The Trial of a Civil Jury Action in New York 9780231897914

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THE TRIAL OF A CIVIL JURY ACTION IN N E W YORK

THE

TRIAL

A CIVIL JURY IN N E W

OF ACTION

YORK

B Y BERNARD

L.

SHIENTAG

Justice of the Supreme Court of the State of New York

NEW COLUMBIA

YORK

UNIVERSITY

1938

PRESS

CoPYRICIIT

1938

BY

C O L U M B I A U N I V E R S I T Y PRESS, N E W

YORK

FOREICN A C F N T S : O X F O R D U N I V E R S I T Y PRESS, H u m p h r e y

Mil-

ford, Amen House, London, F..C. 4, England, AND B I. Building, Nicol Road, Bombay, India; KWANC HSUEH PUBLISHING HOUSE, 140 Peking Road, Shanghai. China; MARU/.EN COMPANY, LTD., 6 Nihonbashi, Tori-Nichome, T o k y o , Japan M A N U F A C T U R E D IN THE UNITED STATES OF A M E R I C A

FOREWORD THE Committee on Post Admission Education of the Alumni Association of the Law School of Columbia University is glad to make available to law students and to practitioners generally this reprint of what has become one of the best-known recent articles on jury trials. One of the important subjects of consideration by the organized Bar and law schools today is the matter of post admission education. T h e subject has received careful consideration by two special committees of the Association of the Bar of the City of New York, one under the chairmanship of Colonel C. W . Wickersham and the other under the chairmanship of Sol M. Stroock. T h e committees on Legal Education of that Association, also under the chairmanship of Mr. Stroock, and of the New York County Lawyers Association, under the chairmanship of George A. Spiegelberg, have likewise studied the subject. The Joint Conference on Legal Education, of which Colonel C. W . Wickersham is presi[v]

dent, has also taken up the matter. Throughout the country considerable interest in the matter of post admission education has been manifesting itself. Articles on the subject have been published in law magazines and elsewhere. The Section on Legal Education of the American Bar Association devoted its program at the annual convention held in Kansas City in 1937 to the problems involved. The Alumni Association of the Law School of Columbia University took cognizance of the important developments in this field by the appointment last year of the Committee on Post Admission Education. It was felt by the committee, after consultation with other interested persons, that one of the desirable things which it might do would be to make available for students in law schools and for members of the Bar this article on the important subject of jury trials. The article was delivered originally as a lecture at the Columbia Law School by the Hon. Bernard L. Shientag, Justice of the Supreme Court of New York, and has since been enlarged and revised by him. It has appeared, in substance, in the United States Law Review and the New York Law Journal. T h e committee acknowledges the fine cooperation of Harold R . Medina, President, and Albert G . Redpath, Secretary, of the Alumni Association of [vi]

the Law School of Columbia University, and of Young B. Smith, Dean of the School, in making possible this publication. EDWARD COMMITTEE

GLUCK,

Chairman

ON POST ADMISSION

EDUCATION

A L U M N I ASSOCIATION OF T H E L A W SCHOOL MAY,

I938

OF COLUMBIA

UNIVERSITY

[vii]

CONTENTS FOREWORD

V

PREPARATION FOR TRIAL

6

TRIAL MEMORANDUM

13

THE SELECTION OF A JURY

17

AMENDMENT OF PLEADINGS

20

O P E N I N G OF C O U N S E L

23

THE TRIAL GENERALLY

26

DIRECT EXAMINATION

40

CROSS-EXAMINATION

55

REDIRECT EXAMINATION

73

REBUTTAL

74

MOTION TO DISMISS THE COMPLAINT

76

MOTIONS FOR THE D I R E C T I O N OF A VERDICT

77

[ix]

SPECIAL VERDICTS

80

S U M M A T I O N OF C O U N S E L

81

THE JUDGE'S CHARGE, EXCEPTIONS, AND R E Q U E S T S T O C H A R G E

91

M O T I O N S FOR A N E W T R I A L

97

CONCLUSION

99

A SFLF.CTED READING LIST

[x]

107

T H E TRIAL OF A CIVIL JURY ACTION IN N E W YORK

M

OST P R A C T I T I O N E R S T O D A Y A R E

unskilled in the rules of evidence. This is a hard saying, but those who ought to know report it so unanimously. The trial judges know the rules better, but still imperfectly. Is it not startling to reflect on the meaning of this?" 1 Beneath the crust of exaggeration, certain vital truths stand out in this statement made by Professor Wigmore, although I am not nearly so pessimistic on the subject as he is.

It is not my purpose to

analyze the cause of the condition so bluntly described. It may be due in part to faulty or inadequate methods of teaching the law of evidence in our law schools. It undoubtedly is due in large measure to the fact that in this country we require no special qualifications or training for trial counsel. 1

WIGMORE, EVIDENCE

( 2 d ed.

1923)

124.

[3]

In England the barrister alone is permitted to try cases and to argue appeals in the higher courts. Not only is there a marked distinction between the prerogatives and functions of barristers and solicitors, but the barrister himself undergoes a period of apprenticeship and training. First, there is the junior of the stuff gown, who assists in the preparation of a case for trial and the examination of the law applicable thereto, and who often occupies a subordinate position in the actual trial itself. Then you have the leader who has taken silk and who assumes charge of and responsibility for the conduct of the trial or the argument of the appeal. All of this tends to produce a trained Bar of trial counsel whose closeness to the administration of justice is intensified by the fact that they have no direct contact with or retainer from the litigants but deal with them through their solicitors. You could hardly expect a surgeon who has occasion to perform an abdominal operation several times a year to be as skillful and to possess the same technique as one who operates several times a day. Moreover, a tendency has developed among leading lawyers in this country to avoid conflict at the Bar and to limit their activities to the less exhilarating but often more remunerative and more restful branches of the profession. 14)

This is not a paper on the subject of trial evidence. Referring only incidentally to the rules of evidence, I shall deal with some of the features of the conduct of a trial which I feel a judge is peculiarly qualified by his experience to discuss. The discussion will be confined to problems arising in civil jury trials generally, without going into the problems presented in the trial of special types of cases, such as the will contest, the negligence case, the malpractice action, the action for libel, the action for false arrest and malicious prosecution, matrimonial actions, actions for goods sold and delivered, for breach of contract of employment, for broker's commissions, and so forth. Even with this limitation only the high spots will be touched upon, and I shall be content if what I have to say will arouse an interest in the subject and cause the reader to delve into it further on his own account. In an interesting little book entitled The Physician's Art, Alexander George Gibson says, "To attempt to convey something of the substance and marrow of art may seem a bold if not an impossible task. Art is individual, acquired by long practice and effort, and its quality is ethereal and elusive; a man's art can be seen and acknowledged, and yet the power of it cannot be entirely passed on to others. But good art is in keeping with certain broad prin-

[5]

ciples, and may be helped by rules and by prohibitions if they are not binding." 2 It is well, therefore, at the outset, to emphasize that so-called rules of advocacy should be guides and not dogmas. An English judge, whose name I have forgotten, once said that for a litigant to win he should have a good case, a good lawyer, good witnesses, a good judge, and good luck. You should not let the want of this apparently unattainable combination trouble you, however, for your opponent, too, may find himself laboring under the same handicap. ([ P R E P A R A T I O N F O R

TRIAL

T h e best way to w>n a case is to prepare it. That is likewise the best way to obtain an advantageous settlement for your client. Nothing can take the place of thorough, conscientious, and painstaking preparation for trial—preparation on the facts and on the law. Preparation involves the study not only of your own case but, so far as possible, of your opponent's as well. This certainly is true with respect to the law of the case. Do not make the mistake of underestimating the zeal, the ability, or the learning of your adversary. Examine the pleadings to see if they properly raise the issues you desire to litigate. a

»933-

[6]

Pa

S e 27-

Many an unfortunate attorney has been embarrassed by having it pointed out at the trial that his pleadings are defective or that his bill of particulars has been so drawn as not to permit him to introduce the proof he deems necessary to establish liability or the damage claimed to have been sustained. Attorneys on both sides, for instance, are likely to overlook the provisions of section 255-a of the New York Civil Practice Act that "in any action involving the sale and delivery of goods, or the rendering of work, labor or services, or the furnishing of materials, the plaintiff may, in a schedule attached to and forming part of his verified complaint, set forth and number the items of his claim and the reasonable value or agreed price of each. Thereupon the defendant, by his verified answer, must indicate specifically the items, if any, which he disputes in respect of delivery, or performance, reasonable value, or agreed price." Failure of the defendant to comply with the statute may result in judgment on the pleadings in favor of the plaintiff. Attention should be given to demands for bills of particulars, examinations before trial, depositions, discovery and inspection, and the physical examination of a plaintiff in a negligence action. In a proper case, it may be desirable to resort to sections 323 and 324 of the Civil Practice Act, with respect

[7]

to demand for admission of the genuineness of a paper or of any specific fact or facts. The importance of the examination before trial cannot be overestimated. It will shorten the trial, clarify the issues, eliminate non-controversial matters, and at times enable you to dispense with long and expensive proof. Success or failure on the trial itself will often depend on the skill and the thoroughness with which you resort to that preliminary examination. It may be advisable to make appropriate motions with respect to the form and the sufficiency of the pleadings of an adversary. Whether or not a jury trial should be demanded is a matter not to be overlooked. In commercial litigation, generally, a jury should be waived unless the client insists otherwise. If a motion for summary judgment is in order it should be made promptly. Unnecessary interlocutory motions should be avoided. Some day we shall have a practice similar to the English summons for directions, when all interlocutory applications are made and disposed of at one time and the issues defined. Do not overlook the service of necessary subpoenas, subpoenas duces tecum, and of a notice to produce original books, papers, and documents claimed to be in the possession of the other side, in order to lay the foundation for the introduction of secondary evidence concerning their contents. If in [8]

order to make out a prima facie case you must have the testimony of the opposing party or of hostile witnesses, subpoena them or arrange with your opponent to have them present. Do not take it for granted that they will be in court when you need them. The possibility of being required to prove the mailing of writings should always be kept in mind. The following are some rules which it will be well for you to bear in mind when preparing for trial: 1. See that the client and all available witnesses are interviewed. 2. Ascertain who are likely to be called as witnesses on the other side and along what lines their cross-examination may be fruitful; in other words, what witnesses are to be feared and how they may be refuted. 3. Do not be in the class of those attorneys who tell their clients to come to them the day or the very morning before the trial or who boast that they interviewed their clients while the court was sitting. 4. Allow plenty of time to those who consult you, and earnestly exhort them to state every particular offhand, however verbosely or however far they may wish to go back, for it is less an inconvenience to listen to what is superfluous than to be left ignorant of what is essential. Nor should the attorney in interviewing his client and witnesses have so much

[9]

confidence in his memory as to think it too great trouble to write down what he hears. 5. You should never place too much reliance on a client; he must be sifted and cross-examined. For, as by physicians not only are apparent ailments to be cured but even such as are latent are to be discovered, even though the persons who require to be healed conceal them, so an advocate must look for more than is laid before him. T h e client must be questioned sharply and pressed hard, for by searching into every particular we sometimes

discover

truth where we least expect to find it. 6. T h e best advocate for learning the merits of a cause is he that is least credulous, for a client is often ready to promise everything, offering a cloud of witnesses and documents quite readily and averring that the adversary himself will not even offer opposition on certain points. 7. It is particularly important to examine all the writings relating to a case; it is not sufficient to inspect them; they must be read through, for very frequently they are either not at all such as they are asserted to be, or they contain less than was stated, or they are mixed with matters that may injure the client's cause, or they say too much and lose all credit from appearing to be exaggerated. T h e foregoing I believe to be excellent rules for

[10]

preparing a case, and it will undoubtedly surprise you to learn that the language in which they are framed is almost word for word from Quintilian's Institutes of Oratory, written over eighteen hundred years ago. Human nature has not changed very much with the intervening centuries. Remember that it is not alone your right but your duty to see that every witness is interviewed and cross-questioned before you put him on the stand. Ask each prospective witness to tell you the whole truth, and make it so clear to him that the interview is a regular, well-recognized procedure, that when he is asked on cross-examination if he discussed the case with counsel he will frankly and unhesitatingly say yes. Many witnesses think that the interview with counsel is to be concealed. I need hardly say that there is every difference in the world between interviewing a witness, getting his story and preparing him in a general way for what he may expect on cross-examination, and coaching a witness. Tell the witness he will be cross-examined; tell him what this is, so that it will not come as a surprise to him and cause his resentment. If the other side has examined him before trial, have him read over his testimony. Tell him to answer opposing counsel courteously and directly and to try not to become involved in controversies and bickerings [11]

with him. In preparing your case for trial—indeed, throughout the trial—never lose sight of the admonition given by one who in his day was a great leader of the Bar in America and one of its most distinguished trial lawyers: "Do not consider your client a saint because he is your client. Never let him say with truth that you have made any compromise with right because he paid you. He may say so, but let it be certain that he speaks falsely when he does." 3 Make sure you have available every bit of documentary evidence helpful to your case. That is the best, most reliable, and most convincing form of testimony you can offer. Many an experienced trial judge has said that he placed greater reliance on the smallest scrap of writing than on the most retentive memory. If there are any technical matters involved in the trial you will have to prepare yourself thoroughly on them. In negligence cases it is of the utmost importance to obtain as promptly as possible a photograph of the scene of the accident and to have a search made for material witnesses. The police blotter may help you to obtain some of the witnesses. Examine the hospital records and the report of the accident made by the driver to the Motor Vehicle 'COUDERT,

[12]

ADDRESSES

(1905)

413.

Bureau. Signed statements should, if possible, be obtained from the eye witnesses. T h e statements should follow closely the language actually used by the persons interviewed. B e especially careful about statements obtained from minors. An adult member of the family should be present when the minor is interviewed and should witness the statement. In any case where the physical scene of the occurrence is of importance, it should be visited by counsel who is to try the case so that he may have a clear picture of it in his mind. |[ T R I A L MEMORANDUM Prepare a trial memorandum on the law, to be handed to the court at the outset of the trial. Judges will welcome it. Make the memorandum brief. O n e good case cited in support of a proposition is better than a dozen, for the chances are that the judge, even if willing, will not find time to read numerous cases. A short extract from an opinion is at times helpful. It arouses the interest of the judge and will lead him to send for the case and read the whole of it. Run down each case you cite to make sure that it has not been reversed or modified and to see if it has been affirmed or followed by a higher court. If you cite an Appellate Division case, mention the department in which it was decided; if a case in the [13]

Federal, New York Supplement, or Miscellaneous reports, state what court rendered the decision. Paradoxical though it may seem, the court of original jurisdiction, which has to make rulings promptly on questions of law and which requires and should receive the greatest assistance and enlightenment from the Bar, is accorded the least, while the appellate court, which has ample opportunity for reflection and deliberation, is overwhelmed with a plethora of citations on the most elementary propositions of law. W h y lawyers should proceed on the theory that trial courts are presumed to know all the law, and the appellate tribunals none at all, is beyond my comprehension. Notwithstanding the ancient legal saw, lawyers by this time should know enough not to make that mistake in either instance. " I n England," writes Professor Goodhart, "with a practising bar limited to a few hundred barristers of ability and experience, the courts are free to assume that their sole duty is to determine the issue on the arguments advanced by counsel. . . . Judicial work becomes overwhelming if the judge must depend on his own research for the relevant authorities." 4 Remember that rarely are you permitted to raise a point on appeal which you did not raise below. A 4

E S S A Y S IN J U R I S P R U D E N C E

[Hi

(1931)

72.

well-prepared trial brief on the law, which is today the exception, should be the universal rule. Do not shrink from referring to a case which apparently is against you. Lord Macmillan, who was one of England's foremost barristers, says, "One of the most conspicuous, and perhaps one of the most creditable, of the instincts of all intellectual minds is a tendency to assist anyone who confesses that he is struggling with a difficulty. I call it the instinct of rescue. There are occasions when it is worth enlisting on your side. When you know that your case is confronted with a serious difficulty in the shape of an awkward passage in the evidence or an embarrassing precedent, do not shirk it. Read the awkward passage with all emphasis or quote the authority without flinching, and point out the difficulty which it creates for you. You will almost invariably find that the first instinct of the Judge is to assist you by pointing out that the evidence is less damaging to you than you represented or that the precedent is on examination distinguishable. . . . A good man struggling with adversity always makes an appeal to the judicial as well as to every other generous mind!" 5 For your own information and guidance at the "Some Observations on the Art of Advocacy ( 1 9 3 5 ) CAN.

BAR R E V I E W

THINGS ( 1 9 3 7 )

203,

22,

2 4 ; reprinted

in

LAW

AND

13

OTHER

204.

[15]

trial, it may be helpful, in some cases, to prepare a trial memorandum on the facts, listing the matters you will be required to prove and the exhibits you will have to offer in order to establish your case, and setting forth what you expect to prove by each witness, forms of questions to be put to the witness, and particularly subjects on which adverse witnesses are to be cross-examined. If you represent the plaintiff, prepare a set of "marked" pleadings for the court so that the court may tell at a glance, when he goes over each allegation of a complaint, how it is dealt with in the answer. The admissions and denials in the answer should be indicated in typewriting or in ink in the margin of a copy of the complaint. The admissions and denials in the reply should likewise be indicated in the margin of a copy of the answer. If the case has been up on appeal, a copy of the printed record, the briefs, and the opinion or determination of the appellate court should be furnished to the trial judge. While I have stressed the importance of preparation on the law, do not make the mistake of concentrating on the law to the neglect of the facts. Emphasis should always be placed on the facts, and you should consider carefully how to present your version of them most effectively to the jury.

[16]

Before I leave the subject of preparation for trial I want to impress upon you the advice given by Lord Russell of Killowen, who, while at the Bar, was one of the most distinguished and successful barristers. "Try and apply the judicial faculty to your own case in order to determine what are its strong and weak points, and in order to settle in your own mind what is the real turning-point in the case. This method enables you to discard irrelevant topics, and to mass your strength on the point on which the case hinges." 8 If you want to win cases, follow that advice from the moment you start to prepare for trial and at every stage of the trial itself. ([ T H E

SELECTION

OF

A

JURY

It is of the utmost importance that a fair and impartial jury be selected, a jury not prejudiced or biased in any way. In New York the examination is by counsel; the court rarely participates therein. Do not abuse this privilege. The jury should be told briefly what the case is about and why they are being questioned. Tell them that the purpose of the examination is to obtain a fair and unbiased jury. This will remove any resentment that a juror may have because he is asked questions about matters "Quoted in

MANSON, THE BUILDERS OF OUR LAW ( 1 9 0 4 )

435

[17]

which he believes to be his private concern. As far as possible make your questions general and put them to the jurors collectively. If anything special arises you may question a juror individually. Do not, except in unusual situations, question jurors about their understanding of the law applicable to the case. Ask them if, irrespective of any notions they may have, they will accept the law as laid down by the court. Ask if they know any of the parties, counsel, or prospective witnesses. Ask such questions, depending on the nature of the case, as would tend to show whether they would be likely to be biased or prejudiced one way or the other because of any past experience of their own or of their close relatives or friends. In a negligence action we still resort to the fiction that jurors are not to know that liability insurance is carried. You should not ask whether any juror is employed by or holds stock in any specific insurance company. T h e better practice is to ask the general question whether any juror is employed by or holds stock in or is otherwise interested in any company which writes insurance against liability for accident.7 Challenges are of two kinds, for cause or to the favor, as provided in section 452 of the Civil Practice ' B u t see Rinklin v. Acker, 1 2 5 App. Div. 244, 109 N . Y . Supp. 1 2 5 (2d Dept. 1 9 0 8 ) ; Dulberger v. Gimbel Bros., 76 Misc. 2 2 5 , 1 3 4 N . Y . Supp. 5 7 4 (App. Term 1st Dept. 1 9 1 2 ) .

[18]

Act, and peremptory, as provided in section 451. In exercising peremptory challenges, which are six in number in the higher courts, you will, of course, have to be guided by your experience of human nature and by your intuitive insight. The appearance and the conduct of the juror and the way he answers questions may help you to determine whether he would be fair to your side of the case. The parties, as well as counsel, should be present when the jury is examined. The last question to be asked is whether, irrespective of any questions that have been put, there is anything in the mind of any juror, by reason of any past experience or otherwise, that would prevent him from giving both sides a square deal, from fairly and impartially deciding the ease in accordance with the evidence and in accordance with the law laid down by the court. In the Municipal Court of the City of New York there is ordinarily a jury of six, in the higher courts a jury of twelve, but in a civil case the parties may stipulate to proceed with a lesser number of jurors. If the case is likely to be a protracted one, you should call the attention of the court to this fact at the outset of the trial. Section 449-a of the Civil Practice Act provides that "whenever it appears to the court that the trial of an action triable by a jury is likely to be a protracted one, the court may cause

[19]

an entry to that effect to be made in the minutes of the court, and thereupon, immediately after the jury is empaneled and sworn, the court may direct the calling of one or two additional jurors, in its discretion, to be known as 'alternate jurors.'" T h e alternate jurors are to be treated in all respects like the other jurors and are designed to take the place of any ordinary juror who becomes unable to perform his duty before the final submission of the case. In lieu of empaneling the extra jurors, the respective parties and their attorneys may stipulate in open court that, in the event of the inability of one or two jurors to perform their duties, the parties agree to proceed with the remaining jurors. Such a stipulation will accomplish the purpose of the section— the prevention of a mistrial because of the disability or disqualification of one or two jurors during the progress of the case. ( [ A M E N D M E N T OF P L E A D I N G S AND MOT I O N TO DISMISS C O M P L A I N T FOR INS U F F I C I E N C Y A T T H E O P E N I N G OF T H E TRIAL If you have prepared your case well, there will ordinarily be no occasion for you to have to apply at the trial for an amendment to your pleadings or bill of particulars. Should this become necessary you should endeavor to give as much notice as possible

[20]

to your opponent, in advance of the trial, of the application for amendment you propose to make. This will tend to overcome any claim of surprise by your adversary, a claim which, by the way, should be interposed only in good faith and when necessary. The amendment of pleadings at the trial is within the discretion of the court; the tendency is to be liberal in this regard. The court will, as a rule, depending upon the nature of the action, the character of the proposed amendment, and the amount of notice given to the other side, ( i ) permit the amendment with or without costs, and, if surprise is claimed, allow a reasonable adjournment to enable the opposing party to prepare for any new issue raised by the amendment; (2) send the case back to the calendar, to afford the moving party an opportunity to apply at Special Term for the amendment he seeks, 011 such terms and conditions as may there be imposed; or (3) if a jury has been sworn before the application for amendment is made permit the withdrawal of a juror, that is, declare a mistrial for the purpose of enabling an application for amendment to be made at Special Term. The courts frown, and properly so, on motions made at the opening of a trial to dismiss a pleading for insufficiency. Such motions should properly be made at Special Term before the trial. The court

will then be in a position adequately to study the questions of law involved and the adversary may have an opportunity, if necessary, to amend. Some lawyers for tactical reasons feel that they should wait until the day of trial to make their motion addressed to the sufficiency of their opponent's pleadings. But this will rarely avail them. The court, as a general rule, will not dismiss a pleading unless it clearly appears that it cannot be corrected so as to set forth a good cause of action. Do not lose sight of the distinction between a motion for a specific amendment of a pleading and a motion to conform the pleadings to the proof. Where timely objection is made to the sufficiency of the pleadings or to the admission of evidence thereunder, application should be made for a specific amendment of the pleadings to meet the objection interposed, and the pleadings reframed. "It is only when no objection is taken, or when at the end of the case, evidence having been received without objection, and the question is then raised, that the trial court is warranted in making an order amending the pleadings to conform to the proofs." 8 "Audley Supp. 5 7 5 , 217 N. Y. Bros., Inc., Supp. 884,

[22]

v. Townsend, 1 2 6 App. Div. 4 3 1 , 434, 1 1 0 N . Y . 5 7 7 (2d Dept. 1 9 0 8 ) ; Molloy v. Briarcliff Manor, 5 7 7 , 580, 1 1 2 N . E . 429, 4 3 0 ( 1 9 1 6 ) ; Stokes v. Drefs, 244 App. Div. 524, 527, 279 N . Y . 888 (4th Dept. 1 9 3 5 ) .

([ OPENING OF COUNSEL Under our practice, after the jury has been empaneled, the plaintiff makes an opening statement or address to the jury and the defendant follows with a similar opening. T h e practice of having the defendant open at the conclusion of the plaintiff's case has been done away with. W h e n I say the plaintiff opens to the jury I refer to the side having the affirmative, or burden of proof, on the entire case. T h e right to open and close is determined by the state of the pleadings and not by any concessions made at the trial. T h e opening may be waived by either party, and no inference is to be drawn by reason thereof. It is unwise, however, to waive an opening unless both sides stipulate to do so. If, after the plaintiff has opened, a defendant fails to open and tell what his defense is, the jury may get the impression that there is no real defense, but that an attempt will be made to build one up. In a complicated case especially, the opening is of real importance. State briefly and simply what you expect to prove, in support of either your cause or your defense, as the case may be. Do not go into any detailed statement of the evidence you expect to adduce, of the witnesses you expect to call, or of what they will testify to. A tedious recital of the [23]

evidence which the attorney thinks he has is a common mistake made in the opening to the jury. It detracts from the interest attached to the witnesses when called to testify. Moreover, there may be discrepancies between what counsel says he expects to prove by a particular witness and what that witness actually testifies. This will hurt your case, notwithstanding any reservation you may have made in your opening. An experienced trial lawyer summed it up when he said that "an opening should always be short enough to leave opportunity on the part of the jury to be interested in getting the evidence at first hand, but should always be long enough so that whatever is said is understood, and there is nothing at all that is over their heads as the trial proceeds; and whether it is five minutes or two hours and a half, must all depend on the nature of the case." Do not exaggerate in your opening. Scarlett, the great English advocate who afterwards became Lord Abinger, made it a rule to understate rather than to overstate the facts which he expected to prove. "Whatever strikes the mind of the juror as the result of his own observation and discovery makes always the strongest impression upon him. No error is more fatal to an advocate than exaggeration, yet none is more common." The trained advo[ 2 4 ]

cate manages to have the salient points of his case "slide into the minds" of the jurors. Do not refer to the law in your opening unless it is necessary for a clear understanding of the case. In any event make it plain that, irrespective of what you say about the law, the jury is to take the law from the court and not from counsel on either side. Clarify the issues. If there are any unusual or complicated transactions, give a general explanation of them so that the jury will be in a position to understand the testimony as it is presented. In an accident case describe the scene of the accident so that the jury may have a clear picture of it throughout the trial. Do not go into details about the injuries. It is always difficult to determine to what extent you will refer to your opponent's defense in your own opening. The general rule is not to anticipate a defense. You cannot be dogmatic about this, however. Particularly where separate affirmative defenses have been interposed, it may become important to deal with them in your opening and state what you expect to prove concerning them, if in fact they are pressed on the trial. An opening is not a summation or an argument. It is an introduction to your case. It is the tilling of the soil, to prepare it most favorably to receive the seeds about to fall from the lips of the witnesses [25]

and from the pertinent documents. Look the jurors squarely in the eyes and use your opening to impress them with your sincerity and fairness. Talk to them rather than at them. Speak in an ordinary tone of voice. If you represent a defendant, ask the jury to reserve judgment until they have heard both sides. A motion to dismiss on the opening of counsel should never be made except in a case which is so clear as to leave no room for doubt. It is hardly necessary to say that such a case is a rarity. The motion is almost invariably denied. ([THE TRIAL GENERALLY

Have your exhibits arranged in order, unostentatiously, each exhibit preferably in a separate numbered envelope, in which it should be replaced after it has been used. If there are numerous exhibits an index should be prepared. In whatever manner you keep your exhibits they should be arranged so that you may readily find each one as it is wanted. There is nothing so distracting and so exasperating as the frantic search for exhibits in the course of a trial. While a cold mathematical precision in such matters should be avoided, it is much worse to be careless and slipshod. "There can be no good advocacy that is not orderly in its presentation. . . . I have indeed heard [26]

it said of an artist in advocacy that he never argued his cases; he merely stated them. So orderly and adroit was his arrangement of his statement that the conclusion which he wished to be drawn appeared inevitable. The colloquial retort—'I'm not arguing with you, I'm telling you'—has a subtler application than its users generally appreciate. In this connection I venture to impress upon all whose ambition it is to be successful advocates that they should not neglect the mechanical side of preparation. Orderliness in the arrangement of the documents in a case has far more importance than is generally realized. Which of us has not seen the discomfort and confusion produced by a paper going amiss just at the moment when it is wanted. . . . I speak from the fullness of my heart when I say that I have seen more trouble in Court over disorderly papers than from any other cause. So I decline to treat as a triviality beneath counsel's notice this matter of the tidiness and accessibility of the documents in the case." 9 If a paper may properly be marked in evidence at the outset, do not waste time by first marking it for identification and then in evidence. If you have a number of documents or writings dealing with the •LORD MACMILLAN, op. Cit. supra note 5, at 22, 25, 26; reprinted in LAW AND OTHER THINGS ( 1 9 3 7 ) 2 0 5 , 2 0 6 .

[27]

same subject matter, offer them all in evidence at one time, having each paper marked as a separate exhibit if you so desire. Keep a record at the trial of the number of each exhibit received in evidence or marked for identification. Plaintiff's exhibits are generally marked numerically, defendant's exhibits alphabetically. If you offer an important original document in evidence, have a photostatic copy ready and ask to have that marked in evidence in place of the original, unless, of course, there is some special reason for having the original submitted to and examined by the jury. A filed paper or a public record is not ordinarily marked. It is given an exhibit number and considered as marked. A brief description should be stated for the record to identify the paper or document. W h e n a letter or document in a foreign language is offered in evidence a translation should be attached thereto. W h e n it is proposed to offer some object in evidence a tag should be attached on which the exhibit number may be marked by the stenographer. Give the stenographer time to mark the exhibit before you start asking questions about it. W h e n you use an exhibit on examination refer to the number so as to keep the record straight. Mention-

[28]

ing an exhibit number to a witness repeatedly is likely to confuse him and to distract the attention of the jury. Once the exhibit has been properly identified, in the course of the examination it may be sufficient to show the number to the stenographer as you put your question. Read the exhibit to the jury after it has been marked in evidence or explain that you will read it later. D o not distract the attention of the jury by passing exhibits around to them while you are examining a witness. Ask the other side for concessions as to matters not in dispute as you proceed to lay the foundation for offering a paper in evidence. You may ask for the production of a paper in the possession of the other side without being required to offer it in evidence. 10 The pleadings are part of the case and may be deemed to be before the court. T h e better practice is to mark them in evidence specifically, if special attention is to be directed to any portion of them as admissions. The same procedure should be followed where the opponent's original pleading, which it is desired to have brought to the attention of the jury, has been amended. Do not pile up your side of the table with a lot 10

Smith v. Rentz, 1 3 1 N . Y . 169, 30 N . E . 54 ( 1 8 9 2 ) ; People v. Miller, 257 N . Y . 54, 58, 1 7 7 N . E . 306 ( 1 9 3 1 ) .

[29]

of law books. If you feel you will require them, try to keep them out of sight until they are needed. In this connection, I am reminded of a story told by Sir Edward Parry about an incident that occurred on circuit in one of the lower courts in England. " A t one place a solicitor began quoting some law from a book, when his opponent got up indignantly and said it was a well-understood local custom that if a solicitor was going to bring a law book he should give notice to the other side. I agreed," said Mr. Justice Parry, "that it was a very proper custom, and impounded the law book, feeling strongly that if there was any advantage in the possession of the law book it should be with the Court." 1 1 Consider whether you desire to have all witnesses excluded from the court room until each in turn is called to testify. An application to exclude witnesses should be made at the outset of the trial and is addressed to the discretion of the court. Even if the motion is granted, a party, or, in the case of a corporation, one of its officers familiar with the facts has the right to remain. Proceed expeditiously. "Seest thou a man diligent in his business? he shall stand before kings." While this adage of Solomon should ever be kept in mind, we should not overlook Bacon's equally pertinent a

MY OWN WAY (1932) 225.

[3°1

observation: "Measure not dispatch by the time of sitting but by the advancement of the business." Lord Maugham recently said that "most Judges, if not all, are agreed that those counsel who have learnt the art of compression are the more successful, whether before a Judge alone or before a Judge and jury." 1 2 Always rise when you address the court or make an objection or motion. Do not attempt any familiarity with the court. Avoid the expression, "Now, judge." Bear in mind that, so far as the form is concerned, it is the court you are addressing and not a particular judge. Try to avoid jingling coins or twirling your chain. Do not turn to the back of the court room as you are asking a question. As a general rule all evidence is received unless objected to by the opposing party. A court may on its own initiative exclude certain evidence, but this is rarely done except where it involves unnecessary repetition. If a party fails to make timely objection he is ordinarily deemed to have waived his right to object. Objections to questions should be put before they are answered. Avoid as far as possible the indiscriminate use of the words "immaterial," "irrelevant," and "incompetent." There is a substantial disU

T H E TICHBORNE CASE

(1956)

12.

[31]

tinction between the competency of testimony on the one hand and its materiality or relevancy on the other. You have no idea what respect a judge has for a lawyer who recognizes this distinction when he interposes an objection. If you object to the competency of certain evidence, your objection should be specific. A general objection is not available on appeal "unless there is some ground which could not have been obviated if it had been specified or unless the evidence in its essential nature is incompetent." On the other hand, if a general objection is sustained the ruling will be upheld on appeal if there was any ground for the exclusion of the evidence. If the witness has answered quickly, and before you have had a chance to object, move to strike out his answer. The same procedure should be adopted if the answer is not responsive or gives the conclusion of the witness rather than facts, but this should be ignored if what the witness has volunteered is of no consequence. 13 By Chapter 61 of the Laws of 1938, effective September 1, 1938, sections 445 and 446 of the Civil Practice Act were amended to obviate the necessity of taking exceptions to adverse rulings of the court where the party adversely affected, at the time of the M

See ELDER, Striking Out the Answers of a Witness, N . Y . L . J., March 20 and 2 1 , 1 9 3 5 , pp. 1 4 1 6 , 1 4 3 8 .

[32]

ruling, made his position known to the court by objection or otherwise. This does not apply to the charge of the judge. "Exception to the charge given to the jury by the court or any part thereof and to the granting or refusal of requests to charge shall not be deemed to have been taken unless expressly noted by the party adversely affected before the jury have rendered their verdict." In a civil action every witness is required to be sworn. T h e judge, by preliminary questioning, passes on the capacity of a young child or of an insane person to testify. T h e weight to be given to the testimony of such a witness, after he has been sworn, is for the jury to decide. From the outset, impress the jury with your fairness, your sincerity, and your earnestness. Do not interpose technical objections. Join with your opponent in a fair concession of undisputed facts. D o not, by interposing formal objections, hinder your opponent in his proof of facts the existence of which your client does not really question. Sooner or later he will, despite the obstacles you put in his way, bring out the facts. Sometimes he will do so with the assistance of the court. T h e jury will look with disfavor upon your tactics and will attach undue importance to the testimony you fought to keep from them.

[33]

The avoidance of technical objections not only is helpful to your cause but is a duty you owe to the court. That duty is not to be disregarded because your adversary has done something to displease you. Even if your opponent has refused to waive a jury in a case which you think should properly be tried by the court alone, do not, as I have observed lawyers do, start to harass him by making every possible technical objection. You are thus hurting your cause and forgetting your duty as an officer of the court. An attorney's ability is not measured by the number of objections he makes; quite the contrary. Elihu Root once said, "It does not help a case any on the merits to be so technical about evidence. On the contrary, it hurts the case with judges and juries, and it ought to do so because there is a fair implication that the lawyer who is so very particular about little points is not very confident in the merits of his case. How common it is to see an unsophisticated witness on the stand trying to tell a true story about some event with which he is familiar, and continually stopped and bewildered by objections based upon distinctions which do not exist in his mind at all, and finally leaving the stand with a feeling that he has been bottled up and not allowed to tell the truth. So far as my observation goes, there are about twenty objections to the admission of evidence in a [34]

trial in an American court to one in an English court."" If you are wise, you will not, except in unusual circumstances, object to a question on the ground that it involves a confidential communication between attorney and client, but will have your client waive the privilege. Never object to a paper offered in evidence until you have looked it over. While on its face objectionable, it may contain something very helpful to your case. I have frequently seen this mistake made by trial counsel. You have a right to examine, and for purposes of cross-examination should always examine, a paper which a witness has used to refresh his recollection. You are not required to offer that paper in evidence as a condition to examining it. Do not object to a question unless there is some real reason for it. Time and again, when a senseless objection has been made, I have turned to counsel and asked what is really the ground of the objection, only to be met with "objection withdrawn." Then there is the story, apocryphal, but with a certain truth behind it, of the attorney who interposed an objection and on being asked by the court, "Mr. X , do you think your objection is sound?" "ADDRESSES

ON G O V E R N M E N T

AND

CITIZENSHIP

(1916)

6

495- 49 -

[35]

replied, " I really do not think so, but I did not know how your Honor might feel about it." D o not have the court treat you as Wildy Wright, an English barrister, was treated. A newly appointed judge had been puzzled by an objection to evidence made by Mr. Wright and reserved his ruling on that point until he had consulted his brother judge at the adjournment. During the luncheon interval he put the point to his brother, who was likewise perplexed. "And who raised the point?" he asked, after a few moments of deep thought. "Wildy Wright." " O h , " replied his brother, with a sigh of relief. "Wildy Wright! Overrule it. And if he makes any other objections, overrule them too." The learned judge went back to court and in courteous, silvery tones said, "Mr. Wright, I have carefully considered the objection you raised before the adjournment and consulted my learned brother, and we are both agreed that I ought to overrule it. And I may say for your assistance that if in the course of the case you make any other objections I shall feel it my duty to overrule those also." 1 5 Do not get into controversies with the court on ordinary questions of evidence. Generally the court "PARRY,

[36]

op. cit. supra note 1 1 , at 43, 44.

rules immediately on the admissibility of evidence and hears no argument. If any novel or unusual question of evidence is presented, ask to be heard, but if the court declines, ask other questions tending to show more clearly the purpose for which the evidence is offered. If the court still declines to receive it, you may, in a proper case, ask for permission to make a formal offer of proof. If you feel that an adverse ruling on your objection would have a serious effect on your case and that you may succeed in convincing the court of the correctness of your position, ask for a recess and state the situation frankly to the court in the absence of the jury. I do not believe that unseemly quarrels with the court, however great the provocation may appear to be, should ever be indulged in. Very often, apparent rudeness from the Bench is the result of the tremendous pressure to which judges are subjected because of congested calendars or of nervousness and inability to grasp quickly some of the points of a complicated case. The advocate will get the best results if he responds with the utmost courtesy. A soft answer in such a situation is always effective. There are ways in which an astute advocate can soften and win over an overbearing judge. Do not lose your head. An imperturbable self-possession is a quality that every good advocate should possess.

[37]

Do not worry if the judge appears to be against you. "Of two evils," said Lord Hannen, an experienced English appellate judge, " I had rather have a judge dead against me than too strongly in my favor." Do not misunderstand me. There are times when a lawyer must assert himself. " I will at all hazards," said Erskine, "forever maintain the dignity, independence, and integrity of the Bar, without which impartial justice can have no existence." However, you should always bear in mind what one of our own great advocates, Frederic R . Coudert, said. "Remember that you may be both a lawyer and a gentleman; but if you have to choose between the two, take the latter. T h e practice of your profession will give you special facilities for showing yourself a bully. You will gain distinction by ignoring those opportunities under any possible temptation." 16 " W h e n once you gain the character, which you should covet, of being an honorable opponent, you will inspire a confidence which will be of immense value to you." 1 7 You are there to win your case, not to show your capacity as a wit or at sharp repartee. You may hurt your cause by unduly impressing the jury with the fact that you are a "smart" lawyer. " O p . cit. supra note 3, at 414. " C R I S P E , R E M I N I S C E N C E S OF A K . C .

[38]

(1909)

217.

While the overcordial, beaming lawyer is likely to rub a jury the wrong way, the other extreme is also to be avoided. I have seen lawyers enter a court room with faces sour enough to curdle the milk of human kindness in any individual; and I have seen lawyers come in with a chip on their shoulders—to be invariably accommodated by having it knocked off with a disconcertingly effective blow. A nature "sloping toward the southern side" helps in the court room. If, during the trial, you feel that your case has been seriously prejudiced by improper conduct on the part of your adversary which you conscientiously believe deprives your client of a fair and impartial trial, you may move for the withdrawal of a juror; that is, for a mistrial. T h e granting of such a motion is discretionary. It should not be made except where the situation clearly demands it. If you represent a plaintiff and are suddenly confronted with inability to prove your case, you may fall back on your right to discontinue or move for a non-suit on payment of costs. "Under the general rule a plaintiff may discontinue an action or submit to a voluntary non-suit at any time before its issues have been committed to the court or a jury. . . . This rule, however, is not absolute. It is subject to various exceptions—as in a case where the defendant in good [39]

faith has acted affirmatively by interposing a valid counterclaim or asserted a claim to the property involved and in his answer demands affirmative relief in reference to it. If, under these conditions, he resists the discontinuance of the action the discretion of the court may be successfully invoked. . . . Likewise if substantial rights of third parties have accrued which would be prejudiced by the termination of the action, a discontinuance will be denied. . . . The courts have also denied discontinuance where, because of a time limitation in a contract, the defendant would be unable to defend a second action if the first action was terminated. . . . A further exception to the rule has found expression in matrimonial actions where public interest has been held to be concerned. In such cases the courts have denied the discontinuance of an action where the marriage itself or the legitimacy of children is involved." 18 ([DIRECT

EXAMINATION

Direct examination, or examination in chief, has been defined as "the art of making a witness tell his story naturally and in the manner most calculated to affect the minds of the hearers favorably." 19 Piedmont Hotel Co. v. Nettleton Co., 241 App. Div. 562, 563, 272 N. Y . Supp. 573, 576 (4th Dept. 1 9 3 4 ) ; 2

CARMODY, N E W

YORK

PRACTICE

(2d

ed.

1930)

$

800;

see

also Vallee v. Vallee, 1 5 3 Misc. 641, 275 N. Y. Supp. 808 (Sup. Ct. 1 9 3 4 ) .

[ 4° ]

The order in which you call your witnesses is important. You should, so far as possible, build up your case in logical fashion. At the same time you want to enlist the interest of the jury and endeavor to keep that interest from flagging. On direct examination the witness should tell his story fully. This is one of the tests of an able trial lawyer. Too often something is overlooked and forgotten, and the redirect examination is availed of, not to deal with new matter developed on crossexamination, but to bring out matter which should have been fully covered on the direct. While courts are likely to be liberal in this regard, your case may be weakened. The new testimony may be regarded as an afterthought, opportunity is afforded for further cross-examination, and much time is wasted in unnecessary and for the most part unfruitful repetition. Make the witness feel at ease and relaxed. Allow him to tell his story in his own way by putting one or two general questions. First bring out the opportunity that the witness had of knowing the facts concerning which he is about to testify, and then let him tell his story. Particularly should this course be followed if the witness is intelligent and possesses a pleasing personality. If he is stopped in the course of his testimony on objections of the other side, you are in no way prejudiced. You have been willing to [4O

let the witness testify freely and without guidance. Juries like that. It is your opponent who is seeking to bottle up the witness. Juries resent that. If the witness is stopped, you may then proceed with the examination in regular question and answer form. T h e following are some of the things which should be kept in mind and which experience shows are often overlooked on this branch of the case: 1. Put your questions in simple language. If you need an interpreter, ask the clerk of the court for one before the witness is called. When using an interpreter, put the questions in direct form. Thus, "Where were you on the night of April 1 3 ? " instead of, "Ask him where he was on the night of April 1 3 . " 2. Do not make a memorandum, which you constantly consult, the basis of your direct examination. If you do, you destroy the effect of the testimony given, for it then presents the appearance of a rehearsed story. T h e testimony given on direct "should appear to be a kind of spontaneous conversation between counsel on one hand and the witness on the other." Look at your brief (or, under our practice, your notes or memoranda) as little as possible while you examine in chief, Mr. Justice Darling advises, for the witness is not then embarrassed by the con-

[42]

stant fear of giving an incorrect or imperfect version of what you appear to be reading. 3. Avoid putting your questions in leading form. "Did you then walk to the right?" is bad. "Where did you then go?" is good, although "Did you then walk to the right or left?" is permitted. T h e vice of the leading question is not cured by correction after objection. T h e practice is frowned upon as tricky and unsportsmanlike. 4. Avoid framing your question so as to call for a conclusion. English courts are more liberal in this respect than we are, although our courts are happily much less technical on this point than they used to be. "What was agreed upon?" is bad. Ask the witness to state in substance what was said or what he said and what was said to him. " W h a t was the condition of the step?" may be objected to, although rather unwisely, I believe. Many judges prefer, "Did you look at the step? What did you see?" I knew a judge, shortly after I was admitted to the Bar, who managed to get rid of every troublesome objection to evidence by sustaining it on the ground that it called for a conclusion. He kept this process up until he exhausted inexperienced counsel and either the question or the objection was withdrawn. With a little care and practice you can frame most of your questions on the basis of four or five simple

[43]

forms. " W h a t did you see?" " W h a t did you do?" " W h a t did you see X do?" or " W h a t did X do?" " W h a t did you hear X say?" or " W h a t did X say?" " W h a t did you say?" Questions in this form have the effect of making the witness specific and exact in his testimony and preventing him from going into irrelevant matters. 5. Avoid repeating, as a matter of routine, the answers given by the witness. This is a fault of inexperienced counsel. It indicates nervousness on your part and shows that you are thinking not of the answer but of what question you will next put. " W h e r e did you go then?" " I walked to the corner." " Y o u walked to the corner?" " Y e s . " " W h a t did you then do?" " I stood there a few minutes." " Y o u stood there a few minutes?" "Yes." And so on. It not only wastes time but minimizes the value of the testimony. It should rarely be resorted to on direct examination. Occasionally an answer may be repeated to emphasize an important point; so, too, in the case of an illiterate witness whose responses are not readily understandable. 6. D o not press a witness too strongly unless you are certain he has really overlooked something. You may be subjected to the same embarrassment as M r . Henry W . T a f t says he was, in the days of his inexperience, when, in a collision of a car float be-

[44]

longing to a corporation he represented, he examined a lookout on the float. He tried to get from the witness what his duties were. " I pressed the witness by three or four questions without evoking what I sought, and finally, with a show of impatience, said: 'Well, what were you standing on the bow of the float for, anyhow?' T h e answer came very readily: 'To be a witness for the company in case anything happened.' " 1 9 7. Avoid asking witnesses who are unfamiliar with diagrams or charts to put marks on them to illustrate the testimony they give. Leave that to cross-examination by your opponent and you can then, with good grace, claim the ignorance or confusion of the witness. A photograph may be received in evidence if the witness testifies that it fairly and accurately represents conditions as they existed at a given time. It is not necessary to prove the date when the picture was taken or to call the photographer who took it. Those are matters that may be developed on crossexamination if there is any question concerning the existence of the condition shown on the picture. If you intend to offer an x-ray in evidence and have it explained to the jury, ask the clerk in advance for the use of a shadow-box. 8. In the ordinary civil action a lay witness is not, "WITNESSES

IN C O U R T

(1934)

27.

[45]

as a rule, called to testify concerning the mental condition of a party. In a negligence case, where it is claimed that a mental ailment has resulted from the accident, it is important to establish the injured person's mental condition before the accident. Often you are not in a position to call a physician for this purpose. A layman may be called to describe the acts and conduct of the plaintiff as observed by him and to characterize the acts and conduct so observed and described as rational or irrational. "Did the acts and conduct you have described impress you as rational or irrational?" You cannot ask whether they were, in the opinion of the witness, the acts or conduct of a rational or irrational man. A different rule applies to subscribing witnesses to a will. 9. If you call an expert witness and he has outstanding qualifications which would give weight to his opinion, ask for a brief recital of his training and experience. Do not accept the concession of qualification offered by the other side; such concession is often made for the purpose of minimizing the weight to be given to the testimony. 10. An expert witness may, on direct examination, be asked to give the reasons for the opinion he expresses.20 This should not be overlooked, for your 20 Johnson Service Co. v. Maclernon, 1 4 2 App. Div. 677, 1 2 7 N . Y . Supp. 4 3 1 (1st Dept. 1 9 1 1 ) .

[46]

opponent may refrain from cross-examining such a witness, particularly if he intends to call others who will take issue with him, and you may thus have no opportunity later to go into the grounds of his opinion. There is a limitation of this rule in the case of an expert witness who testifies concerning the value of real property. 21 l i . The long hypothetical question has fallen into disrepute, and properly so. In the ordinary negligence case it will generally be conceded, on request, that an accident of the character involved would be a competent producing cause of the injuries claimed. If not, ask the question in that simple form. If a hypothetical question is really necessary, avoid all unessential details. Ask the expert to assume only those facts which are necessary for him to consider in forming his opinion. Do not start with assuming, for example, that on January 1 at four o'clock in the afternoon plaintiff left her home to go to the grocery store. Be sure that every fact you ask an expert to assume is supported by the evidence; that is, by a construction which may fairly be placed on the evidence. While the courts are not so technical about this as they used to be, the testimony of the expert may be largely impaired, if indeed it is not 21 See Robinson v. New York Elevated R. R., 175 N. Y . 219, 67 N. E. 431 ( 1 9 0 3 ) .

[47]

rendered worthless, if he has been asked to assume certain facts which are either not in evidence or contrary to the evidence. A doctor as witness, for example, should be questioned thus: "Assuming . . . [here insert the essential facts, including the condition before the accident and the fact that no other accident or illness occurred thereafter], can you state with reasonable certainty whether the accident here involved is or would be a competent producing cause of . . . [the condition complained of]?" It is also proper to ask the question in this form, with appropriate modifications: "Can you state, with reasonable certainty, whether the accident sustained by the plaintiff has lighted up, precipitated, or aggravated a pre-existing condition so as to produce or bring about the disease, ailment or condition from which the injured person is now suffering?" T h e requirement that the expert give his opinion with reasonable certainty does not apply to the question of the permancnce of an already existing disease or injury. T h e courts distinguish between opinion evidence on this question and such evidence as to the possible outbreak in the future of new diseases or sufferings as the result of the accident. T h e reasonable-certainty rule applies only to the development of disease conditions apprehended in the future but

[48]

not present at the time of inquiry. 22 Opinion evidence may therefore be offered as to the probable consequences of an existing condition even though the opinion may not be pronounced with reasonable certainty. 23 Thus, if permanent injuries are claimed, the expert may be asked: " C a n you state whether the injuries from which the plaintiff is now suffering are permanent? In your opinion, are such injuries, or is the condition from which the plaintiff is suffering, permanent in character?" The better form, in fact the general practice, is to have the expert express his opinion with reasonable certainty as to the permanence of existing injuries, even though that is not strictly required under the authorities. An expert personally familiar with the facts may be asked for his opinion directly; one unfamiliar with the facts must have them stated to him hypothetically as the basis for his opinion. 24 Where an expert has heard all the testimony it is sometimes not necessary to put a detailed hypothetical question to him. As to whether an expert witness M

Strohm v. New York, L. E . & W . R . R., 96 N . Y . 305 (1884). a Cross v. City of Syracuse, 200 N . Y . 393, 94 N . E . 184 ( 1 9 1 1 ) ; Griswold v. New York Central & H. R . R., 1 1 5 N . Y . 6 1 , 21 N . E . 726 ( 1 S S 9 ) . " Christastie v. Elmira Water Co., 202 App. Div. 270, 272, 195 N. Y . Supp. 156, 1 5 7 (3d Dept. 1 9 2 2 ) .

[49]

may be asked to give an opinion on what he has heard in court, the situations and corresponding rulings vary, often depending on the trial court's judgment of whether the facts on which the opinion is based are sufficiently particularized.28 ( 1 ) The witness may not be asked, "Upon all the testimony in the case, what is your opinion on a given point?" 26 (2) The witness may not be asked, "On what you have heard of the testimony in this case, what is your opinion?" 27 (3) A question may not generally be asked assuming the truth of the testimony of several specified witnesses.28 (4) A question may be asked assuming the truth of a single witness's testimony, though if the testimony is so extended or confused that the scope of the assumed premises is not clear, it will not be allowed.29 When objection is made, it is safer and * 1 WICMORE, op. cit. supra note 1, J 681. "People v. McElvaine, 121 N. Y. 250, 24 N. E. 465 (1890).

"Sanchez v. People, 22 N. Y. 147, 154 (I860). " Reynolds v. Robinson, 64 N. Y. 589, 595 (1876); Guiterman v. Steamship Co., 83 N. Y. 358 (1881); Snelling's Will 1 3 6 N . Y . 5 1 5 , 32 N . E . 1006 ( 1 8 9 3 ) .

"McCollum v. Seward, 62 N. Y. 316 (1875); Seymour v. Fellows, 77 N. Y. 178, 180 (1879); Link v. Sheldon, 136 N . Y . 1 , 9, 32 N . E . 696, 698 ( 1 8 9 2 ) .

[50]

the better practice, even when dealing with the testimony of a single witness, to set forth the facts to be assumed by the expert. When the same hypothetical question is to be put to a number of experts it should be reduced to writing. It need only be read in open court when it is put to the first expert on the stand. The others may be asked if they have read or heard the hypothetical question. Do not, as a general rule, object to a hypothetical question because it is bad in form. The judge himself, to expedite the trial, may be obliged to put the question in what he considers the proper form. 12. If a state of mind is relevant you may always show what it is. Lord Bowen said, "The state of a man's mind is as much a fact as the state of his digestion." 80 In an action for fraud, for example, you may, in fact you must, ask whether the plaintiff relied on the representations of the defendant and whether he believed them to be true. So, when it is claimed that an accident has caused a mental ailment, statements and writings of the plaintiff during the progress of his illness, although not made to a physician, are admitted, not as evidence of the truth thereof but as evidence of his state of mind. "Edgington v. Fitzmaurice, 29 Ch. Div. 459, 483 ( 1 8 8 ; ) .

[51]

Whether they are genuine or feigned is for the trier of the facts to determine. 13. The rule against impeaching the credibility of your own witness (other than an adverse party), by his prior inconsistent statements, does not prevent you from showing that the facts are different from those testified to by your witness. A new section 343-a was added to the Civil Practice Act in 1936 to provide that a witness may be contradicted by proof of a prior inconsistent statement made by him either in writing or under oath. This may be done, in the words of the statute, "irrespective of the fact that the party has called the witness or made the witness his own." 14. You frequently hear it said that you cannot prove agency out of the mouth of the agent. Y o u can on the witness stand but not on what the agent said out of court. On the stand it is always proper to ask an agent to testify concerning the facts of his agency. His conclusions will not, of course, be received. His statements or admissions out of court with respect to the existence of the agency are not binding on his alleged principal. Indeed, no admissions of an agent, unless they are spontaneous declarations or are made within the scope of his authority, are binding on his principal. Thus the statements of a conductor made shortly after an accident,

[52]

that his brakes were out of order, are not binding on his employer. If, however, the conductor should testify on direct examination that his brakes were in good order, on laying the proper foundation, evidence of the conductor's prior contradictory statement that his brakes were not working may be received, not as indicating the truth of the prior statement or as binding on the employer but as bearing on the credibility of the conductor and the reliability of his testimony generally.31 15. A witness may use any paper for the purpose of refreshing his recollection, and this although he had nothing to do with its preparation, indeed, even though he never saw it before. Those are matters which may be gone into on cross-examination. The paper should be marked for identification. Generally it may not be received in evidence at the instance of the party resorting to it, but it may be marked in evidence by the other side as bearing on the probability that the recollection of the witness was in fact refreshed by the paper. There is an important distinction between the use of a paper to refresh the recollection of a witness and the receipt in evidence of a paper which is an accurate record of a past recol" Larkin v. Nassau Elec. R. R., 205 N. Y . 267, 98 N. E. 465 ( 1 9 1 2 ) ; Kay v. Metropolitan St. Ry., 163 N . Y . 447, 57 N. E. 751 (1900).

[53]

lection made at the time of the transaction but from which the witness is unable to refresh his recollection at the trial. 32 16. Throughout a trial involving a motor vehicle accident it may often be helpful to bear in mind that the number of feet a car travels per second is approximately one and one-half times its rate of speed per hour. Thus, if an automobile is proceeding at the rate of 1 5 miles an hour, it will travel a distance of about 22 feet per second. 17. Be very careful when you offer testimony subject to connection. You assume a great responsibility. T h e court, relying on assurance of counsel, will often permit this to be done. Never ask it unless it is essential and you are certain you can supply the missing links. If you fail to do so it will not only hurt your case, because the testimony taken subject to connection will, on motion, be stricken out and the jury instructed to disregard it, but your reputation as an efficient and honorable trial attorney may suffer. In an extreme case a mistrial may even be declared by the court. You may wonder why I place so much emphasis on the direct examination. An English judge, when 1,3 Huff v. Bennett, 6 N . Meaney, 1 8 3 N . Y . 190, WIGMORE, op. cit. supra EVIDENCE (4th ed. 1 9 3 1 )

[54]

Y . 3 3 7 , 339 ( 1 8 5 2 ) ; McCarthy v. 1 9 3 , 7 6 N . E . 36, 37 ( 1 9 0 5 ) ; 2 note 1, 7 5 8 - 7 6 5 ; RICHARDSON, $$ 5 4 4 - 5 5 2 .

at the Bar, gave the answer, "I don't give a straw about the witnesses against me; it's my own I'm afraid of." Certainly no one can quarrel with the latter part of this statement. CROSS-EXAMINATION

There is no short cut to mastery of the art of cross-examination. It requires experience, observation, and study. According to Francis L. Wellman, "it requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self-control; power to read men's minds intuitively, to judge of their characters by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject matter itself; an extreme caution; and, above all, the instinct to discover the weak point in the witness under examination. One has to deal with a prodigious variety of witnesses testifying under an infinite number of differing circumstances. It involves all shades and complexions of human morals, human passions, and human intelligence. It is a mental duel between counsel and witness."83 The office of cross-examination is to test the truth or falsity of material adverse testimony given by an opposing witness. This may be done by discrediting 33

THE ART OF CROSS-EXAMINATION

(1936) 8.

[55]

the story or the witness, or both. So cross-examination is employed to test the accuracy of his observation and recollection, to bring out facts showing material inconsistencies (not those which may normally be expected and which strengthen rather than weaken the original testimony), to bring out the worst traits of the witness, to show interest, bias or partisanship, or susceptibility to suggestion, or to show a bad record affecting credibility. While it is an important function of cross-examination to discredit the opposing witnesses, and the function which is undoubtedly most dramatic, do not lose sight of the fact that a large part of the time consumed in cross-examination may be profitably devoted to the more prosaic task of eliciting facts material or helpful to the examiner's side. The great trouble with cross-examination as it is practiced is that there is altogether too much of it; it is resorted to without discrimination and whether it is needed or not. Most attorneys feel that they are derelict in their duty to their clients unless they subject each opposing witness to vigorous crossexamination, a procedure which more often harms rather than helps the cause of the client. Serjeant Ballantine said, " . . . I have heard many cross-examinations . . ., listened to with rapture by an admiring client, each question of which has been destruction

[56]

to his case." 34 Few lawyers stop to consider whether the witness has, in fact, testified to anything material against them, whether he has injured their cause in any way, or whether he has really made any impression at all; few lawyers stop to consider whether any cross-examination is necessary or advisable, and, if so, on what topics and to what extent. The great English barrister Scarlett said, " I learned by much experience . . . that much more mischief than benefit generally results from crossexamination. I cross-examined, in general, very little." Erskine is reported to have expressed himself to the same effect. These great masters of the art had in mind the practice of reckless cross-examination, examination without any definite objective in the vague hope that something unfavorable to the witness would accidentally be disclosed. They cross-examined thoroughly and vigorously when occasion required. It has been said that there is no interrogatory so effectual in detecting guilt as that which is put by a steady and searching eye. A man who is skillful in this respect will keep up a sort of silent cross-examination of a person all the time he is giving evidence for the opposite party. Watch the witness closely; watch every move he makes. Do certain questions "MR.

SERJEANT

BARRISTER'S L I F E

BALLANTINE,

(1882)

SOME

EXPERIENCES

OF

102.

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A

on direct examination cause him to change his expression, to hesitate in answering, to change the tone of his voice? Does he ask to have certain questions repeated? Does he change the form of his answers? An able cross-examiner is a skillful reader of faces and minds. Instead of watching the witness, opposing counsel often devotes his entire attention to making copious notes of all the witness is testifying to. In court, Mr. Horace Avory, afterwards Lord Justice, "never took a note," we are told by his clerk—"a practice which he told me he had learnt from studying Lord Halsbury as an advocate. . . . This gave him an enormous advantage; while others were fumbling with their notes and papers he was alert and listening." 35 If you have an assistant, let him take notes. If you try the case alone, train your memory. If you find it necessary, you may, as the witness proceeds with his testimony, jot down topics for cross-examination. But take as few notes as possible. Watch the witness. Watch the jury. See how they are affected by the testimony. Watch the case. W h a t appears on the surface to be a brilliant piece of cross-examination, conceived and executed on the spur of the moment, is often the result of anxious reflection and painstaking study, investigation, and 31

BIRON, W I T H O U T P R E J U D I C E

[58]

(1936)

104.

preparation before the trial.

T h e humblest lawyer

can conduct the most annihilating and brilliant cross-examination if "he is armed with the right letter, the right newspaper interview, the right document, or the right record of conviction." Many experienced advocates prepare carefully worked out plans for cross-examination, based upon information acquired by them before trial. Particularly is preparation necessary before you undertake the crossexamination of a fair and well qualified expert. If, as the result of study, you are not prepared to meet him on his own ground, let him alone; you will only be biting into granite. T h e first point to keep in mind, therefore, is not to cross-examine blindly or recklessly. T h e poorest kind of cross-examination is to ask a witness to repeat the damaging testimony given. That should never be done unless you have reason to believe that the witness has learned his story by rote. Even in such case you have to proceed so adroitly as to give no indication to the witness of what you are attempting to do. Ordinarily it serves no useful pur pose to ask a witness, " D o you mean to say so and so? Do you realize you are under oath? Is what you have just said as true as the rest of your testimony?" Do not cross-examine to show a bad record affecting credibility unless you have reliable information [59]

on the subject which has been carefully checked up. It may sound incredible, but I have heard counsel ask an apparently reputable witness whether he had ever been convicted of a crime, without knowing whether he had or not. The answer in the negative, given with genuine indignation, destroyed counsel's case. Cruel cross-examination is disastrous to the cause of the attorney who administers it. There is a wide latitude allowed in cross-examination with respect to credibility, but it is a good rule to abstain from all offensive personality and to advance no fact prejudicial to the honor or the reputation of a party or witness unless required by the justice of the cause intrusted to your charge. Where it is essential it must be resorted to without fear or favor. In any event, be particularly careful when you deal with women and children. Do not endeavor to sink a witness too low in the opinion of his judges. There is such a thing as killing a witness too dead. You know, of course, that when you cross-examine on collateral matters you are, as a general rule, bound by the answers given. One of the few exceptions to this rule is that you may prove a prior conviction. As a general rule, cross-examination, except as to credibility, is limited to matters brought out on direct. The court, in its discretion, may at times permit a departure from this rule, but as to

[60]

new matters inquired into on cross-examination you may make the witness your own, within the rule which forbids impeaching the credibility of one's own witness. In this connection it should be noted that the rule that one may not show prior inconsistent statements of his own witness, oral and not under oath, does not apply where it is the adverse party to the action that one calls as his witness. In such cases, all prior inconsistent statements may be shown, such statements being treated as admissions of the party.36 But where one makes the adverse party his own witness, he cannot thereafter impeach him by testimony of bad reputation for veracity.87 For the rule requiring the laying of a proper foundation on cross-examination for impeaching the credibility of an opposing witness (other than a party) by evidence of prior contradictory or inconsistent statements made orally or in writing, see Larkin v. Nassau Electric R. R. Co.,38 and Kay v. Metropolitan Street Ry. Co. 3 9 " RICHARDSON, op. cit. supra note 32, J 590, citing Koester v. Rochester Candy Works, 194 N. Y. 92, 98, 87 N. E. 77, 79 U9°9)"Cross v. Cross, 108 N. Y. 628, 15 N. E. 333 (1888); Benjamin v. Green, 144 N. Y. Supp. 311 (App. Term 1st Dept. 1913); Tryon v. Willbank, 234 App. Div. 335, 255 N. Y. Supp. 171 (4th Dept. 1932). »205 N. Y. 267, 98 N. E. 465 (1912). * 163 N. Y. 447, 57 N. E. 751 (1900).

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The form of the question on cross-examination is generally not important. One form of question, often used, is bad: "If I were to tell you that the fact is so and so, what would you then say?" Coleridge, in the Tichborne case, adopted the course of informing the jury as to the facts by putting questions to the witness beginning with the words, "Should you be surprised to hear that . . .?" Commenting on this practice, Lord Maugham, in his recent book on that famous case said, "Often repeated (especially if in a supercilious tone), this form of question, even if a fair one, is apt to irritate both Judge and jury. It has constantly been discouraged from the Bench." 40 You will plan your attack on cross-examination on the basis of your prior information and on your estimate of the witness. Is he untruthful, is he honestly mistaken, is he careful or reckless in his utterances? Do not make the mistake of regarding all opposing witnesses as perjurers or knaves. The psalmist did not say, "All men are liars," although I have seen him so misquoted. What he did say was, " I said in my haste, 'All men are liars.'" Consider, too, the song of the Lord Chancellor in "Iolanthe": I'll never throw dust in a juryman's eyes, (Said I to myself—said I!) 40

Op. cit. supra note 12, at 217.

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Or hoodwink a judge who is not over-wise (Said I to myself—said II) Or assume that the witnesses summoned in force In Exchequer, Queen's Bench, Common Pleas, or Divorce, Have perjured themselves as a matter of course (Said I to myself—said I!). There is some perjury, to be sure, but for the most part false testimony is due to defective observation, inability to state accurately what was in fact observed, faulty recollection, unconscious partisanship or suggestion, the tendency to exaggerate and to resort to the imagination—matters embraced under the general heading of fallacies of human testimony. Science may at some time perfect a workable lie detector, but until that day arrives we have to be guided by our skill in judging human nature. Do not be misled by the idiosyncrasy of a witness. For example, some witnesses have a habit of asking to have the simplest questions repeated. When that is done only on one or two occasions you may have an indication of a weak spot to be attacked. So with the phrase, "Not that I remember." Skillful crossexaminers regard as significant the tendency of a [63]

witness to introduce irrelevant matters in his answers. A truthful witness generally sticks to the facts he is called to prove. A witness who is lying or hiding something tries to divert the attention of the examiner, or to soothe his own conscience, by introducing something irrelevant. Sometimes it is desirable at the outset of the cross-examination to put the witness in a chastened frame of mind by confronting him with prior contradictory statements sworn to by him. He then loses some of his poise and cocksureness and may recede from prior positive positions taken by him. It is rarely useful to press a witness on the salient points of a case, for whether he is a perjurer or not he has probably prepared himself well on those. Go to incidental matters on which he is not likely to be prepared. Imagination works slowly. There is therefore a great advantage in putting crucial questions suddenly. There is an English case of interest in this connection. It was essential to fix the precise day on which a man and a woman had met. The time sworn to was early in May, the place a garden. She had never walked there with him after that date. "Is there any fruit in the garden?" "Yes." "Were you allowed to pick it?" "Yes; he used to give me some." "What fruit?" "Currants and raspberries." "Ripe?" "Yes." That was enough. The witness was destroyed

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because currants and raspberries are not ripe in that locality until June. Of course, a certain amount of preliminary examination is necessary to distract the attention of the witness. In direct examination you put your questions in logical manner; that is precisely what you do not do on cross-examination. Some attorneys have the habit of confining the witness on cross-examination to what is directly responsive. That is often a mistaken practice. Mr. Justice Darling observes that "it is generally well to indulge a witness against you who desires to talk much; for, when you have with affability heard all that he has to say, he will readily tell you all that you wish to hear." 41 Most lawyers proceed on the theory that, to use an expression of Baron Alderson, "to cross-examine is to examine crossly." All of us have sympathized with the Hatter in Alice in Wonderland who is called to the stand. " 'Give your evidence,' said the King, 'and don't be nervous, or I'll have you executed on the spot.' This did not seem to encourage the witness at all; he kept shifting from one foot to the other, looking uneasily at the Queen, and in his confusion he bit a large piece out of his teacup instead of the bread-and-butter. . . . 'Give your evidence,' the King " SCINTILLAE JURIS ( 1 9 1 4 ) 63.

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repeated angrily, 'or I'll have you executed, whether you're nervous or not.' " Even when lawyers do not bully or browbeat a witness they often assume a rude and offensive tone toward him. Noise is mistaken for energy. A skillful cross-examiner will be careful to ingratiate himself with the witness and as a reward often gets from him what he wants. Thus it was said of Sir John Coleridge, afterwards Lord Chief Justice, "The blustering advocate only made the witness hug his secret closer; under the sun of Coleridge's bland courtesy and silvery tones he unpacked his heart." If you believe a witness to be untruthful, it is important to forbear from indicating by your manner the impression he has made. That will put him on his guard. If lulled into a sense of security, he will under skillful examination run along and involve himself in some irretrievable contradiction. "The more the storm blusters, the more carefully he wraps round him the cloak which a warm sunshine will often induce him to jthrow off." A trained advocate wisely said, "A severe manner may often be used with success toward a witness with whom the jury are inclined mentally to agree, but never against one with whom they sympathize." Lord Maugham has noted that "counsel do not always remember that if they show themselves too [66]

clever as compared with a foolish witness the jury (or the Judge) may make allowances and extend more sympathy and understanding to the tormented than to the tormentor." 42 Always keep your temper unruffled. You may lead the witness to lose his, but hold your own. Encourage a witness to display his partisanship or his flippancy. Poise on the part of a cross-examiner is essential. Facial expression will betray our inward thoughts more than we are ordinarily aware. The jury is watching. If your face shows that an answer hurts, it may count heavily against you. Many a case has been lost because counsel was unable to conceal or to control his exasperation. The test of an able advocate is the way he conducts himself in times of stress, when he is suddenly confronted with something unexpected and the case seems to be going against him. To waver in a storm is to invite disaster; the event calls for boldness, for the utilization of all of the resources of the skillful advocate. "A great pilot can sail even when his canvas is rent; if his ship be dismantled he can yet put in trim what remains of her hull and hold her to her course." Do not quarrel with an insolent witness. An effective way to deal with him is to say, "Mr. X, will you please repeat that answer, using the same tone of " L O R D MAUCHAM, o p . cit. supra n o t e 1 2 , at 3 4 3 .

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voice?" Whatever the fate of the question may be, nothing is more calculated to cause such a witness to crumple up. When you have made your point, stop. The greatest cross-examiners often lose sight of this. A classic instance is furnished by the famous libel action of Whistler v. Ruskin. "Can you tell me," asked Sir John Holker, "how long it took to knock off that nocturne?" "Two days," replied Whistler. "The labor of two days, then, is that for which you ask 200 guineas?" "No," replied Whistler, "I ask it for the knowledge of a lifetime." Now, Sir John could have made his point by asking two simple questions and then stopping. He could have asked, "How long did it take you?" and "What did you charge for it?" Sir John Coleridge, examining a witness, tried to show that his client was compelled to leave a convent for violation of what he claimed to be trivial rules. The mistress of the novices said she once found the plaintiff in the pantry eating strawberries when she ought to have been attending to some duty. The cross-examination proceeded: Coleridge: Eating strawberries, really? Mrs. Kennedy: Yes, sir, she was eating strawberries. Instead of stopping, Sir John continued, "How

[68]

shocking!" (In this country most lawyers would move to strike out that remark; in England they are more sensible.) Mrs. K.: It was forbidden, sir. This was bad enough, but Sir John seemed to have lost all caution. Coleridge: And did you, Mrs. Kennedy, really consider there was any harm in that? Mrs. K.: No, sir, not in itself any more harm than there was any harm in eating an apple, but you know, sir, the mischief that came from that. This shows how unwise it is to ask for the operation of a person's mind on cross-examination. Many an unwary lawyer has had an avalanche brought down on him when he asked a witness: "Why did you do that?" or "What caused you to say this?" Questions in that form should never be asked unless you are sure the witness can give no satisfactory answer. My observation has been that he is the most skillful cross-examiner who knows enough to stop when he has extracted a damaging admission. He uses it in his summation. The unskillful examiner is not content with this. He keeps pressing the witness until the latter becomes conscious of his predicament, realizes his blunder and the effect of what he has said, and wriggles off the hook. It is always effec[69]

tive to close your cross-examination with a triumph. There is a type of examiner who is never satisfied until as the result of his prolonged questioning he, rather than the witness, is obliged to withdraw in discomfiture. Where a witness has testified to a matter the falsity of which you can establish, it is advisable to lead him on so that he will not be able later to withdraw or give some other explanation. A swears that X sought to bribe him during an election to vote for a candidate. You ascertain that X is available to testify for you; that at the time of the alleged occurrence he was not even in the city. It is proper to lead the witness on by a series of questions to show that he had not mistaken the man. Unless you pin him down, when X appears he may say he had mistaken his name. Of course, unless you have the testimony to contradict the witness, every additional question you put to him about X tends to strengthen his story. It is unwise to ask a witness blindly if he has ever made a written statement. Often, to your confusion, the paper will be produced, and if you do not allow it to go in evidence a bad impression may be created. If you have or know of the existence of a contradictory statement in writing, do not make the mistake of showing the witness the letter, reading the [70]

contradictory portion and asking him what he has to say about it. A nimble witness may have a ready explanation. Ask him a series of questions tending to emphasize the statement he made on the stand, which you are prepared to show is contradicted by his own writing. Then have him identify the writing, read it, and ask him what he has to say. But be sure that the contradictory statement is not capable of reasonable explanation. There is no hard and fast rule about this. An able trial lawyer writes me that his practice is to fix the statement of the witness orally so as to emphasize its opposition to the writing, and then have him identify the latter, put it in evidence, and leave it alone. Let the other side tTy to offer an explanation. I prefer the former method as tending to be more fair to the witness and at the same time not affording him the opportunity of thinking up some fictitious explanation. In this connection it is important that you never put an unfair construction on what a witness has said. The jury will resent it; the judge himself will often interfere to protect the witness. Do not press for a yes or no answer where it is unfair to expect a categorical answer. Many lawyers do not know how to frame questions on cross-examination concerning testimony [71]

given by the witness on a prior trial or on an examination before trial. T h e proper form is: " O n your examination before trial (or at a former trial), at page

, were you asked the following questions

and did you give the following answers?" Serjeant Ballantine said, ". . . T h e only means known to English law by which testimony can be sifted is cross-examination. By this agent, if skilfully used, falsehood ought to be exposed, and exaggerated statements reduced to their true dimensions. A n unskilful use of it, on the contrary, has a tendency to uphold rather than destroy. If the principles upon which cross-examination ought to be founded are not understood and acted upon, it is worse than useless, and it becomes an instrument against its employer." 4 3 Sometimes a bungling cross-examination actually brings out new matter helpful to the opponent, which he overlooked or neglected to inquire into. O n e of our ablest trial lawyers wrote some years ago that it often happens that a cross-examiner must "with strong bare hands grapple with the onrushing forces of perjury, partisanship or cunning. T o repel this assault requires skill of the highest and most complex character—a skill which manifests itself differently with every lawyer, with every case, indeed 48

Op. cit. supra note 34, at 101.

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with every witness." The whole subject may be summed up in the stoiy told of a great artist who, on being asked what he mixed with his colors to produce his brilliant effects, replied, "Brains!" So on cross-examination you must use your brains, your judgment, and your knowledge of human nature. R E D I R E C T

E X A M I N A T I O N

As has already been indicated, the purpose of the redirect examination is to tie together the broken threads of the testimony of the witness and to restore his credit if it has been impaired on cross* examination. Redirect examination has been likened to the putting of Humpty-Dumpty together again. Sir Frank Lockwood told a story illustrating how not to examine on redirect. A witness was asked on crossexamination whether he had ever been convicted of perjury. He answered yes, whereupon the cross-examiner promptly and properly sat down. On redirect, counsel said, "Yes, it is true you have been convicted of perjury. But tell me: Have you not on many other occasions been accused of perjury, and been acquitted?" 44 44

B I R R E L L , S I R F R A N K LOCKWOOD, A B I O G R A P H I C A L S K E T C H

(1898)

1 4 5 ; s e e a l s o P A R R Y , T H E S E V E N L A M P S OF ADVOCACY

( • 9 2 6 ) 89.

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Redirect examination does not mean repetition of testimony previously given or the asking of questions which should have been asked on direct examination but were overlooked. Courts are apt to be liberal in this respect, however. If the testimony of the witness has not been broken down in any material respect on cross-examination, the good trial lawyer will ask no questions on redirect. In any event, the redirect examination should be as brief as possible; otherwise the danger of recross-examination is increased. T h e stronger your case the less occasion there will be for any redirect examination. T h e recross-examination is generally limited to matters brought out on redirect, but the court will, as a rule, permit counsel on recross to inquire into matters overlooked on the cross-examination proper. 1[ REBUTTAL After the defendant has closed his case the plaintiff offers evidence in rebuttal. Rebuttal does not mean repetition. Strictly speaking, the proper purpose of rebuttal is to offer evidence in denial of some affirmative fact which the answering party has endeavored to prove. This does not mean evidence which merely corroborates the testimony given by the party's own witnesses. O n his direct case, the party must bring out the strength of his proof in

[74]

the first instance. H e cannot withhold a part of his direct proof for rebuttal. " T h e party holding the affirmative is bound to introduce all the evidence on his side before he closes. He must exhaust all his testimony in support of the issues on his side before the testimony on the opposite side has been heard." 46 T h e rule, however, is not an inflexible one. In the exercise of discretion the court may permit a party at any stage of the case to introduce evidence which he has omitted by inadvertence as part of his direct case. It may permit a witness to be recalled for further cross-examination. T h e courts in the exercise of discretion do not hold a party strictly to rebuttal, but you have no right to count on any such liberality in ruling, and if you withhold testimony for rebuttal which should have been part of your direct case, you may find yourself out in the cold. Rebuttal may be utilized for the purpose of rehabilitating a witness whose testimony has been impeached. This you may do by evidence of good reputation for veracity if the reputation of your witness for veracity has been attacked, or, in an unusual case, if his testimony has been attacked as a recent fabrication, proof

of prior consistent

statements

made at a time when the witness had no motive to falsify may be offered to repel such imputation. This "Marshall v. Davies, 78 N. Y . 414, 420 (1879).

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kind of evidence may never be resorted to as a pretext for getting in self-serving declarations. Rebuttal may also be used in appropriate ways to impeach the opponent's witnesses by proof of bad reputation for veracity, prior inconsistent statements, or prior conviction. The important thing is to make a note of testimony given by an opponent's witness covering new facts, which should properly be answered in rebuttal. An attorney is often embarrassed when his opponent in summation calls attention to some testimony which the former failed to rebut. Even at that stage of the case the court, if it feels that advantage is being taken of what was solely an oversight, may permit you to reopen your case and offer the appropriate rebutting testimony. That is discretionary, however; you have no right to rely upon it and you have no cause for complaint if the court declines to exercise its discretion in your favor. |[ M O T I O N TO D I S M I S S T H E

COMPLAINT

A motion to dismiss the complaint may be made at the close of the plaintiff's case and at the close of the entire case. Such a motion should not be made in a pro forma way or unless there is some basis for it. I have often heard attorneys say, "I make the regular motion to dismiss," or "I make the pro form a

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motion to dismiss." My response has been, " I make the regular or pro form a ruling—motion denied." Only a few weeks ago an attorney for the defendant said, " I move to dismiss the complaint on the ground that the plaintiff has failed to make out a cause of action against the defendant. Exception." T o the amusement of those in the court room, including the jury, he did not wait for me to make a ruling before he took his exception. Incidentally, he lost his case. If you desire to argue the motion to dismiss, ask the court for permission to be heard. Such argument had better be in the absence of the jury, unless the court otherwise directs. The procedure here outlined is that which should be substantially followed on motions to dismiss a counterclaim or to strike out a separate defense. ([MOTIONS FOR THE DIRECTION OF A VERDICT The practice relating to motions for the direction of a verdict is a subject concerning which there is a good deal of misunderstanding at the Bar. A motion for the direction of a verdict should not be made if you believe there is any question of fact or of credibility involved unless you are really willing to have the court decide those questions itself. [77]

If you move for the direction of a verdict and your opponent joins in that motion and you remain silent, that is tantamount to saying either that you do not believe there is a question of fact, or that, if there is, you do not desire to have it submitted to the jury. T h e judge will, in that event, either direct a verdict in the presence of the jury or reserve decision and, on the stipulation of the parties, thereafter direct a verdict in the absence of the jury with the same force and effect as if a jury were present. Even if you move for the direction of a verdict and your opponent joins in that motion you may withdraw your motion before the court decides and ask to go to the jury on the questions of fact in the case. If your opponent moves for the direction of a verdict you should not remain silent. If you do, the court may grant your opponent's motion. True, in such case you may at once ask to go to the jury generally or on certain specific questions, b u t you would be in an awkward position, particularly if the jury heard the court's disposition. T h e practice generally adopted by judges is not to grant what may be termed snap directions. W h e n one side moves for the direction of a verdict the judge usually asks the other side, "Do you join in that motion?" Even when both sides move for a [7g]

direction the court will generally ask, "Does either side desire any question of fact submitted to the jury? Do the parties stipulate that the court may direct a verdict in the absence of a jury with the same force and effect as though a jury were present?" The rule is that if a plaintiff fails "to move for the direction of a verdict at the end of the case he is in the same position as a defendant who fails to make a similar motion; he concedes there is a question of fact to go to the jury . . ," 46 Under section 457-a of the Civil Practice Act the judge "may direct a verdict when he would set aside a contrary verdict as against the weight of the evidence." The validity of this section has, in effect, been upheld by the Court of Appeals.47 I have resorted to it a number of times in commercial cases and have been upheld on appeal, but without opinion. The same course has been followed by many judges. Great care should, however, be exercised in invoking this statute. Where the Appellate Division has set aside a verdict as against the weight of the evidence, and substantially the same evidence is adduced on the retrial, I believe there is a proper basis for resorting to section 457-a. "Hirsch v. Schwartz & Cohn, 256 N. Y . 7, 1 1 , 175 N. E .

353. 354 ( l 93 1 )"Bank of United States v. Manheim, 264 N. Y . 45, 189 N. E. 776 (1934).

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|[SPECIAL VERDICTS

In certain cases where close questions of law are presented, the court, upon its own initiative or the request of counsel, may in effect reserve decision on the question of law, pending the return of a special verdict on the facts by the jury. Certain specific questions of fact are submitted in writing to the jury, and they are generally put in such form that they may be answered in writing by either yes or no, or, where the damage is in issue, by the fixing of an amount. This form of verdict is being resorted to more and more frequently. It has several advantages: First, it gives the court an opportunity thoroughly to study the questions of law involved. Second, the findings of the jury on the facts may be decisive and make it unnecessary to pass on the law. Third, on appeal, the higher court, if it decides to reverse, is in a position to direct a verdict rather than to remit the case for a new trial. Care should be taken, however, to have all the material questions of fact which are in issue submitted to the jury. If there is any issue of fact which is not specifically passed upon by the jury it may be decided by the court. To put this another way, all questions of fact [80]

not passed upon by the jury may, unless otherwise indicated, be deemed to have been found in favor of the successful party. S U M M A T I O N OF C O U N S E L

The party who has the right to open to the jury has the right to close, so it is usually the defendant who sums up first. The court generally discusses with counsel the time to be allowed for this purpose so that it may be divided equally between them. It is entirely proper to thank the jury for the attention they gave to the case. Courtesy is not obsequiousness. It is unnecessary to thank the judge for his attention; that is part of his daily routine. It is well, also, to explain to the jury that under our practice the defendant has no right to reply to the plaintiff's summation, and that the failure to answer the arguments the plaintiff makes is not by any means a concession of their soundness. W e have gotten away from florid oratory and flatulent rhetoric in summations. Particularly is this type of summation unwise for an attorney representing a defendant. Nothing is so deadly as well directed ridicule, and your opponent may readily turn your flowery metaphors to his own advantage. A plaintiff who closes may be somewhat freer in this regard. For an example of how even the most emi-

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nent counsel may be so carried away by his enthusiasm as to make a rather absurd appeal, see Denman's concluding remarks in his address in defense of Queen Caroline. 48

But while florid oratory has

tended to disappear, true eloquence is still of supreme importance. Juries are not likely to be stirred by tall talking or word spinning. They are stirred by the manner and the conduct of counsel who addresses them, his earnestness, his sincerity, the richness and the flexibility of his voice, and the dignity of his bearing and demeanor. Never write out your summation. If you have to, jot down the headings. Put feeling into what you say. You can hardly expect to convince others unless you appear to be convinced yourself; you cannot expect to move others unless you are moved yourself. Look up; carry yourself with conviction. Show that you are confident of the justice of your cause. Talk eye to eye and heart to heart with the jury. Scarlett, when asked whether he had any special secret by which he got his verdicts, replied that he thought his success was mainly due to his habit of seldom addressing the jury collectively, but of selecting one or two of them —generally one, and by no means always the foreman—with whom he reasoned on the subject as best 48

MANSON, op. Cit. supra note 6, 103.

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he could, placing himself in mental communication with him, and going on till he appeared to have convinced him. "Brougham," he added, "at one time detected my process and imitated me as well as he could, but somehow or other he always hit on the wrong man." 49 Do not take Scarlett literally. He was, perhaps, telling a story at the expense of his great rival. The practice of singling out jurors by name and addressing yourself to them individually is bad. Scarlett certainly never meant that. If you have the insight to detect, as you proceed with your argument, that you leave some juror? cold and do not seem to make a contact with them, you will, of course, try to win them over. A neophyte, especially, should not rely on attempting to convince the man he believes to be the master mind on the jury. The most important part of speaking is to make yourself understood. A procession of verbiage will not accomplish this. State the facts in the simplest, clearest form. Be scrupulously fair in your statement of the testimony. Inaccuracy in referring to testimony is not cured by telling the jury that it is their recollection which governs. Never oppose a strong point in argument with a weak one. Erskine said, "When a convincing answer cannot be found to an "Quoted in MANSON, op. cit. supra note 6, 76.

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objection, those who understand controversy never give strength to it by a weak one." Plan to throw your strength on the outstanding features of the case instead of frittering it away on details. Look for the heel of Achilles in your opponent's case and keep thrusting at it. Cultivate a sense of proportion. The things Lord Russell stressed most, his biographer tells us, were accuracy, lucidity, brevity, and keeping to the point. Vituperative language in a summation is seldom effective. Avoid calling a witness a liar. Do not call a witness a perjurer save under the most compelling circumstances. Do not charge your opponent with being convinced of the unrighteousness of his client's cause. Be courteous in referring to your opponent. You need not refer to his great prowess as a lawyer or to your inferiority in that respect. The jury has formed its own opinion; in any event they will not think you mean what you say. Be careful of indulging in an ironical vein. The story is told of a case in which Bowen appeared for the Crown. He was prosecuting a case of burglary, tried with a Welsh jury. It was urged for the defense that the prisoner was in the habit of walking on the housetops at midnight and had merely taken off his boots and dropped into the house out of curiosity. In summing up, Bowen said to the jury, "If you [84]

believe that the prisoner considers the housetops the proper place for an evening stroll and that the desire to inspect the inside of the houses was but a natural and excusable curiosity, you will acquit him and will approve his conduct in showing so much consideration as to take off his boots for fear of disturbing the sleepers." Well, the irony was unmarked. T h e jury took him seriously and acquitted the prisoner. Never tell the jury you would not have taken the case unless you were convinced that your client was right. Not only is this practice condemned by the Canons of Ethics of the American Bar Association (Canon 15), but the jury is not interested in your opinion.

If it is necessary to put into words your

confidence in the integrity of your client's case, then, indeed, is your case a weak one. "They likewise are arrogant," says Quintilian, "who are peremptory in asserting the goodness of their case and that if it were not such they would not have undertaken it. T h e judges, indeed, cannot bear to hear one presuming to exercise their function." Do not interrupt your opponent to make trivial objections to what he says in summation. If any dispute arises concerning any item of the testimony you will, of course, give your version, and you may also at the conclusion of the judge's charge request him to charge the jury that they may have the stenog-

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rapher read them any portion of the testimony they desire. Be extremely careful about referring to the law applicable to your case. Do not do so unless it is essential to your argument. If you do, always tell the jury that what you say is subject to the charge of the court. In that connection do not refer to the presiding judge as one of the ablest jurists adorning our Bench. T h e jury will observe the figurative wink of the court. Nothing is more likely to annoy a judge than fulsome adulation. It will be of no avail to you if you should be unfortunate enough to misstate the law. You may expect an interruption from the court or a reference to your summation in the charge that will be devastating in its effect. Never make the mistake of doing what I have observed some defendants' counsel do on summation; that is, make an open play for a disagreement, urging that if there are jurors in disagreement with their colleagues they should not surrender their convictions. That, in a way, is tantamount to an admission of defeat. Besides, the court is likely to deal with this in the way Lord Cockburn treated it in his charge to the jury in the celebrated Tichborne case.60 Courts are likely to be extremely liberal in the latitude allowed to an attorney in summation. Criti" V E E D E R , LEGAL MASTERPIECES ( 1 9 0 3 )

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584.

cism has been made that this liberality is abused, that counsel resort to the Serjeant Buzfuz type of oratory consisting of nine-tenths prejudice and onetenth fact. W e are all familiar with the fervid appeal on behalf of the client "to an enlightened, a highminded, a right-feeling, a conscientious, a dispassionate, a sympathetic, a contemplative jury of her civilized countrymen." There are legal jugglers who in summation attempt to throw mists before the eyes of the jury. I find, however, that such tactics in summation act as a boomerang. Juries today are not so easily hoodwinked. The mists are generally dispelled. A judge resents an unfair summation and even in a jurisdiction where it is not the practice for the court to comment on the evidence finds some legitimate way of offsetting it in his charge. The end never justifies the means in the trial of a case. Resort to chicanery, to deceit, to unfair and improper tactics, is never defensible. I confess to a liking for a robust rather than an anemic summation. After all, a trial is something more than a pink tea. A trial, it has been aptly said, "is not a duel of cleverness in which the lawyers play the leading roles and at the end of which the judge or jury awards the prize to the abler man." The most telling factor in a case is what has been graphically [87]

termed "the towering strength of facts." Nevertheless, however much we deplore it, under our present system the trial of a case at certain stages does tend to develop into a battle—of wits, to be sure, but a battle nevertheless. It is all very well to talk of trying your case on a high intellectual plane, but that plane may be so high that you will soar over the heads of the jurors who are the triers of the facts. You should, on the other hand, avoid a speech that underestimates the intellectual level of the jury, for it will be so much wasted effort. Nothing can take the place of a logical argument directed to reason and common sense, but sometimes that argument, to be effective, must be clothed with a warmth and a feeling calculated to appeal to the individuals addressed. There are elements of drama in most cases. Do not sum up in a cold or lackadaisical fashion. Put your heart into it. The jury, yes, the judge, too, likes a fighter; that is, one who knows when and how to fight. The occasion, of course, should determine the methods to be employed in summation. There are cases in which the display of intense feeling and emotion is entirely justified. Above all, be natural. The jury quickly scents and resents artificiality of any kind, and this applies to humor as well as to pathos.

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It was said of Rufus Choate that "his addresses to the jury were singularly impassioned; every muscle of his frame quivered with emotion; the perspiration stood in drops even upon the hair of his head. Yet he was always dignified and conciliatory, as if speaking to friends." 51 On the other hand, Scarlett had a different style of summation. One of his biographers tells us that no one ever saw him make any physical exertion for his client. His speeches never betrayed the least mark of effort. His style was simple. From the moment he rose to address the jury he looked at them in a "how-do-you-do" manner, as if he had been on particular terms of intimacy with them all his life. He smiled at the jury, talking all the while as though he were engaged in a friendly conversation. Do not worry if you are nervous in the course of your summation. The greatest trial lawyers admit that they have never succeeded in overcoming this feeling. Indeed, Lord Russell, one of the greatest English advocates of all time, is reported to have said that a speaker must be nervous to produce his best, and that an audience is much more sympathetic to one who approaches it nervously and who by degrees in its sight and hearing loses his constraint N

I B R O W N , T H F . L I F E AND W R I T I N G S OF R U F U S

(1862)

CHOATE

281.

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under the influence of his own enthusiasm and its encouragement. Avoid unnecessary repetition in your summation. A learned barrister not famed for his brevity had for some time been enforcing his arguments before a jury.

Mr.

Justice

Wightman,

interposing,

said,

"Mr. Blank, you have stated that before." "Have I, my Lord?" said the barrister, " I quite forgot it." "Don't apologize, Mr. Blank," was the answer; "it was a very long time ago." T h e length of your summation will necessarily depend upon the nature of the case; but never weary your jury. Leave them something to find out for themselves. Stanley Baldwin, in a stimulating address on " T h e Classics," points out that the ancients "did not over-elaborate their thought, being content to leave something to the mental processes of their readers." 62 T o illustrate, he selects Homer's wellknown description of Helen. " W h y do we all know about the beauty of Argive Helen? Not because Homer gave us a catalogue of her charms with exhaustive precision, but just because he gave a hint and left it to us. I think he says no more than that, as one day she passed upon the walls, the elders said it was no wonder that for such loveliness men should die and cities should be sacked. Her loveliness is left 62

ON ENGLAND ( 1 9 3 3 )

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87.

to each of us to envisage as we will, and thus it is that it lives afresh in a myriad forms, newborn throughout the centuries in each man's heart." 83 ([THE JUDGE'S CHARGE, E X C E P T I O N S , AND REQUESTS TO CHARGE T h e judge's charge may, roughly speaking, be divided into three parts: ( 1 ) a statement of the nature of the action, the contentions of the respective parties, and a brief outline of the testimony on both sides; (2) the rules of law applicable generally to civil cases, the respective functions of court and jury, the tests to be applied in passing on weight of testimony, what is meant by burden of proof, interested witnesses, false testimony with respect to a material fact, and the like; (3) the law especially applicable to the case under consideration and the form of the verdict to be rendered by the jury. The order in which the charge is given and the emphasis placed on the subjects outlined depend on the individual judge and on the nature of the case. Some judges, for example, barely refer to the testimony; others outline the testimony on both sides. The trial memorandum which you hand up to the court should have covered the law of the case as you saw it when you prepared for trial. The trial, as " I bid. [ 9 1 ]

it developed, may have raised other legal questions. If novel or difficult questions of law are presented you should hand up requests to charge so as to afford the judge an opportunity of going over them before he commences his charge to the jury. When you make a request to charge on a proposition of law it would be well to cite a case which supports your view. Do not submit requests to charge on elementary matters. Make the requests as few as possible. Do not include more than one proposition in a request. If you submit requests to charge on matters of evidence, the only purpose served is to call the attention of the court to the evidence which you consider vital. The court will ordinarily refuse to charge on matters of evidence. Do not press such requests. It never helps to have the court refuse requests to charge. Do not interrupt the court in his charge. The only exception to this rule should be when an error has been made by inadvertence concerning some fact not in dispute. Ordinarily it is wiser, even in such a case, to wait until the conclusion of the charge to ask that the correction be made. If you are aggrieved by any portion of the judge's charge it is your duty, when the judge finishes, to take exception thereto. The defendant generally is the first called upon to state his exceptions and to [ 9 2 ]

make requests to charge. As the judge proceeds with his charge you will make careful note of those portions which you believe are objectionable. Try to make these notes as full and as accurate as possible in order that you may not misquote or misstate the charge. Before the charge, prepare a list of the different propositions of law you believe should be covered and check the items as the charge proceeds. Do not interpose trivial exceptions. Do not ask for a repetition of what has already been charged. If the charge as a whole is fair to your side of the case and presents the law substantially as you believe it to be, do not be hypercritical. Rest on the charge. Additional requests to charge in such case may lead to embarrassment. Many a case has been lost on appeal because an attorney has pressed for charges on close and doubtful questions of law. Have confidence in the court. The judge undoubtedly has had in mind the fine legal distinctions that occur to you but has decided it would be unwise to charge on them because they would in all probability not affect the result and might lead to reversible error. A judge, by his refusal to charge as requested, has often saved the successful attorney from reversal on appeal. Sometimes a request to charge is made by your opponent, and the judge is a little hesitant about it. If you really believe that the request is proper, say

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promptly, " I have no objection." If you think the request is improper, the better practice is to remain silent and let the judge pass upon it unless he specifically asks for an expression of your view. If his ruling is adverse, take your exception. If the judge refuses one of your own requests to charge you should likewise take an exception. Do not argue about requests to charge unless the court asks for argument. This is rarely done. D o not ordinarily ask the court to charge in the language of opinions rendered by the higher courts. That practice is frowned upon by the higher courts themselves. T h e opinion from which you are reading may set forth perfectly good law, but it may not be applicable to your case or may have already been charged by the trial court in simpler and more understandable form. T h e request to charge which more frequently than any other is made in improper form is that dealing with the failure to call a witness. T h e charge is often made that "if a party, having under his control a witness who is in a position to testify concerning a material fact, fails without explanation to call that witness, the jury may infer, although it is not bound to do so, that the testimony of the witness if called would have been unfavorable to the party failing to call him." T h e cases on this point are collected in

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Perlman v. Shanck,64 in which the court held that if any inference at all is warranted by the jury from the failure of a party to call a witness, "they may infer that the witness would not have controverted material testimony, which he was in a position to corroborate or controvert, adverse to the party who might reasonably have been expected to call him if the testimony of the witness would have been favorable to him, or would not have corroborated material testimony for the party which he was in a position to corroborate or controvert; and that, therefore, the jury would be warranted in accepting the testimony which was adverse to the party who thus might have controverted it if he could, and in determining the issues, might take such testimony most strongly against such party." A party's unexplained failure to testify when he could be a useful and natural witness is to be judged by the same standards of inference as apply to an ordinary witness.05 While the omission of the de" 1 9 2 App. Div. 179, 182 N. Y . Supp. 767 (1st Dept. 1920). " 1 W I C M O R E , op. cit. supra note 1, J 289; Attorney General v. Pelletier, 240 Mass. 264, 134 N. E. 407 (1922); Wylde v. Northern R. R., 53 N. Y . 156 ( 1 8 7 3 ) ; Dowling v. Hastings, 21 J N. Y . 199, 105 N. E. 194 ( 1 9 1 4 ) ; Isquith v. Isquith, 229 App. Div. 555, 242 N. Y . Supp. 383 (2d Dept. 1930); Polachek v. N. Y . Life Ins. Co., 147 Misc. 16, 22, 263 N. Y . Supp. 230, 238 (Sup. Ct. 1 9 3 3 ) .

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fendant to testify is not evidence against him of the existence of any fact, "it is cause for taking such testimony as is in the case—and which, if untrue, he might have contradicted or explained—" most strongly against him.50 After the charge has been completed and the case gone to the jury, you or your representative should remain in the court room or within call. The jury may have some questions to ask and these have to be disposed of by the court in the presence of representatives of both sides. Pursuant to the authority granted by a constitutional amendment adopted in New York, the Legislature in 1937 enacted section 463 a of the Civil Practice Act to provide that a verdict may be rendered by not less than five-sixths of the jurors in any civil case. Similar legislation permitting verdicts by less than unanimous agreement in civil cases has been enacted in more than a third of the states. Under the rule that unanimous verdicts are not required in civil cases, it has become the practice in charging the jury to inform them that, after full deliberation, as soon as five-sixths of the jurors (ordinarily ten in number) have reached an agree" See Schwier v. New York Central & H. R. R. R., 90 N. Y . 558, 564 (1882); Bleecker v. Johnston, 69 N. Y. 309, 3 1 1

(1877). [96]

ment, that constitutes the verdict of the jury and may be rendered as such. If this has been overlooked in the charge, the judge's attention should be called to it. If the verdict of the jury is adverse you have a right to request that the jury be polled; that is, that each juror be asked to state whether the verdict as announced by the foreman is his verdict. It is essential to have the jury polled in every civil case in order to determine whether the verdict has been agreed to by the requisite number of jurors. If the form of the verdict is incorrect or contrary to the court's instructions, the jury may be sent back to reconsider, or, if the error is merely technical, the verdict is entered in correct form by the court.