tagged: Jurors
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dumbbells-1356802-m.jpgThere’s a new term that’s making the rounds, which might make us reconsider whether common wisdom is always wise and might make trial lawyers re-think how they select jurors: pre-crastination. As we’ll see, it means that maybe trial attorneys shouldn’t decide whether someone can be a good juror in spite of his old age and frailty, but because of them.

Everyone’s heard of procrastination: Why do something today when it can wait until tomorrow? Most people procrastinate even though they know it’s not a good idea. There might be nothing more productive than the last minute but, when you’re counting down to a deadline, you always could use more time. The right thing to do, we all know, is to get it done now, right away, with time to spare. The only problem is that might lead us to make bad choices and irrational decisions.

We previously wrote about how older jurors might be a better fit for some cases. They generally have a wealth of knowledge and experience to draw from. It might take them a little longer to come to an answer, but that’s because of the large amount of information they have to process, not necessarily because they are becoming feeble minded. Maybe, if you can convince them, they can sway the other members of the jury for you. That, however, may not be the only reason to select an elderly juror.
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Posted in: Trials
Tagged: Juries
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Box.Outside.book.small - Copy.jpgTrial lawyers are problem solvers. That is what they have to do and what their clients expect them to do. The biggest problem they face is how to persuade a jury. After all, the last time a trial went completely as planned was probably the first time one ever did.

Trial attorneys often rely on experts, and expertise, to win their case. The idea is that the average juror will recognize that the experts, whether lawyers or expert witnesses, know best and will follow along. The best way to solve a problem, though, just might be to think outside the box, which is something experts, including trial attorneys, do not always do best.

New research shows that finding creative solutions, from unexpected places, often leads to the best results, and that average people often can solve even complex, highly technical, problems better than experts and computers alike. Though the research has to do with molecular science, it sheds light on how you can win a trial.

Researchers, from Carnegie Mellon and Stanford University, have set out to better understand how RNA, which is one of the three macromolecules essential for human life, is designed. The hope is that this can lead to better ways to treat, or even cure, diseases or, believe it or not, even lead to building better computers, with RNA.

Normally the researchers would have done what they do best: conduct the research themselves. They would have used their knowledge, training, and experience to try to come up with the best designs. This time, however, they did something different: they invited people who had absolutely no special training, to design RNA. Surprisingly, or maybe not, those average people came up with far better designs than the experts.
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thread-spool-1378256-m.jpgLying and Insurance Fraud go together. Cheat, steal, get caught, admit it; which one doesn’t belong? Better yet, be honest when you cheat. No, that doesn’t work either. Most every time someone tries to get away with something he shouldn’t, chances are he’s going to lie about it somewhere along the line. Investigators need to know how to ask questions, elicit answers, and get at the truth; so, chances are, they should all know a good lie when they hear one.

Detecting, and exposing, lies also is a big part of trial work. A trial attorney wants to make certain that the jury at least will doubt, if not see right through, slanted testimony; will see the inconsistencies, understand the contradictions, and punish the lies; or even scoff at the willful forgetfulness. Cross-examination, impeachment in general, and artful closing arguments all can accomplish this. Knowing a lie is essential to ensuring that everyone else does, too.

Everyone thinks they know a lie when they hear one. They believe they can tell the difference between a deliberate falsehood and an innocent mistake. That’s probably one reason lying is the focus of so much comedy. Think of the Jon Lovitz character from Saturday Night Live, with his blatant lies getting cackles from the studio audience. Then compare him to poor little Emily Litella who seemed to spend most of her time trapped in an endless game of telephone, never getting things quite right, wondering what all the commotion was about violins on TV. Or think about how funny it was to see Jim Carrey playing a slick attorney in the movie Liar Liar, who, for 24 hours straight, had to tell the truth and nothing but the truth. Some lawyers, I mean every lawyer, thought that was funny; yeah, that’s the ticket.
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tranquility-1-998521-m.jpgWe’ve spent a decent amount of time discussing how lawyers try to persuade people. That, after all, really is their job: to convince a decision maker, be it a judge, jury, or appellate court, that their client is right and should have won, should live to fight another day, or at least should not have lost quite as badly as he did.

Does the way a lawyer persuades depend on the means by which he has to do it? Does it really make a difference if the lawyer is standing up before a jury or a judge at trial; laying out the case for why his client is entitled to judgement as a matter of law on a summary judgement motion; or is writing a brief on appeal? Does the art of persuasion depend on the means of persuasion, or is it more universal than that?

It’s not always easy to figure out why one side wins and one side loses. A lawyer can only play the hand he’s dealt, but he can do a lot to get everything out of the cards that he’s been given. Whether it’s Victor Sifuentes, Alicia Florrick, Joyce Davenport, or Jack McCoy, no two attorneys approach the same case the same way, and winning is never as easy as it looks on TV. When real life attorneys try to persuade, though, the successful ones always seem to keep the basics in mind.
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Posted in: Business Litigation and Trials
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