Trial Tips: "Jesus Christ. Give Me a Straight Answer."

May 17, 2016

By: Frank Scahill

I imagine every trial lawyer wanted to say that to an expert witness on cross examination at some stage in every trial. What happens when the Judge says that to your expert witness in front of a jury? This was our experience last month in Kings County before Judge Francois Rivera in SETH PARISER v. AG MEDALLION MANAGEMENT CORP. et. al. (Index No.: 1816/12).

In the course of the direct examination of the defendant's Biomechanical Expert, Dr. Robert Fijan, the Court interrupted the questioning to inquire whether the witness agreed that the plaintiff, who claimed bilateral SLAP tears of the labrum, did, in fact, have the condition complained about.

THE COURT: Let's keep it simple. Do you have an opinion on whether or not the plaintiff has SLAP tears on both shoulders?

THE WITNESS: From what I've reviewed he had labrum tears. I'm not sure that it was a SLAP tear or not on the left shoulder, but it's, at least, a similar type of tear of the labrum.

THE COURT: I have to take your answer and filter it and figure out if it's a yes or no, and I hate doing that. So let's break it up. Do you believe plaintiff has a SLAP tear on any shoulder?

THE WITNESS: That he ultimately had one?

THE COURT: I didn't use the word ultimately. Jesus Christ. Give me a straight answer.
Okay, before you gave your report did you have an opinion that the plaintiff had a SLAP tear on any shoulder?

THE WITNESS: Can I ask a question?

THE COURT: No.

THE WITNESS: You're not talking about related to the accident, you're just saying did he have one, so yes.

THE COURT: This is not a trick. What's so hard about my question?

THE WITNESS: I was just trying to clarify that.

THE COURT: If you stop trying to clarify and just answer direct questions you won't be here for three or four days. So, first, does plaintiff have a SLAP tear on either shoulder?

THE WITNESS: I believe so.

THE COURT: Yes? No? I don't know?

THE WITNESS: Yes.

THE COURT: Which shoulder do you have no disagreement he has a SLAP tear on?

THE WITNESS: He had one on the right shoulder.

THE COURT: Okay. Do you believe that he had a SLAP tear on the left shoulder?

THE WITNESS: I'm not sure.

THE COURT: All right. So then you can't give an opinion on what his injury is on the left shoulder.

THE WITNESS: I didn't say that.

THE COURT: Did he have an injury of the left shoulder?

THE WITNESS: Yes.

THE COURT: -- that you have no confusion about?

THE WITNESS: Sure.

THE COURT: What injury did he have?

THE WITNESS: He had a tear of the labrum of the left shoulder.

The previous day, the Court allowed a voir dire on the qualifications of this witness and also asked the following:

THE COURT: I'm interested in perhaps if he's taken orthopedics.

Q Have you taken any orthopedic courses, Doctor?

A Okay, courses, or have I --

THE COURT: Courses, that's a question. Wasn't the word "course" -- did I hear the word "course"?

MS. SCANLAN: Yes, Your Honor.

THE COURT: That's the question.

A Have not taken orthopedic courses?

Q You are an engineer, correct?

A I'm a mechanical engineer and a biomechanical engineer, right.

MS. SCANLAN: Your Honor, at this time I renew my application before we began his testimony. Shall I state it?

THE COURT: No. I'm just thinking. No classes in anatomy, no classes in medicine, no classes in orthopedic surgery, no classes in epidemiology, no classes in anatomy. Any classes in neurology?

THE WITNESS: No classes in neurology, no, I've -- in these fields I've only done research.

THE COURT: Hematology?

THE WITNESS: No.

THE COURT: Know anything about chiropractic work?

THE WITNESS: I don't know what you mean, anything about it. Obviously, I know something about it.

THE COURT: Never studied it?

THE WITNESS: Correct.

THE COURT: Wow. What's your objection?

MS. SCANLAN: My objection, Your Honor, is he's not qualified to testify as to mechanics of an injury without those qualifications, and I renew my application I made earlier.

THE COURT: All right. Ruling of the court is you have to ask foundational questions that permits him to offer an opinion on biomechanical injury, and I haven't heard any yet so feel free to try. Please be seated.

Appellate Courts in the area of Criminal Law have repeatedly ruled on the role of a trial judge on numerous occasions. "The proper role of a Trial Justice is "neither that of automaton nor advocate" (People v. Yut Wai Tom, 53 N.Y.2d 44, 56, 439 N.Y.S.2d 896, 422 N.E.2d 556). A Justice is generally not precluded from taking an active role in the truth-seeking process (People v. Jamison, 47 N.Y.2d 882, 883, 419 N.Y.S.2d 472, 393 N.E.2d 467) and indeed, may take the initiative to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial (see, People v. Watts, 159 A.D.2d 740, 553 N.Y.S.2d 213; People v. Cooper, 96 A.D.2d 866, 465 N.Y.S.2d 755). However, this power is one that should be exercised sparingly (People v. Yut Wai Tom, 53 N.Y.2d 44, supra, at 57, 439 N.Y.S.2d 896, 422 N.E.2d 556), and must be properly circumscribed so as not to result in the court taking an adversarial position (People v. Cooper, supra; People v. Tucker, 89 A.D.2d 153, 455 N.Y.S.2d 1). While the court may pose appropriate questions (People v. Moulton, 43 N.Y.2d 944, 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243), it has been recognized that a Justice's examination of witnesses "carries with it so many risks of unfairness that it should be a rare instance when the court, rather than counsel, examines a witness" (People v. Yut Wai Tom, supra, at 57, 439 N.Y.S.2d 896, 422 N.E.2d 556). Most importantly, when choosing to pose questions, a Justice must not do so "in a manner from which a jury will gain the impression of [the] existence of an opinion on the part of the court as to the credibility of the testimony of any witness or the merits of any issue in the case" (People v. Moulton, 43 N.Y.2d 944, supra, at 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243). People v. Melendez, 227 A.D.2d 646, 647, 643 N.Y.S.2d 607, 607-09 (1996)"

What do you do as a trial lawyer in these circumstances? Obviously you need to protect the record, but that does not help you in front of the jury. When the Court asks a question in a certain manner or is frustrated with the response from your witness, the effect on the jury is palpable. Your witness, who you spent days preparing, can be shot down before he has a chance to give an opinion. My advice is to press on, lay the proper foundation and ask your questions as planned. As you can see from the attached transcript, Dr. Fijan was allowed to give his opinion and ultimate conclusion. How the jury felt about the comments and questioning from the Trial Court is unknown. In the end, it is for the Appellate Division to decide whether the inquiry was proper.

Read the transcript here and here.

Scahill Law Group P.C.
1065 Stewart Avenue, Suite 210
Bethpage, NY 11714

(516) 294-5200

(516) 873-6229

info@scahillpc.com

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Paralegal

Scahill Law Group is a prominent Insurance Defense firm on Long Island. We are seeking experienced and motivated paralegals and Legal assistants to join our team.

Essential Duties and Responsibilities:

Following is a summary of the essential functions of this job. Other duties may be performed, both major and minor, which are not mentioned below. Specific activities may change from time to time.

Provide efficient administrative support.
Assist attorneys in handling cases from inception to the resolution of the matter.
Draft pleadings, discovery demands, responses, motions, various correspondence to clients and adversaries, etc.
Assist in trial preparation and various discovery.
Mail, fax, E-File, or arrange for delivery of legal correspondence to clients, witnesses, and court officials.
Assist attorneys in collecting information such as employment, medical, and other records.
Receive and place telephone calls.

Requirements

· 3 Plus years of experience as a Paralegal with working knowledge of insurance defense and/or Personal Injury Law

- Customer service skills
- Knowledge of Microsoft Office Suite

· Attention to detail, organized, time management

Ability to work in a fast-paced, high volume firm

Job Type: Full-time – Hybrid Remote Work

Benefits:

401(k)

Dental insurance

Health insurance

Paid time off

Trial Attorney-Insurance Defense

Scahill Law Group seeks a full-time Trial Attorney with a minimum of ten years of experience with an insurance defense background to take over a full pending caseload. The attorney would be responsible for representing civil defendants with primary venues being the five boroughs of New York City, Nassau, and Suffolk in Long Island and the Lower Hudson Valley. The position would require the Attorney to analyze lawsuits, prepare pleadings, conduct depositions and attend arbitrations, conferences, motions, and trials. The candidate must be organized, a team player, and able to handle a high volume of court appearances, virtual or/and in-person while handling a large caseload.

RESPONSIBILITIES INCLUDE

Analyze complex lawsuits referred from Claims and prepare necessary answers and responsive pleadings.
Interface and develop a rapport with our clients, claim customers, and our office team.
Conducts depositions and attends court conferences, arbitrations, motions, and trials.
Participates as a trial and/or appellate attorney in matters of significant exposure and complexity.
Possesses excellent knowledge of rules of evidence and civil procedure.
Possesses excellent knowledge of all aspects of Automobile Litigation, UM/SUM, and Premise Liability Insurance Law.
Provides legal research, advice, and direction to Claims on cases of significant exposure and complexity.
Work independently in making decisions in file handling, communicating those decisions appropriately, and keeping the Legal Management Team apprised.
Adept at working in a paperless environment, video conferencing skilled and proficient in computer legal case management systems.
Maintain minimum billing requirements

QUALlFICATIONS:

Possesses a minimum of ten years of relevant litigation and trial experience encompassing liability and damages verdicts.
Fully licensed to practice law in New York State and admitted to Federal Court in the Eastern and Southern Districts.
Must be able to handle a large caseload of High Indemnity matters including reporting requirements, roundtables, and a moderate to a significant amount of trial work.
Have a comprehensive knowledge of motor vehicle, premises, UM/SUM, and subrogation claims.

ADDITIONAL KNOWLEDGE. SKILLS AND ABILITIES

Excellent written and Oral Communication Skills
Willingness to work within the established system while also looking to improve processes and procedures and able to be flexible in all work assignments.
Proficiency with computer software including current Windows Operating System, MS Word, MS Teams, MS Outlook, and ability to adapt to new programs.

Legal Case Management Program experience is a plus. LexisNexis/TM

Attorney - Insurance Defense

Full Job Description

Attorney – Scahill Law Group
Responsible for handling a large volume of assigned litigation cases from inception through trial and to ensure all internal case handling and reporting requirements are consistent with the Scahill Law Group Litigation Philosophy and Litigation Management Guidelines. Provide the highest level of legal representation for Scahill Law Group Clients and their insureds.

Essential Duties and Responsibilities:
Following is a summary of the essential functions for this job. Other duties may be performed, both major and minor, which are not mentioned below. Specific activities may change from time to time.

Answer summonses and complaints
Initiate and respond to written discovery.
Prepare and respond to motions before the court.
Prepare for and attend all court appearances, as necessary.
Prepare for [including written submissions] and attend arbitrations where appropriate.
Prepare for, schedule, and conduct depositions and examinations under oath, as necessary.
Prepare for and attend trials, as necessary.
Maintain reporting procedures (i.e., file reviews, diary control)

Minimum Skills and Competencies:
The requirements listed below are representative of the knowledge, skill and/or ability required. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.

J.D. (Juris Doctor) Degree from an accredited US law school
Maintain appropriate licensing and educational requirements.
3 plus years of experience in insurance defense on behalf of an insurance carrier in any combination of the following areas: automobile liability, premise liability, liability claims and homeowner/premises,
Experience in all phases of litigation (including trials to verdict) involving complex, high risk and/or high exposure cases.
Possess a strong understanding of insurance law, including the laws and rules governing civil practice in the state of practice.
Ability to analyze legal issues and identify relevant case opinions and facts, as well as the ability to interpret laws, rules, and regulations.

Job Type: Full-time

Benefits:

401(k)
Dental insurance
Health insurance
Paid time off

Schedule:

Monday to Friday

Application Question(s):

Do you have experience in meeting hourly billing requirements?

Experience:

Insurance Defense: 3 years (Required)

Work Location: One location

Full Job Description

Primary Purpose:

Responsible for handling a large volume of assigned litigation from inception through trial and to ensure all internal case handling and reporting requirements are consistent with the Scahill Law Group Litigation Philosophy and Litigation Management Guidelines. Provide the highest level of legal representation for Scahill Law Group Clients and their insureds. Take ownership of any issue, problem, or error that could impact the company, policyholder, and/or loss participant.

Essential Duties and Responsibilities:

Following is a summary of the essential functions for this job. Other duties may be performed, both major and minor, which are not mentioned below. Specific activities may change from time to time.

Answer summonses and complaints
Initiate and respond to written discovery.
Prepare and respond to motions before the court.
Prepare for and attend all court appearances, as necessary.
Prepare for [including written submissions] and attend arbitrations where appropriate.
Prepare for, schedule, and conduct depositions and examinations under oath, as necessary.
Prepare for and attend trials, as necessary.
Maintain reporting procedures (i.e., file reviews, diary control)
Research and analyze legal questions and issues.
Write confidential legal memoranda.
Draft confidential opinions
Research and prepare post-trial motions and appeals.
Maintain current knowledge of applicable insurance law in the state of practice.

Minimum Skills and Competencies:

The requirements listed below are representative of the knowledge, skill and/or ability required. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.

J.D. (Juris Doctor) Degree from an accredited US law school
Maintain appropriate licensing and educational requirements.
3-5 years of experience in insurance defense on behalf of an insurance carrier in any combination of the following areas: automobile liability, premise liability, liability claims and homeowner/premises,
Experience in all phases of litigation (including trials to verdict) involving complex, high risk and/or high exposure cases.
Possess a strong understanding of insurance law, including the laws and rules governing civil practice in the state of practice.
Ability to analyze legal issues and identify relevant case opinions and facts, as well as the ability to interpret laws, rules, and regulations.
Possess strong analytical and critical thinking skills with the ability to provide concise, practical advice to non-lawyers.
Possess strong verbal and written communication skills with the ability to write motions and legal prose with clear and cogent arguments.
Possess strong organizational and time management skills.
Possess strong skills in attention to detail.
High degree of initiative, mature judgment, discretion, and the ability to handle sensitive matters on a confidential basis.
Possess strong client relationship skills with the ability to resolve conflicts and empathize with insured clients.
Possess strong negotiation skills.
Knowledge of complex medical issues, particularly orthopedic and neurological, with the understanding of etiology, causation, and treatment of injuries consistent with motor vehicle and premises accidents
Proficient in Microsoft Office (Word, Excel, Outlook, PowerPoint)
Proficient in Westlaw software
Solid understanding of the insurance industry and organizational relationships of the company, including the functions of other departments.

Desired Skills:

Experience in Legal Files case management software

Calendar Clerk

Job Description

A calendar clerk at Scahill Law Group, PC, is part of a team of dedicated professional’s that can handle a high-volume calendar. Under general supervision compile, verify and schedule daily calendars for court appearances of attorneys and perform other administrative duties related to the Calendar Department.

Essential Functions

· Experience scheduling Depositions

· Knowledge and understanding of the various court reporting agencies.

· Confirming court calendar, including but not limited to virtual conference, motions.

· Experience using a calendar system, such as a case management system to enter and keep track of all appearances.

· Contact attorneys and/or other parties regarding changes to court dates, including adjournments and cancellations.

· Review calendars to prevent over-booking.

· Interact with court, clients and attorneys on a daily basis.

Skills

· Oral Communication: Ability to communicate effectively with others using the spoken word.

· Organizing, Planning, and Prioritizing Work: The ability to arrange things or actions in a certain order or pattern according to a specific rule or set of rules (e.g., patterns of numbers, letters, words).

· Attention to Detail: Requires being careful about detail and thorough in completing work tasks.

· Time Management: Ability to manage one’s own time and utilize available work time to organize and complete work within given deadlines.

· Adaptability: Ability to adapt to change in the workplace.

· Dependability: Requires being reliable, responsible, dependable, and fulfilling obligations.

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Trial Tips: "Jesus Christ. Give Me a Straight Answer."