New York Personal Injury Trials,
Introduction of Exhibits in Civil Cases
New York Law Journal, Tuesday, July 25, 2006
Ben B. Rubinowitz and Evan Torgan
A crucial, but often overlooked,
part of trial advocacy is knowledge of the rules that govern the
introduction of exhibits.
For an attorney with a firm grasp of evidentiary foundations,
an exhibit's introduction can be quite simple. As a general
rule, the potential exhibit must be relevant and authentic;
relevant to an issue in the proceeding; authentic in that the
exhibit is what it purports to be. In addition, the witness
through whom the exhibit is being offered must be competent,
that is, she must have
knowledge of the underlying facts relating to the exhibit.
Once the trial attorney becomes familiar with the proper
procedures for admitting exhibits admitted into evidence, the
rest is easy: Ask for the exhibit to be marked for
identification, show it to your adversary, ask the court's
permission to approach the witness, show the exhibit to the
witness, lay the foundation for the exhibit, offer it into
evidence and show it to the jury.
Introduction of Photographs
In a case involving an automobile accident, counsel will
certainly want to introduce photographs of the scene. To lay the
proper foundation, counsel will need someone familiar with the
accident scene to establish that the exhibit is a fair and
accurate representation of the scene as it existed on the day,
time and place at issue in the case.
Before even showing the photographs, however, counsel should
proceed with his direct examination, having the witness describe
the scene in detail, so in addition to laying a proper
foundation, when the jury members finally see the photograph,
they will be impressed with the witness' knowledge and
credibility. Ideally, you should have enlargements made of
photographs to assist the trier of fact in following the
testimony:
Q: Your honor, may I have this photograph marked as
plaintiff's exhibit one for
identification?
Q: May I approach the witness?
Q: I show you what has been marked as plaintiff's exhibit one
for identification, and I ask you, do you recognize this?
Q: What do you recognize it to be?
Q: Is this a fair and accurate representation of the scene of
the incident at the time of the incident?
Q: Your honor, I offer this in evidence.
If the trial attorney has more than one photograph of the
scene he would like to introduce, he should establish the
foundation for each of them, individually, and withhold the
offer until all of the foundations are completed. This will
prevent multiple voir dires after each offer, which will destroy
the flow of a good direct examination.
Offer for a Limited Purpose
Under certain circumstances the trial attorney will be forced
to offer photographs that are not perfectly accurate in
depicting the scene of an accident. These photographs still may
be admissible for 'a limited purpose.' For example, if the
photographs were taken during daylight, but the accident
happened when it was dark during the evening rush, the
photographs can still be admitted for the limited purpose of
showing the layout of the street:
Q: Do you recognize this?
Q: What do you recognize it to be?
Q: Aside from the lighting conditions and traffic conditions,
is that a fair and accurate representation of the layout of the
roadway at the time of the accident?
Photographs in snow and ice cases still can be admitted even
if the photographer failed to show up until after the spring
thaw:
Q: Do you recognize this photograph, Mr. Witness?
Q: How do you recognize it?
Q: Aside from the fact there is neither snow nor ice on the
ground, is that a fair and accurate depiction of the parking lot
on Jan. 21 at 4:00 in the afternoon?
Q: I offer that photograph in evidence, Your Honor, for the
limited purpose of showing the area where the accident happened
without regard to the specific weather conditions at the time.
The Court: Any objection counselor?
Defense Counsel: Not with the proviso that it is being
offered for the limited purpose of showing the general area of
the parking lot, Judge.
The Court: The photograph is in evidence.
Once photograph is in evidence, use it to your advantage.
Publish it to the jury. Have your witness demonstrate to the
jury where and how the accident
happened as well as where the specific defect was located.
Q: Your honor may I show plaintiff's exhibit 2 in evidence to
the jury?
Q: May I have the witness step down to show the jury where
specifically the accident happened?
Q: Mr. Witness, I show you what has been marked in evidence
as Plaintiff's 2. Using the photograph show us where you fell by
first pointing to the area in the (enlarged) photograph.
Q: Using this marker please put your initials over the area
where you fell.
Q: What if anything caused you to fall?
Q: Could you describe the condition that caused you to fall?
A: It was ice that had formed from an eight-foot mound of
melted snow that had been created by a snow plow.
Q: Please point to the area where that mound of snow existed
and then write 'snow' on the exhibit.
Q: Please point to the area where the ice existed and then
write 'ice' right on the exhibit.
Introduction: X-Rays, MRIs
Introducing diagnostic tests such as MRIs,
CT scans, EMG
studies and X-rays has become particularly easy thanks to the
Legislature. Pursuant to
Civil Practice
Law and Rules (CPLR) Rule 4532-a,
a party has two options for
proffering a pictorial medical exhibit at trial. The first
method is to show that the potential exhibit has been previously
received or examined by the adverse party and contains the
identifying information as is customarily inscribed by the
medical practitioner or medical facility. The alternative way to
achieve admissibility is through a 10-day notice procedure. Once
counsel serves a notice of intention to offer the diagnostic
test in evidence at least 10 days before trial, the specific
films are admissible. However, the notice of intention must be
accompanied by an affirmation of a physician identifying the
radiological study, attesting to the identifying information
inscribed on it, stating that the identifying information is
customarily provided at the specific facility, and that if
called as a witness at trial, that witness would so testify. If
all of these conditions are met, the study is admissible.
In any event, the foundation for admissibility can still be
laid to orient the jury and set up the foundation for the
expert's analysis:
Q: Did there come a time that you reviewed an MRI of the
plaintiff's lumbosacral spine?
Q: Your honor, may I have the following studies marked as
plaintiff's exhibit 3 for identification?
Q: Dr. Smith, do you recognize these studies?
Q: What do you recognize them to be?
A: The MRI studies of (the plaintiff).
Q: How do you know that?
A: It has the name of your client, the date that the study
was performed, the time of the study and the name of the medical
facility at which it was taken.
Of course, with an inexperienced witness, it would be
appropriate to lead the witness through the foundation by
mirroring the language of 4532-a:
Q: Dr. Smith, I show you what has been previously marked as
plaintiff's 3 for identification involving four sheets of
MRI
studies. Do you recognize these?
Q: Does it have certain inscriptions identifying who the
study is of?
Q: Does it have the name of (the plaintiff), the injured
party in this case?
Q: Does it have the date when the MRI was taken?
Q: Does it have other information inscribed thereon
customarily inscribed by a medical facility?
Q: What is that information?
Q: Your honor, I offer plaintiff's 3 in evidence.
As long as the studies had been previously exchanged with the
opposing party, the films are now admissible.
Offering the MRIs for evaluation by the expert are worthless
without properly publishing them to the jury, having the witness
explain the relevant anatomy and findings, and actually
demonstrating to the jury with proper enlargement of the films
where the specific pathology is found. Toward that end, it is
mandatory that the trial attorney have a means of showing the
jury enlarged versions of
the radiological studies. Putting it on a large screen through a
computer presentation is helpful for demonstrative purposes, but
not good enough to use throughout the trial. Counsel needs
something more permanent so that he can have the witness mark
and then use with other medical witnesses or more importantly,
for cross of opposing medical witnesses. Here is how to do it:
Q: Your honor we have enlargements of some of the cuts of the
MRIs already in evidence which, with your permission, I'd like
to show the witness. May I have these three enlargements marked
as plaintiff's exhibits 4, 5 and 6 for identification?
Q: May I approach the witness?
Q: Dr. Smith, I show you plaintiff's 4, 5 and 6 which have
just been marked for identification. Do you recognize these?
Q: What do you recognize them to be?
A: They are enlargements of the films taken of (the
plaintiff) that have already been marked into evidence.
Q: Are they fair and accurate enlargements and
representations of certain cuts of the films already in
evidence?
Q: Would these enlargements help us to understand and help
you to explain the anatomy and injuries involved with (the
plaintiff's) injuries, care and treatment?
Q: Your Honor, I offer exhibits 4, 5
and 6 into evidence.
Now have the witness demonstrate the pathology he found on
the studies.
A Physician's Office Records
The records of a treating physician are admissible with a
simple certification as a business record pursuant to
CPLR 3122-a
(certification of business records) coupled with the service of
a notice of intention, at least 30 days before the trial, giving
the adverse parties notice of your intention to offer these
records and specifying the place at which they may be inspected.
Even if counsel fails to avail himself of the simplified
procedure outlined in the CPLR, the trial attorney can always
have a qualified person from the medical office lay the
appropriate foundation. Here is an example:
Q: You are the office manager at Dr. Smith's office?
Q: Your Honor, may I have these marked as plaintiff's exhibit
5 for identification?
Q: May I approach the witness?
Q: I show you what has been marked as plaintiff's 5 for
identification and I ask you if you recognize these?
Q: Are they Dr. Smith's office records reflecting the care
and treatment of the plaintiff?
Q: Were they made in the regular course of Dr. Smith's
practice as a medical
office?
Q: Was it in the course of Dr. Smith's medical practice to
make those records?
Q: Was it made by someone with knowledge of the events
described therein (or the medical treatment)?
Q: Were these records made at or around the time of the
events described therein (or the medical treatment)?
Q: Your honor, I offer Dr. Smith's records in evidence.
Offering medical records in the absence of the physician
responsible for them can be used to great advantage. If the
record is a good one, the findings may go undisputed and the
doctor unchallenged with respect to credibility or competence.
Thus, the unchallenged doctor's findings may be incorporated
into hypothetical questions with the plaintiff's other experts,
or on cross-examination of the opposition expert.
The defense has the same advantage. For example, counsel
could subpoena certified records of a physician who treated the
plaintiff in a prior accident and use them as the basis for
hypothetical questions regarding the lack of causation of
injury
when questioning his 'independent medical expert.'
Q: The plaintiff told you he had never hurt his back before,
true?
Q: That was part of what you would call history, correct?
Q: And you would agree that history is an important element
of proper diagnosis, right?
Q: And in telling us that the
plaintiff's back injury was causally related to this accident
of May 2, 2003, you had to rely at least partially on the history,
correct?
Q: You took the plaintiff at his word that he had never
injured his back before, true?
Q: You relied on his honesty?
Q: If he had sustained a prior back injury and had a
history
of medical treatment for it, that could change your opinion,
true?
Q: Your Honor, I offer the certified office record of Dr.
Jones into evidence that came to court with the appropriate
affidavit pursuant to my subpoena duces tecum and notice of
intention.
The Court: It's in evidence as defense exhibit A.
Q: Take a look at the first page. Am I reading this
correctly? 'History: Patient states that in 1999 he herniated
three discs while shoveling snow in front of his house. He has
been to physical therapy for those injuries for the last three
weeks with no improvement.'
Q: Mr. (Plaintiff) didn't tell you about that, did he?
Q: That's something you would want to know as his
treating
physician for a back injury, right?
Q: Obviously, that certified medical record might change your
opinion on causation, correct doctor?
Conclusion
The proper handling and introduction of exhibits can earn you
the respect of the judge and jury. Proper utilization of
photographs, MRIs and office records can be very persuasive.
Once they are in evidence, maximize their use. Proper testimony
can be compelling, but a picture can be worth a million words.
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.
