New York Personal Injury Trials,
Common Mistakes and Simple Remedies
New York Law Journal, Thursday, September 21, 2006
Ben B. Rubinowitz and Evan Torgan
When conducting a direct or cross examination, everything the trial lawyer does should be
done with an eye toward summation. Before moving to another
subject area, the trial attorney should continually ask herself
whether she has elicited enough information from that particular
witness to make a cogent and compelling argument on summation.
If sufficient information has been brought out in a clear and
convincing manner, then the attorney can move forward knowing
that the argument on summation will be a powerful one. Creating
the argument for summation
during the trial, however, should not be based on guess work or
faulty assumptions about what the witness really said. The trial
lawyer must know, and the record must reflect, not only what the
witness said but what the answer truly means.
Too often trial lawyers fall into traps that they themselves
have set. These traps or mistakes serve to undermine what
otherwise would be a powerful witness examination. These
mistakes take many forms.
Grammatical Errors
Consider first cross examination. Both experienced trial
lawyers, and the inexperienced lawyers trying to copy them,
often attach a familiar but dangerous phrase to the end of their
questions. The phrase 'did you not' can be head in almost every
trial courtroom in every state, city, and county. While that
phrase might seem a powerful way to end a question, it is
fraught with danger. Closely aligned with that phrase are
phrases such as 'Were you not' 'Have you not' and 'Are you not.'
Each of these phrases tends to confuse rather than clarify an
issue.
Imagine, for example, the scenario in which the only witness
to an accident in which a child was horrifically injured when
struck by a car, was asked on cross examination about the color
of the traffic light.
Q. At the time the child was
struck the light was red, was it not?
A. Yes.
Here, the trial attorney, satisfied with that answer, moves
forward with confidence that she now has sufficient ammunition
to make a powerful closing argument. Indeed, the argument is
made, the court instructs the jury and while the jury is
deliberating it asks for a read back on the one question and
answer. What seemed on first blush to be a clear and direct
answer to a straight-forward question turns out to be about as
clear as mud. Was the witness answering that the light was red
or that the light was not red? And if it was red, for whom was
it red: the child or the driver? There is no clear answer. By
using the negative phrase 'was it not' in her question, the
lawyer has compromised the clarity of her position.
Removing confusion during witness examination should be a
major goal of the trial lawyer. Instead of asking that cross
examination question by using a negative phrase at the end of
her question, the attorney should strive to create clarity.
Substitute the following question for the one above and there is
no guess work about the answer:
Q: At the time the child was struck the driver had a red
light, correct?
A: Yes.
Words such as 'correct' 'right' or 'true' at the end of a
question serve to solidify the answer.
The same confusing phrase is
often used by trial lawyers at the beginning of a question.
For example:
Q: Did you not see the girl cross the street?
A: Yes.
Needless to say, the same confusion results whether the
phrase is put at the beginning or end of the question. A better
form, with less confusion might be:
Q; You saw the girl cross the street, true? or
Q: It is true that you saw the girl cross the street, right?
Conclusory Errors
Separate and apart from the use of a negative phrase built
into a question is the problem of asking a question that does
not fulfill its intended purpose. Too often lawyers assume a
question has been fully answered when in fact a follow up
question becomes necessary. Nowhere is this better illustrated
than by the use of the 'do you know' question. Consider the
following questions asked on direct examination:
Q: Do you know if the light was red?
A: Yes.
Q: What happened next?
A: The girl crossed the
street.
If studied carefully, the only response received was that the
witness knows whether or not the light was red; however, the
jury never found out what the color of the light was. Obviously,
the 'Do you know' question demands a follow up question such as:
Q: What color was the light?
The better approach is to limit the use of the 'Do you know'
question to situations where it is absolutely mandatory such as
those circumstances where it is necessary to lay a foundation
for the next set of questions. It is far better to simply ask
the question directly such as 'what color was the light?' If the
witness does not know something the witness can state that in
his answer.
Non-Verbal Responses
While it is a given that most of us speak with our hands,
facial expressions, gestures and nods, in addition to our voice,
the trial lawyer must be acutely aware of the havoc a non-verbal
response can wreak. The trial lawyer must be constantly on the
lookout for that non-verbal response to protect the record.
Imagine, for example, the following questions being asked and
the following answer given;
Q: What did the girl do before
she crossed the street?
A: She went like this and then she went like that.
Q: Then what did she do?
While the jury might have seen the hand motions, the record
reflects nothing. Not only is this a problem for use later on in
the trial, but in the event of a read-back during jury
deliberations or the creation of a record on appeal, the cold
record offers nothing which clarifies or explains the witness'
answer. This problem, however, is one that can be easily cured.
The trial attorney, immediately after the non-verbal response is
given, must request that the trial record reflect what those
movements were:
Your Honor, with the court's permission, may the record
reflect that the witness first turned his head to the right and
then turned his head to the left.'
Ambiguous/Equivocal Words
Even when a question is carefully crafted and put to the
witness in a straight-forward manner, the answer given by the
witness may be less than clear. The trial attorney must
recognize the equivocal nature of the answer and seek immediate
clarification. A simple illustration makes the point:
Q: Describe the girl.
A: She was young.
or
Q: Describe the speed of the car.
A: It was fast.
Although the answers given by the witness seem to answer the
question, there is still a good deal of ambiguity in each
answer. The best approach is to seek clarification immediately.
In the first example, the follow-up should be:
Q: What do you mean by 'young?' or
Q: Tell us how old she was.
In the second example the follow-up should be:
Q: what do you mean by fast? or, even better
Q: When you say 'fast' tell us what you mean in terms of
miles per hour.
Even where there is no ambiguity that jumps out at you, the
trial attorney can enhance the prior answer by seeking
clarification:
Q: After she was struck what did you see?
A: She landed about 30 feet from the point of impact.
Here the follow-up should be:
Q: Tell us what you mean when you say she 'landed'? or
Q: Describe the manner in which she landed?
Marking Up a Photograph
While it is a given that most
trial lawyers use photographic enlargements or 'blow ups' to
clarify the testimony of the witness and solidify their argument
on summation, many attorneys fail to have the exhibit properly
marked up by the witness. Often times, attorneys ask the witness
to place a 'mark' on the exhibit to reflect important locations
such as where the impact took place or where the parties were
just prior to or after the impact.
A request that the witness 'mark' the exhibit in this manner
is rife with problems. First, it allows the witness to create
any 'mark' he or she chooses and, second, it does not
necessarily allow for an appropriate notation to be made that
will continue to speak to the jury after the answer is given. On
the other hand, markings which have some easily understood
meaning will continue to provide information to the jury when
you refer to them in summation, and more importantly, as the
jury studies them during deliberations.
Suppose for example, the attorney asks the witness to 'mark'
the exhibit where he was standing just prior to the impact. The
witness complies and places an 'X' on the exhibit. The attorney
then asks the witness to place a mark where the impact occurred.
Again, the witness complies and places another 'X' on the
exhibit. Clearly, the effect of placing two 'X's' on the exhibit
does not allow for clarification and, indeed, serves only to
confuse.
The better approach is to carefully mark the exhibit by
selecting appropriate
notations that will speak to the jurors during summation.
Instead of allowing the witness to place a 'mark' on the
exhibit, give the witness specific direction by saying' 'put
your initials on the exhibit in the spot where you were standing
just prior to impact' or 'write the little girl's name on the
exhibit where she was standing before she started to cross the
street.' Use the 'X' to reflect one and only one event: the
actual point of impact.
Further, it is crucial that before requesting that a
photograph be marked up by a witness, the attorney must make an
initial determination that the markings on the photograph will
indeed help her case. To that end, before requesting that the
witness actually write on the exhibit, it is useful to ask the
witness to stand next to the enlarged photograph and simply
identify a specific location with his finger.
If the witness points out the area which he described in his
testimony, you can feel free to have him mark the photograph,
secure in the knowledge that the marking will enhance your case.
On the other hand, if the witness misidentifies a specific area,
you will have the opportunity to re-orient the witness to the
photograph and/or omit having the photograph marked altogether.
Without taking this precaution, you run the risk of permanently
soiling your exhibit with inaccurate information.
Conclusion
With all of the intricacies of
modern trial work, it may be easy to overlook the simple truths
of trial advocacy. Nothing could be more frustrating to a trial
lawyer than to seemingly score points examining a witness, only
to find that the record fails to capture the essence of those
winning points. By always focusing on these fundamentals, the
skilled advocate can avoid learning such an unpleasant lesson
the hard way.
Ben B.
Rubinowitz a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
Richard Steigman, a
partner at Gair Gair Conason, assisted in the preparation of
this article.
9/21/2006 NYLJ 3, (col. 1)
