How Many Experts Are Too Many? (NJ)

In most states, the trial judge has substantial discretion to control the presentation of evidence.  Some judges are notoriously strict task masters, pushing the litigants to complete their presentations as quickly as possible so that the jury may begin the difficult job of deciding who wins.

Just how far may a trial judge go in her quest to “keep things moving”?  Can the court restrict the number of witnesses, particularly experts, who will testify about a common issue?

In McLean v. Liberty Health System, the New Jersey Appellate Division upended what had been the prevailing view that trial judges could restrict the parties to one expert per issue.   Young Kevin McClean, aged 16, died after an infection went undetected at a local hospital.  The administratrix of his estate claimed that the hospital’s emergency room physician failed to meet the standard of care required under the circumstances. The case was expected to be long and complicated so the trial judge restricted each side to one expert per specialty, thus limiting the plaintiff to one expert on the issue of the standard of care expected of an emergency room doctor.

During opening statements, the attorney for the defendant doctor went on the offensive, advising the jury that “we will prove that no emergency room physician with the possible exception of [plaintiff’s expert] ….would ever have thought for a scintilla of a moment that this is a patient with an infection. None.”  The problem was that the plaintiff had already disclosed the reports of two expert witnesses who would both say that the defendant doctor botched the care provided the decedent by failing to identify the infection.  According to the Appellate Division, the defense attorney’s statement was false and the defense lawyer knew it.  Not surprisingly, the jury found in favor of the defense.

Employing sweeping language, the Appellate Division held that “Nothing in our rules of evidence, or other laws or rules, gives the trial court authority to balance the number of witnesses presented by each side at trial.”  The court further cautioned that a trial court may not bar the testimony of witnesses “merely on the ground that it duplicates another witness’s testimony.”

There are many lessons to be learned from McClean.  There seems to be no doubt that a party cannot be precluded from calling multiple witnesses, either fact or expert, on identical issues that are crucial to the case.  Judicial efficiency may be an important goal but it is trumped by a party’s right to put all relevant evidence, even if duplicative, before the jury on crucial issues.

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Witness Fee Jeopardizes Defense Verdict (N.Y.)

The stresses of trial are many for those attorneys who try cases. One particular demon that keeps trial lawyers up at night is the worry that key witnesses, particularly non-party fact witnesses, will refuse to cooperate or honor subpoenas requiring their testimony at trial. Some witnesses claim that they are too busy, too important or can’t afford to lose the time from work to appear at trial.

What may a trial lawyers ethically do to secure important trial testimony from a non-party fact witness? Just how much may the trial attorney “reimburse” a fact witness for the claimed cost and expense of appearing at trial? Can such fees become so unreasonable that a witness’s testimony may be precluded or stricken as irrevocably tainted by undue influence or bias?

The New York Court of Appeals decided this thorny issue in Caldwell v. Cablevision Systems Corporation, taking a balanced approach to the problem. In Caldwell, plaintiff claimed to have tripped and fallen while walking her dog due to the negligent construction work performed in the area by the defendant. In response, the defense lawyer subpoenaed the emergency room physician who spoke with plaintiff when she first sought medical treatment and documented in his note that plaintiff “tripped over a dog while walking last night in rain.” The problem arose when it turned out that the doctor was paid $10,000 for his short appearance in the courtroom with little discussion about how the attorney or the witness arrived at that significant sum.

The trial court gave plaintiff’s attorney substantial leeway in exploring the size of the payment during both cross examination and summation. Not surprisingly, the jury found the defendant negligent but that such negligence was not a proximate cause of plaintiff’s accident. On appeal, plaintiff sought a bright line ruling that the payment of a $10,000 witness fee rendered the doctor’s testimony inadmissible as a matter of law.

The Court of Appeals was troubled by the size of the witness fee and its potential to influence the doctor’s fact testimony. It noted that the statutory, minimum fee for subpoenaed witnesses was a $15 appearance fee and .23 per mile for travel expenses. However, the court rules and relevant case did not forbid witness fees in excess of the statutory minimum where they reimburse a witness for “actual expenses and reasonable compensation for lost time.”

In sum, the court permitted the challenged testimony to stand with the caveat that in future cases the trial judge should specifically charge the jury that it may consider whether a witness fee is “disproportionately more than what was reasonable for the loss of the witness’s time from work or business,” and, if so, whether the payment “had the effect of influencing the witness’s testimony.”

Justice may be blind but it is rarely cheap.

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Closing Statements: How Far Is Too Far?

Trial lawyers relish the challenge of addressing the jury during closing argument. After laying the groundwork with the introduction of documentary evidence and testimonial admissions, defense counsel finally gets the opportunity to “connect the dots” and persuade the jury of the righteousness of his defense.

Just how far can a defense attorney go before he jeopardizes an otherwise hard fought victory? Where is the line between fair comment and an improperly prejudicial remark?

In Chappotin v. City of New York & Con Ed, the defendant’s main defense was that the plaintiff’s accident did not occur as he alleged and that plaintiff was unworthy of belief. During his summation, defense counsel urged the jury to reject the plaintiff’s story, arguing that “this is a man who has played the system going on 15 years [because he was already on disability]….here’s someone who doesn’t have a concern about getting medical care. He doesn’t have a concern about working…” Even more pointedly, defense counsel warned that “money is a great motivator. Now, Lord knows it’s true, that he’s looking for my money. And I don’t want to give it.”

Procedurally, the plaintiff’s attorney objected to only 2 of the 15 comments that plaintiff claims were beyond the pale of proper advocacy. The trial judge upheld those objections and gave a curative instruction. After the jury rendered a defense verdict, the trial court set the verdict aside based on those comments and an appeal followed.

The First Department reinstated the verdict and found that the defense counsel came close to, but did not overstep, the fine line between acceptable “rhetorical comment” and improperly prejudicial argument. The court also noted that plaintiff’s attorney failed to object at trial to 13 of the 15 comments and thus failed to preserve those objections on appeal.

Trial counsel walks a fine line between winning a bitterly contested trial at all costs and ensuring that the resulting verdict will stand up on appeal. When trying cases, trial counsel must be bold, creative and sometimes uncomfortably direct and aggressive. The hard part is discerning when how far is too far, putting a favorable verdict in jeopardy on appeal.

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