Preparing Witnesses, Exhibits and Final Filings

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 507-524

WITNESSES, EXHIBITS,

FINAL FILINGS

CHAPTER 16

PREPARING

WITNESSES, EXHIBITS AND

FINAL FILINGS

§16:01 New York Trial Notebook 16-2

WITNESSES, EXHIBITS,

FINAL FILINGS

I. EVIDENCE NEEDED BY EACH

PARTY

§16:01 Plaintiff

Unless defendant has conceded certain points

at the outset, a plaintiff typically must present

evidence in three areas to prevail:

• Liability;

• Causation; and

• Damages.

These areas may be fairly discrete and easily

separable, or they may overlap considerably. For

example, in commercial cases, liability and causation

may be incorporated in the same issue. For personal

injury cases, liability and causation may be separate

and distinct; in fact, question one on the verdict sheet

may be “was defendant negligent,” and question two

may be “was defendant’s negligence a proximate

cause of plaintiff’s injury?” In a medical malpractice

case, liability, causation and the extent of the injury,

including residual disability, may be inextricably

intertwined. In an automobile crashworthiness case,

the culpable conduct (alleged defective design of

a motor vehicle), causation (that the design led to

an injury greater than would otherwise have been

sustained) and damages (the extent of the injury

in excess of what would otherwise have been

sustained) may be closely bound, although other

damage issues, such as economic damages, may be

separable.

Witnesses and tangible evidence must be

selected to address each area, and to the extent the

areas overlap, the evidence does “double” or even

“triple duty.” However, unless the defendant has

admitted facts conclusively establishing liability,

causation, or the amount of damages, plaintiff must

present evidence in each area sufficient to at least

make a prima facie showing. The plaintiff must

meticulously prepare each element of his or her

case so that the jury appreciates the natural flow

from liability to causation to injury to award.

§16:02 Defendant

In contrast to plaintiffs, defendants need not

present evidence. Although defendant’s natural

inclination may be to dispute every element of

plaintiff’s evidence, that strategy is not always

appropriate.

There may be no purpose in disputing injury

causation in a traffic accident case when the liability

dispute is the color of the traffic light. The defendant

may concede the extent of an injury when it is

serious, such as quadriplegia, amputation, or death,

but not necessarily the damage award value of the

injury. In commercial litigation, the amount of

damages may be fixed if liability exists.

In some cases, the defendant may concede

violation of a statute or regulation, but deny

causation. In still other cases, the defendant may

acknowledge liability and causation, and the entire

trial may concern only the extent of damages, if any.

It is appropriate for a defendant to put a plaintiff

to his or her proof in all three areas, but if the

plaintiff’s case in any area is overwhelming, the

defendant is best advised to concentrate resources

on defending those areas in which plaintiff’s case

is weakest. The jury will give greater credence to a

defendant who focuses on the specific areas where

the “battle lines” are drawn, and does not challenge

every element of plaintiff’s case.

Of course a defendant must present evidence

with respect to each affirmative defense sufficient

to make a prima facie showing that the defenses

have merit, or risk those defenses being stricken as

a matter of law.

IN PRACTICE:

Identification of witnesses is almost always

demanded in Demands for Bills of Particulars,

Interrogatories, or independent Demands for

Identification of Witnesses. Also, witnesses

may be required to be identified in a pre-trial

order. Failure to identify witnesses frequently

results in their being precluded from testifying.

Consequently, be sure to review your discovery

responses, and update them if necessary to

include newly discovered witnesses. Without

a good excuse for delay in identifying your

witnesses, the Court may in its discretion

order them precluded. [See, e.g., Shmueli v.

Corcoran Group, 29 AD3d 309, 816 NYS2d

410 (1st Dept 2006), Paek v. City of New York,

28 AD3d 207, 812 NYS2d 83 (1st Dept 2006),

Kauffman v. Triborough Bridge and Tunnel

Authority, 295 AD2d 171, 743 NYS2d 109 (1st

Dept 2002), Frenk v. Frederick, 38 AD3d 593,

830 NYS2d 672 (2d Dept 2007) (witnesses

precluded because addresses not provided).]