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New York Trial Notebook |
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Abbreviated Contents
CASE MANAGEMENT Chapter 1 New York Courts and New York Law Chapter 2 Differentiated Case Management and Conferences Chapter 3 Note of Issue, Trial Calendar, and Trial Preferences Chapter 4 Jury Demand and Waiver Chapter 5 Expert Witness and Medical Report Disclosure Chapter 6 Post Note of Issue Discovery MOTIONS BEFORE TRIAL Chapter 7 Amending and Supplementing Pleadings and Bills of Particulars Chapter 8 Motions to Sever and Bifurcate Chapter 9 Motion to Continue (Adjourn) Chapter 10 Voluntary Discontinuance Chapter 11 Disqualification of Judge Chapter 12 Disqualification of Counsel Chapter 13 Motions in Limine and Motions to Exclude Persons From Trial PREPARING FOR TRIAL Chapter 14 Case Theme and Trial Notebook Chapter 15 Qualification of Experts and Admissibility of Expert Testimony Chapter 16 Preparing Witnesses, Exhibits and Final Filings Chapter 17 Subpoenas: Compelling Witness Attendance and Productions at Trial Chapter 18 Alternatives to Testimonial and Physical Proof TRIAL Chapter 19 Interaction With Trial Participants Chapter 20 Jury Selection Chapter 21 Opening Statement and Court’s Preliminary Remarks Chapter 22 Proof: Order, Burdens and Standards Chapter 23 Eliciting and Refuting Testimony Chapter 24 Direct Examination of Lay Witnesses Chapter 25 Cross-Examination of Lay Witnesses Chapter 26 Direct Examination of Expert Witnesses Chapter 27 Cross-Examination of Expert Witnesses Chapter 28 Presenting Nontestimonial Evidence Chapter 29 Evidentiary Objections and Evidence Rulings Chapter 30 Preparation and Presentation of Closing Argument Chapter 31 Objections During Closing Argument Chapter 32 Jury Instructions Chapter 33 Verdicts and Verdict Sheets Chapter 34 Jury Deliberations and Rendition of Verdict TRIAL MOTIONS AND POST-VERDICT PROCEEDINGS Chapter 35 Motion for Judgment During Trial (Directed Verdict) Chapter 36 Motion for New Trial During Trial (Mistrial) Chapter 37 Other Motions During Trial Chapter 38 Post-Verdict Proceedings Table of Cases Table of Statutes and Rules Index Chapter 1 New York Courts and New York Law I. Civil Trial Courts §1:01 Trial Defined §1:02 List of Trial Courts §1:03 Supreme Court §1:04 County Court §1:05 New York City Civil Court §1:06 District Court §1:07 City Court §1:08 Town Court and Village Court §1:09 Court of Claims §1:10 Surrogate’s Court §1:11 Family Court §1:12 Small Claims and Commercial Claims §1:13 Involuntary Transfer to Lower Court §1:14 Summary Jury Trial §1:15 Commercial DIvision of Supreme Court II. Governing Law A. Constitution and Statutes §1:20 Law Governing New York Civil Trials §1:21 New York State Constitution §1:22 Constitutional Provisions §1:23 Statutes §1:24 General Statutes §1:25 Judiciary Law §1:26 Civil Practice Law and Rules §1:27 Uniform Court Acts §1:28 Court of Claims Act §1:29 Surrogate’s Court Procedure Act §1:30 Family Court Act §1:31 Additional Statutory Provisions B. Rules §1:40 Official Compilation of Codes, Rules, and Regulations §1:41 Rules of the Chief Judge §1:42 Rules of the Chief Administrator of the Courts §1:43 Uniform Rules for the New York State Trial Courts §1:44 Rules of the Supreme Court, Appellate Division (First and Second Departments) §1:45 Disciplinary Rules §1:46 Miscellaneous Rules C. Case Law §1:60 Importance of Case Law §1:61 Applicability of Case Law §1:62 Case Law Research §1:63 Read the Actual Case §1:64 Research Thoroughly Forms Form 1:10 Stipulation to Transfer Action to Summary Jury Program (Bronx Counry) Chapter 2 Differentiated Case Management and Conferences I. Differentiated Case Management §2:01 Introduction §2:02 Definition and Purpose §2:03 Rule Implements Three Conferences §2:04 DCM Trigger: RJI §2:05 Applicability §2:06 Preliminary Conference §2:07 Discovery Tracks §2:08 Compliance Conference §2:09 Pre-Trial Conference §2:10 Deadline Tables II. Pre-Trial Conference in the IAS Part §2:20 Introduction §2:21 Notification §2:22 Timing of the Conference §2:23 Purpose of Conference §2:24 Who Must Attend §2:25 What to Bring III. Other Conferences §2:30 Certification Conference §2:31 Pre-Voir Dire Settlement Conference §2:32 Initial Conference With Trial Judge IV. Settlement Basics A. General Points §2:40 Most Cases Settle §2:41 Benefits of Settlement §2:42 Know How Much Insurance Is Available §2:43 Know the Value of the Case B. Discovering Insurance Coverage §2:50 Demand Compliance With CPLR 3101(f) §2:51 Disclosure of Prior Claims and Payments §2:52 Compliance With CPLR §3101(f) §2:53 Prohibited Use of Disclosure §2:54 Policies Required to Be Disclosed C. Settlement Agreements §2:60 Requirements for Valid Agreement §2:61 Settlements in “Open Court” §2:62 Caution: Announcement of Settlement During Calendar Call Is Insufficient §2:63 Estoppel Exceptions to Open Court Requirement §2:64 Apparent Authority to Settle §2:65 Evidentiary Issues Concerning Settlements D. Infant’s Compromises §2:70 Court Approval Required §2:71 Affidavits and Supporting Papers §2:72 Child’s Attendance at Compromise Hearing §2:73 Guardian ad Litem Chapter 3 Note of Issue, Trial Calendar, and Trial Preferences I. Placing Case on Trial Calendar A. General Points §3:01 What Is Calendar Practice? §3:02 Governing Law B. Note of Issue and Certificate of Readiness 1. Prerequisites for Placing Case on Trial Calendar §3:10 Note of Issue or Notice of Trial and Certificate of Readiness Required §3:11 Request for Judicial Intervention 2. Note of Issue §3:20 Note of Issue Defined §3:21 Time for Filing Note of Issue §3:22 Medical, Dental, and Podiatric Malpractice Cases §3:23 Considerations of Trial Timing §3:24 New Parties Added After Note of Issue Filed §3:25 Demand for Note of Issue §3:26 Trial When Note of Issue Not Required 3. Certificate of Readiness §3:40 Certificate of Readiness Defined §3:41 Discovery Cut Off C. Procedure in Specific Courts 1. Supreme and County Courts §3:50 Filing Note of Issue and Certificate of Readiness §3:51 Fees §3:52 Trial Calendars §3:53 Trial Parts Dual-Track (First and Second Departments) 2. Court of Claims §3:60 Filing Note of Issue and Certificate of Readiness §3:61 Fee §3:62 Trial Calendar 3. Surrogate’s Court §3:70 Note of Issue and Certificate of Readiness §3:71 Trial Calendars 4. New York City Civil Court, City Courts, and District Courts a. Notice of Trial and Certificate of Readiness §3:80 Placement on Trial Calendar on Joinder of Issue §3:81 Notice of Trial §3:82 Pro Se Party §3:83 Trial Often Not Set Within Statutory Periods b. Trial Calendars §3:90 New York City Civil Court §3:91 City Courts §3:92 District Court 5. Justice Courts §3:100 Trial Date II. Trial Preferences §3:110 Effect of Trial Preference §3:111 Grounds for Granting §3:112 Preference Mandatory §3:113 Preferences Not Applied in Particular Order §3:114 When More Than One Preference Applies §3:115 Trial Preference in the Interests of Justice §3:116 Personal Injury and Wrongful Death §3:117 When to Apply for Preference §3:118 Procedure for Seeking Preference §3:119 Objecting to Preference Application §3:120 Reverse Preference Under CPLR 325(d) Forms Form 3:10 Note of Issue Form 3:20 Certificate of Readiness For Trial Form 3:30 Civil Court Notice of Trial Form 3:40 Civil Court Certificate of Readiness for Trial Form 3:50 Order Granting Permission to File Note of Issue Form 3:60 Demand to File Note of Issue from Defendant Form 3:70 Notice of Motion to Dismiss Complaint for Neglect to Prosecute Form 3:80 Affidavit in Support of Motion for Dismissal of Complaint for Neglect to Prosecute Form 3:90 Notice of Motion for Trial Preference Form 3:100 Affirmation in Support of Motion for a Trial Preference Form 3:110 Affirmation in Opposition to Motion for Trial Preference Form 3:120 Order Granting Preference Chapter 4 Jury Demand and Waiver I. Right to Jury Trial §4:01 Constitution Preserves Right to Trial by Jury §4:02 Counterclaims §4:03 Power of Legislature §4:04 Courts That Try Cases Before Juries §4:05 Actions Triable by a Jury §4:06 Advisory Jury §4:07 Cases Tried by Court II. Demand for Jury Trial §4:20 Whether to Demand Jury Trial: Advantages and Disadvantages §4:21 Demand for Jury Trial in Supreme Court and County Court §4:22 Demand for Jury Trial in Lower Courts §4:23 Separate Fees §4:24 Demand for Jury Trial of Only Some Issues §4:25 Mixed Trial by Court and by Jury §4:26 Jury Trial When Jury Triable Issues Revealed During Trial III. Waiver of Jury Trial §4:40 What Constitutes Waiver? §4:41 Once Demanded, All Parties Must Waive §4:42 Once Waived, Right Does Not Reattach §4:43 When Jury Trial Not Waived §4:44 Relief From Waiver Forms Form 4:10 Notice of Jury Demand Form 4:20 Stipulation to Withdrawal of Jury Demand Chapter 5 Expert Witness and Medical Report Disclosure I. Application of Expert Witness Disclosure Requirements §5:01 Disclosure Requirements §5:02 Not Applicable to Fact Witnesses §5:03 Not Applicable to Expert Consultants §5:04 Not Applicable to Treating Physicians Who Do Not Render Opinions §5:05 Not Applicable to Party Experts §5:06 Calling Adversary or Adversary’s Agents as Experts—The Adverse Party Witness Rule §5:07 No Right to Depose Experts II. Requesting Expert Witness Disclosure §5:20 No Disclosure in Absence of Request §5:21 Time to Request Expert Disclosure §5:22 How to Request Expert Disclosure §5:23 Combined With Request for Bill of Particulars §5:24 At Preliminary Conference §5:25 After Case Is Placed on Trial Calendar III. Responding to Request for Expert Disclosure A. Timing §5:30 Respond as Soon as Practicable B. Content of Response §5:40 Information Required to Be Disclosed §5:41 How Much Disclosure Is Sufficient? C. Failure to Comply With Expert Disclosure Requirements §5:50 Expert May Be Precluded From Testifying §5:51 Exception: Late-Retained Expert; No Time to Disclose §5:52 Misleading Disclosure §5:53 Monetary Costs and Sanctions D. Medical, Dental, and Podiatric Malpractice Experts §5:60 Disclosure of Names Not Required §5:61 Exception: Summary Judgment §5:62 Extent of Information Required to Be Disclosed §5:63 When Expert Is Examining Physician §5:64 Limited to Malpractice by Physicians, Dentists, and Podiatrists? §5:65 Disclosure of Identity and Deposition of Medical Experts IV. Further Disclosure of Expert Witnesses §5:70 Non-Medical Experts §5:71 Medical Experts V. Exchange of Medical Reports in Personal Injury and Wrongful Death Actions §5:80 Exchange Requirement §5:81 Penalty for Failure to Comply §5:82 Exchange of Medical Reports and Authorizations Before Examination §5:83 Exchange of Reports After Examination §5:84 Report Requirements §5:85 Report Versus Records §5:86 Report Not Required for Non-Treating, Non-Examining Witness §5:87 Wrongful Death Actions §5:88 Further or Additional Injuries or Conditions §5:89 Testimony of Additional Providers §5:90 Testimony Contrary to or Not Included in Report §5:91 Non-Disclosure Excused in Interest of Justice and for Good Cause §5:92 Failure to Prepare Report Is No Excuse §5:93 Motions Forms Form 5:10 Demand for Expert Witness Information Form 5:20 Notice of Motion to Add Late Retained Expert Form 5:30 Affirmation in Support of Motion to Add a Late Retained Expert Form 5:40 Affirmation in Opposition to Motion to Add a Late Retained Expert Form 5:50 Notice of Motion to Preclude the Testimony of a Late Retained Expert Form 5:60 Order Adding Late Retained Expert Form 5:70 Affirmation in Support of Motion to Preclude Testimony of an Undisclosed Expert Witness Form 5:80 _Affirmation in Opposition to Motion to Preclude Testimony of an Undisclosed Witness Chapter 6 Post Note of Issue Discovery I. General Points §6:01 Methods of Obtaining Post Note of Issue Discovery §6:02 Agreement to Continue Discovery Is Unenforceable §6:03 Distinction Between Two Situations §6:04 Supplemental Disclosure Distinguished §6:05 Supplemental Bill of Particulars in Personal Injury Actions §6:06 Third Party Post Note of Issue Discovery Practice II. Vacating and Reinstating Note of Issue A. Vacating Note of Issue §6:20 20-Day Deadline for Motion to Vacate §6:21 Caution: Stick to 20-Day Deadline §6:22 Grounds for Vacating §6:23 Grounds for Denial of Motion B. Reinstating Note of Issue §6:30 Motion to Reinstate §6:31 Deadline for Motion to Reinstate III. Reopening Discovery for Unusual or Unanticipated Circumstances A. General Points §6:40 Requirements §6:41 Case Remains on Trial Calendar B. What Constitutes Unusual or Unanticipated Circumstances §6:50 Mere Passage of Time Insufficient §6:51 Independent Medical Exams §6:52 Post Note of Issue Deposition §6:53 Post Note of Issue Inspection Forms Form 6:10 Notice of Motion to Strike Note of Issue Form 6:20 Affirmation in Support of Motion to Strike Note of Issue Form 6:30 Order Striking Note of Issue Form 6:40 Notice of Motion for Post Note of Issue Discovery Form 6:50 Affirmation in Support of Motion Permitting Post Note of Issue Discovery and Extending Date For Trial Form 6:60 Order Extending Date For Trial And Permitting Discovery Chapter 7 Amending and Supplementing Pleadings and Bills of Particulars I. Amending and Supplementing Pleadings A. General Points §7:01 Distinction Between Amendment and Supplement §7:02 Typical Reasons for Amending or Supplementing Pleadings §7:03 Caution: Avoid Failure of Proof §7:04 Response to Amended or Supplemented Pleadings B. Methods for Amending Pleadings §7:10 Amendment Without Leave or Stipulation §7:11 Amendment and Supplement by Stipulation §7:12 Amendment and Supplement by Leave C. Motion for Leave to Amend or Supplement §7:20 Movant’s Burden §7:21 Merits of Application §7:22 Prejudice §7:23 Prejudice Requires New Facts §7:24 Passage of Time as Prejudice §7:25 Amendment to Increase Ad Damnum Clause §7:26 Amendment Seeking Punitive Damages §7:27 Statute of Limitations and Relation-Back Doctrine §7:28 Conditions on Grant §7:29 Amendment to Assert Exception to CPLR Article 16 D. Motion Papers §7:40 Required Papers §7:41 Time for Bringing Motion §7:42 Notice of Motion or Order to Show Cause §7:43 Proposed New Pleading Must Be Included §7:44 Affidavit of Merit §7:45 Service of Filing §7:46 Opposition Papers II. Amending and Supplementing Bill of Particulars §7:60 Defined §7:61 One Amendment Before Note of Issue §7:62 Personal Injury Actions: Supplement up to 30 Days Before Trial §7:63 Standards for Granting Motion to Amend or Supplement Bill of Particulars Forms Form 7:10 Stipulation to Amend or Supplement Pleadings Form 7:20 Notice of Motion to Amend Complaint and Bill of Particulars to Increase Ad Damnum Clause Form 7:25 Order to Show Cause Why Complaint and Bill of Particulars Should Not Be Amended to Increase Ad Damnum Clause Form 7:30 Affirmation in Support of Motion to Amend Complaint and Bill of Particulars to Increase Ad Damnum Clause Form 7:40 Proposed Amended Verified Complaint Form 7:50 Plaintiff’s Affidavit in Support of Motion to Amend Complaint and Bill of Particulars to Increase Ad Damnum Clause Form 7:60 Notice of Motion to Amend or Supplement Bill of Particulars Form 7:70 Affirmation in Support of Motion to Amend Bill of Particulars Chapter 8 Motions to Sever and Bifurcate I. Severance A. General Points §8:01 Purpose §8:02 Authority §8:03 Any Party May Move to Sever §8:04 Discretion to Sever Exercised Sparingly §8:05 Common Issues of Law or Fact: Severance Improper B. Severance in Specific Situations 1. Multiple Parties §8:10 Multiple Defendants: Severance After Default §8:11 Multiple Defendants: Severance Proper §8:12 Multiple Defendants: Severance Improper §8:13 Multiple Plaintiffs Versus Single Defendant 2. Counterclaims §8:20 When Court May Sever 3. Third Party Claims §8:30 Severance When Asserted Shortly Before Trial §8:31 No Severance When Issues Are Related and There Is Time for Discovery §8:32 Third Party Claims Introducing New Questions C. Motion for Separate Trial of Issues §8:40 Reason to Seek §8:41 Case Examples: Separate Trial Proper §8:42 Case Examples: Separate Trial Not Proper D. Procedure §8:50 Timing §8:51 Making the Motion §8:52 Opposing Motion II. Bifurcation A. General Points §8:60 Purpose and Authority §8:61 Either Party May Raise §8:62 Court May Order Sua Sponte §8:63 Trial Court’s Discretion §8:64 Change of Venue §8:65 Bifurcation in Punitive Damage Cases B. Bifurcation in Negligence and PI Actions §8:70 Bifurcation Is General Rule §8:71 Rules Encourage Bifurcation in PI Cases §8:72 No Bifurcation When Nature of Injuries Bears on Liability §8:73 Exception: Bifurcation May Be Permitted Even When Issues Are Interwoven C. Tactics §8:80 Defense: When Bifurcation Is Desirable §8:81 Defense: When Bifurcation Is Undesirable §8:82 Plaintiff: When Bifurcation Is Desirable D. Procedure §8:90 Timing §8:91 Making the Motion §8:92 Opposing Motion §8:93 Effect of Court’s Failure to Rule §8:94 Continuance to Prepare for Bifurcation E. Order of Proceedings on Bifurcation §8:100 Liablity Normally Precedes Damages §8:101 Voir Dire When Both Phases Tried Before Same Jury §8:102 Supplemental Opening Statement §8:103 Continuance of Damages Phase After Finding of Liability §8:104 Reverse Bifurcation §8:105 Trifurcation Forms Form 8:10 Notice of Motion to Sever Action Form 8:20 Affirmation in Support of Motion to Sever Third Party Action Form 8:30 Order Severing Third Party Action Form 8:40 Notice of Motion for Unified Trial Form 8:50 Affirmation in Support of Motion for a Unified Trial Form 8:60 Affirmation in Support of Cross-Motion for a Bifurcated Trial and in Opposition to Plaintiff’s Motion for a Unified Trial Form 8:70 Order granting a Unified Trial Chapter 9 Motion to Continue (Adjourn) I. Purpose and Procedure A. General Points §9:01 Purpose §9:02 Authority §9:03 Potential Grounds §9:04 Making the Motion §9:05 Opposing the Motion B. Ruling on Motion §9:10 Motion Addressed to Court’s Discretion §9:11 Factors Considered II. Grounds A. Scheduling Problems for Counsel and Court 1. Engagement of Counsel in Another Court §9:20 Governing Rule §9:21 Priority §9:22 Exceptional Circumstances §9:23 Counsel’s Affirmation of Engagement §9:24 Rejection of Valid Affirmation Is Abuse of Discretion §9:25 Scope of Further Inquiry §9:26 When Firm Has More Than One Trial Attorney §9:27 Trial Date Set at Least Two Months in Advance 2. Other Scheduling Problems Regarding Counsel §9:40 Counsel in State Legislature §9:41 Illness and Death: Interplay With CPLR 321(c) §9:42 Counsel’s Failure to Appear Is No Excuse §9:43 Exception: Exceptional Rights at Stake 3. Court’s Schedule §9:50 Court’s Schedule May Be Considered B. Withdrawal or Discharge of Counsel §9:60 Withdrawal of Counsel §9:61 Discharge of Counsel §9:62 Counsel Discharged to Be a Witness C. Unavailability of Parties and Witnesses §9:70 Party Unavailable §9:71 Witnesses Unavailable D. Case Not Ready for Trial §9:80 New Elements in Trial (Surprise) §9:81 Counsel’s Lack of Preparation Is No Excuse §9:82 Exception: Exceptional Rights at Stake §9:83 Discovery Not Completed E. Other Grounds §9:90 Publicity §9:91 Omnibus Reasons Forms Form 9:10 Notice of Motion for an Adjournment Form 9:20 Affirmation of Engagement in Support of Motion for an Adjournment Form 9:30 Affirmation of Party’s Unavailability in Support of Motion for an Adjournment Form 9:40 Affirmation of Witness’ Unavailability in Support of Motion for an Adjournment Chapter 10 Voluntary Discontinuance I. General Points §10:01 Authority §10:02 Only by Party Asserting Claim §10:03 Methods II. Purpose and Effect §10:10 Reasons to Discontinue §10:11 Discontinuance Is Normally Without Prejudice §10:12 Statute of Limitations and “Do Over” Toll III. Discontinuance Without Court Order §10:20 By Notice §10:21 By Stipulation of All Parties IV. Discontinuance by Court Order A. Before Submission to Court or Jury §10:30 Rule §10:31 Procedure §10:32 Timing §10:33 Discontinuance Is Within Court’s Discretion §10:34 Prejudice to Defendant §10:35 No Discontinuance to Avoid Court Order §10:36 No Discontinuance to Avoid Imminent Loss §10:37 Terms and Conditions §10:38 In Practice: Whether to Oppose B. After Submission §10:50 Stipulation and Court Order Required §10:51 Rationale Forms Form 10:10 Notice for Voluntary Discontinuance Form 10:20 Stipulation to Discontinue Action Chapter 11 Disqualification of Judge I. Statutory Disqualification §11:01 Authority §11:02 Statutory Disqualification Is Mandatory §11:03 When Judge Has Been Counsel §11:04 When Judge Is “Interested” §11:05 When Judge Is Related to Party II. Rule Disqualification §11:10 Authority §11:11 Rule Disqualification Is Discretionary §11:12 Opinion on Merits Is Not Bias §11:13 Bias Must Affect Result §11:14 Disqualification Not Warranted §11:15 Disqualification Warranted III. Disqualification of Judiciary Panel by Change of Venue §11:20 Authority §11:21 Courts Hesitant to Grant IV. Procedure §11:30 Make as Last Resort §11:31 Timing: No Deadline §11:32 Motion Based on Bias: Bring Post-Trial §11:33 |
