I imagine every trial lawyer wanted to say that to an expert witness on cross examination at some stage in every trial. What happens when the Judge says that to your expert witness in front of a jury? This was our experience last month in Kings County before Judge Francois Rivera in SETH PARISER v. AG MEDALLION MANAGEMENT CORP. et. al. (Index No.: 1816/12).
In the course of the direct examination of the defendant’s Biomechanical Expert, Dr. Robert Fijan, the Court interrupted the questioning to inquire whether the witness agreed that the plaintiff, who claimed bilateral SLAP tears of the labrum, did, in fact, have the condition complained about.
THE COURT: Let’s keep it simple. Do you have an opinion on whether or not the plaintiff has SLAP tears on both shoulders?
THE WITNESS: From what I’ve reviewed he had labrum tears. I’m not sure that it was a SLAP tear or not on the left shoulder, but it’s, at least, a similar type of tear of the labrum.
THE COURT: I have to take your answer and filter it and figure out if it’s a yes or no, and I hate doing that. So let’s break it up. Do you believe plaintiff has a SLAP tear on any shoulder?
THE WITNESS: That he ultimately had one?
THE COURT: I didn’t use the word ultimately. Jesus Christ. Give me a straight answer.
Okay, before you gave your report did you have an opinion that the plaintiff had a SLAP tear on any shoulder?
THE WITNESS: Can I ask a question?
THE COURT: No.
THE WITNESS: You’re not talking about related to the accident, you’re just saying did he have one, so yes.
THE COURT: This is not a trick. What’s so hard about my question?
THE WITNESS: I was just trying to clarify that.
THE COURT: If you stop trying to clarify and just answer direct questions you won’t be here for three or four days. So, first, does plaintiff have a SLAP tear on either shoulder?
THE WITNESS: I believe so.
THE COURT: Yes? No? I don’t know?
THE WITNESS: Yes.
THE COURT: Which shoulder do you have no disagreement he has a SLAP tear on?
THE WITNESS: He had one on the right shoulder.
THE COURT: Okay. Do you believe that he had a SLAP tear on the left shoulder?
THE WITNESS: I’m not sure.
THE COURT: All right. So then you can’t give an opinion on what his injury is on the left shoulder.
THE WITNESS: I didn’t say that.
THE COURT: Did he have an injury of the left shoulder?
THE WITNESS: Yes.
THE COURT: — that you have no confusion about?
THE WITNESS: Sure.
THE COURT: What injury did he have?
THE WITNESS: He had a tear of the labrum of the left shoulder.
The previous day, the Court allowed a voir dire on the qualifications of this witness and also asked the following:
THE COURT: I’m interested in perhaps if he’s taken orthopedics.
Q Have you taken any orthopedic courses, Doctor?
A Okay, courses, or have I —
THE COURT: Courses, that’s a question. Wasn’t the word “course” — did I hear the word “course”?
MS. SCANLAN: Yes, Your Honor.
THE COURT: That’s the question.
A Have not taken orthopedic courses?
Q You are an engineer, correct?
A I’m a mechanical engineer and a biomechanical engineer, right.
MS. SCANLAN: Your Honor, at this time I renew my application before we began his testimony. Shall I state it?
THE COURT: No. I’m just thinking. No classes in anatomy, no classes in medicine, no classes in orthopedic surgery, no classes in epidemiology, no classes in anatomy. Any classes in neurology?
THE WITNESS: No classes in neurology, no, I’ve — in these fields I’ve only done research.
THE COURT: Hematology?
THE WITNESS: No.
THE COURT: Know anything about chiropractic work?
THE WITNESS: I don’t know what you mean, anything about it. Obviously, I know something about it.
THE COURT: Never studied it?
THE WITNESS: Correct.
THE COURT: Wow. What’s your objection?
MS. SCANLAN: My objection, Your Honor, is he’s not qualified to testify as to mechanics of an injury without those qualifications, and I renew my application I made earlier.
THE COURT: All right. Ruling of the court is you have to ask foundational questions that permits him to offer an opinion on biomechanical injury, and I haven’t heard any yet so feel free to try. Please be seated.
Appellate Courts in the area of Criminal Law have repeatedly ruled on the role of a trial judge on numerous occasions. “The proper role of a Trial Justice is “neither that of automaton nor advocate” (People v. Yut Wai Tom, 53 N.Y.2d 44, 56, 439 N.Y.S.2d 896, 422 N.E.2d 556). A Justice is generally not precluded from taking an active role in the truth-seeking process (People v. Jamison, 47 N.Y.2d 882, 883, 419 N.Y.S.2d 472, 393 N.E.2d 467) and indeed, may take the initiative to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial (see, People v. Watts, 159 A.D.2d 740, 553 N.Y.S.2d 213; People v. Cooper, 96 A.D.2d 866, 465 N.Y.S.2d 755). However, this power is one that should be exercised sparingly (People v. Yut Wai Tom, 53 N.Y.2d 44, supra, at 57, 439 N.Y.S.2d 896, 422 N.E.2d 556), and must be properly circumscribed so as not to result in the court taking an adversarial position (People v. Cooper, supra; People v. Tucker, 89 A.D.2d 153, 455 N.Y.S.2d 1). While the court may pose appropriate questions (People v. Moulton, 43 N.Y.2d 944, 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243), it has been recognized that a Justice’s examination of witnesses “carries with it so many risks of unfairness that it should be a rare instance when the court, rather than counsel, examines a witness” (People v. Yut Wai Tom, supra, at 57, 439 N.Y.S.2d 896, 422 N.E.2d 556). Most importantly, when choosing to pose questions, a Justice must not do so “in a manner from which a jury will gain the impression of [the] existence of an opinion on the part of the court as to the credibility of the testimony of any witness or the merits of any issue in the case” (People v. Moulton, 43 N.Y.2d 944, supra, at 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243). People v. Melendez, 227 A.D.2d 646, 647, 643 N.Y.S.2d 607, 607-09 (1996)”
What do you do as a trial lawyer in these circumstances? Obviously you need to protect the record, but that does not help you in front of the jury. When the Court asks a question in a certain manner or is frustrated with the response from your witness, the effect on the jury is palpable. Your witness, who you spent days preparing, can be shot down before he has a chance to give an opinion. My advice is to press on, lay the proper foundation and ask your questions as planned. As you can see from the attached transcript, Dr. Fijan was allowed to give his opinion and ultimate conclusion. How the jury felt about the comments and questioning from the Trial Court is unknown. In the end, it is for the Appellate Division to decide whether the inquiry was proper.