Charles Mailloux obtained a defense verdict on the issue of damages on August 13, 2019 in Queens County Civil Court before Judge Lourdes Ventura in the case of Tylisa Gaffney v. Abigail Pagan-Velazquez (Index No. 350230/19).

Frank Scahill obtained a defense verdict on damages in Kings County on August 8, 2019 before Judge Pamela Fisher in Steven Arcuik v. Daun Cab Corp. (Index No 522513/16).

Eric Flores obtained a defense verdict in New York County on August 2, 2019 before Judge Verna Saunders in Rodney Carter v. Gualber Morales Cruz (Index Number 153013/2017).

Tim Jones obtained a defense verdict on damages on August 1, 2019 in Monique Burrell and Joseph McCants v. Carol Patterson, (Index No: 304993/13) before Judge Ben Barbato in Bronx County.

Brian Murray obtained a defense verdict on July 15, 2019 on the issue of liability in Kings County in Victor Reyes-Gonzalez, Anselmo Hernandez and Armando Zacapa v. Julio Inga-Bermeo before Judge Loren Baily-Schiffman. (Index No. 8386/14).

The case of Bermejo v. New York City Health & Hosps. Corp., 2015 NY Slip Op 08374 (N.Y. App. Div. Nov. 18, 2015) generated a lot of press from the onset.

The case was heard in April of 2013 before Judge Hart in Queens County and resulted in a mistrial. Prior to the trial on the issue of damages in this personal injury action, the plaintiff's trial attorney surreptitiously videotaped an Independent Medical Examination conducted by Dr. Michael Katz, retained by the defendant Ibex Construction, LL. The attorney failed to disclose the existence of that recording to defense counsel, and then revealed its existence for the first time at trial, during redirect examination of his own paralegal, who took the witness stand to testify as to time elapsed during Dr. Katz's examination of the plaintiff. This resulted in the declaration of a mistrial, and Dr. Katz subsequently declared that he was not willing to testify at the new trial.

This was the case where Judge Hart accused Dr. Katz of lying, which the Appellate Division stated, "We further conclude that the declaration of a mistrial in this case was attributable to the conduct of the plaintiff's trial attorney. Moreover, we find that the orthopedist was unwilling to testify voluntarily at the new trial because of that conduct and because the Supreme Court repeatedly, without any basis in fact, accused the orthopedist of lying during his cross-examination. The court also repeatedly threatened to recommend that the District Attorney's office prosecute the orthopedist for perjury."

In a stunning rebuke of the Trial Court, Judge Roman noted, "At this point, we dispel the premise that underlies the plaintiff's arguments on these appeals, and the actions taken by the Supreme Court after declaring the mistrial, namely, the notion that Dr. Katz lied. The record does not reflect that Dr. Katz committed perjury.

Dr. Katz was asked how long the second IME took, and his answer was that he did not know. There is no evidence in this record that, at the time Dr. Katz gave that testimony, he actually did know how long the second IME took. Thus, that answer (or series of answers) has not been shown to be untruthful.

When Dr. Katz was then asked, by the court, "what [his] custom and practice would be" as to the length of an examination of this type, as noted, Dr. Katz's answer was that he thought that "in the range of between 10 and 20 minutes would be appropriate." There is no support in this record for the proposition that this answer was false. Moreover, even aside from the fact that the Supreme Court did not actually ask Dr. Katz about the length of the particular IME in question, it was improper to force him to specify an exact duration when his answer repeatedly was "I don't know." (see e.g. People v Samuels, 284 NY 410, 417). Accordingly, the record does not reflect a lie that would support a declaration of perjury by the Supreme Court."

Judge Roman described the "avalanche of errors that occurred in this case" and ordered plaintiff's counsel to pay "the costs they (the defendants) incurred in the first trial, and the costs they incurred in making and litigating the motions at issue on these appeals and in pursuing these appeals."

This case illustrates clearly that not only does the credibility of each side’s story during trial come into question, but the credibility of third party witnesses and presumed subject matter experts must be fully considered,  Failure to do so may drastically impact the outcome of a case.

In jury selection I often discuss minimum expectations with the prospective jurors. I ask them if they know what a witness who takes the stand at trial needs to do before they begin to speak. The jury will chime in they need to take an oath.

In conversation I ask them if they know what that oath entails and they respond the witness needs to tell "the truth the whole truth and nothing but the truth".  I then ask, “Does anyone believe that is always the case?” and the response is always a resounding "NO".

That exchange serves several purposes. Primarily it plants the seed of doubt in the jury that perhaps the witnesses called by the plaintiff will not tell "the truth the whole truth and nothing but the truth".

This exchange also allows for a theme to be discussed with the jury in summations. How the minimum expectations of truthfulness, allowing a plaintiff to earn the trust and be worthy of a verdict in their favor, have not been met.

Consider the cross examination by Tim Jones of our office of the plaintiff in Ina Allick-Diallo, Maria Davis and Rahim Davis v. Wokary Dit Boubaca Ouonogo and Mohamed Diakite, (Index no: 300445/15) before Judge Miles in June of 2018. Here, the plaintiff, Maria Davis, was confronted with a prior lawsuit for back pain in 2002, which was not revealed in her direct testimony. Her explanation was that she hurt her back, but she was not injured. Tim Jones destroyed her credibility in front of the jury with the following exchange:

1. And you told the jury before that you never were injured, the same parts of your body prior to the accident we are talking about today, which was July of 2014, you remember that testimony?
2. Yes.

1. Take a look at that document marked as Defendant's A for identification. Does that refresh your recollection as to whether or not you injured your back in June of 2002?
2. Not that I injured my back, I hurt my back, but not injured it.

1. Hurt your back in the accident of 2002?
2. Yes.

1. So when you told the jury just moments ago that you never had any injuries to your back, that you injured your back only in this accident, that wasn't true, correct?
2. That is true, I didn't injure my back, I hurt my back.

1. Did you bring a lawsuit for the accident from June of 2002?
2. I believe so.

1. So, you're telling us for the first time on cross examination you had a back injury and a lawsuit from an auto accident in 2002, correct?
2. No, but my back was hurting in 2002. It was not injured.

1. Did you answer untruthfully on questions from your attorney, because you thought the jury would give you less money?
2. So you brought a lawsuit but you're telling us you weren't injured; is that right?
3. Right, my back was in pain.

1. Your back was in pain?
2. My back was hurt, but it was not injured.

1. Your back pain is the reason you brought the lawsuit, isn't it?
2. Yes.

At this point the witness can say anything she wants, as her credibility is shattered.

Her attempt to parse words between being “injured” and “in pain” has fallen flat. This critical exchange on cross examination was enough to frame the closing arguments in the case.

Now, when the subject of "the truth the whole truth and nothing but the truth" is discussed in closing arguments, the jury will recall your discussion in Voir Dire and how you brought the concept to life on cross examination.

Read the transcripts here and here.

Jury selection is often treated as a perfunctory obligation by both plaintiffs and defendants, a boring and tedious task to get through before you have the opportunity to present your case.

Jury selection has often been called the most important part of the case, so why is it that most lawyers trying cases want to get through the process as soon as possible? I cannot tell you how many times a plaintiff's attorney has said to me, "Let's get through this before lunch, and we can get passed for the day and start the trial tomorrow".

Prior to 1996, there were no limits on time for attorneys selecting jurors in Civil Cases and the selection process often went several days. What is a reasonable approach defense counsel can take and what are some practical tips for jury selection?

The rule for plaintiff's counsel has always been, be as thorough as possible and do not leave your adversary anything to say. As defense counsel, I know, after hearing the plaintiff's presentation, most jurors are leaning in favor of the plaintiff's case. In the Bronx, Queens, Brooklyn, and Manhattan, the panel may be hostile to you before you have a chance to say anything. They now know it was your client who caused the poor plaintiff to be injured, and after hearing the plaintiff's presentation, they are most likely predisposed to giving the plaintiff an award.

Engage the Jurors

How do you turn this tide to give yourself a fighting chance? I have always found that engaging the jurors by asking them open-ended questions gives the panel the opportunity to state their views and perhaps dispel some misconceptions your adversary has floated out in the room. After introducing myself and advising who I represent, I always ask to start, "Is this everyone's first day ?" I ask this for two reasons; one, it breaks the ice, and two; I want to know how many days they have been waiting, or if they were rejected from another panel. I tell them I know this is the last thing they wanted to do this week, thank them for their service and muster a watered-down patriotic speech about the importance of their service.

Explain the Heart of the Civil Lawsuit

The next topic I bring up is the heart of a civil lawsuit. I ask, "Does everyone believe it is reasonable that someone who is injured through the fault of another person, can sue that person and come to court and ask a jury like yourselves to award money damages as compensation for the harms and losses they suffered?" Everyone usually nods and says yes (except in Suffolk and Westchester). Then I ask, "What about the opposite side of that story? If you are wrongly accused of causing someone harm, do you have the right to come to court and present evidence to a jury to defend yourself? " At this point the panel usually answers loudly, "Yes of course". I make the analogy to an innocent man or woman accused of a crime. Everyone agrees a basic principle of justice will allow for the accused to present evidence to exonerate themselves at trial. I tell the jury, "Well that's why I am here", and I then discuss the relevant aspects of the case.

The Process

I then say a little about the process, how the trial will proceed, and I talk about what the foreperson does when they reach a verdict. I explain how dramatic that is for everyone in the courtroom. That usually gets some response and attention. I usually comment that everyone has seen Law & Order a thousand times, as it's on 24 hours a day. I tell them that the difference with real life is that there is a lot of waiting around. I then ask, "Does everyone believe that when a witness raises his or her hand and swears or affirms, to tell the truth, the whole truth & nothing but the truth, that they actually do that?" Almost everyone says a loud "No". I joke that I would be out of a job if everyone automatically told the truth and then I tell them about the importance of cross-examination. Now at least the jurors are willing to hear my side of the story.

On Damages

There are two questions I like to ask on damages. The first is whether anyone in the room has ever had a call or some communication about a debt. Almost everyone has had a collection call of some sort and many hands always go up. I then ask them how annoying that was and how that made them feel. I then inquire, "What if instead of getting that annoying call, you were sued and brought to court and asked to pay damages for something you did not owe or asked to pay more than what you owed, would you want to defend yourself as best you could?" The other question is whether they were ever at a shop or store and paid the cashier with a $20 dollar bill and only received change for a $10 bill. What the jurors say about that tells a lot about themselves. Would they insist the cashier gives them the right change? Would they call over the manager even if there was a line behind them building up at the cashier? How do they react when the cashier gives them an attitude?

Everyone has their own style for jury selection. As a general rule, I suggest avoiding jokes, stories from other cases, and banter with your adversary. Be as professional and courteous as you can. This is the first time your jury will meet you. Don't waste the chance to start off on the right course by rushing through the process.

Read the New York Civil Voir Dire Law and Rules here.