The judge says “Counselor, call your next witness.”
The plaintiffs attorney stands up and says “At this time we call Dr. Jones to the witness stand.”
The defense attorney jumps up and yells “Your Honor, I object to this witness testifying. We only got notified last night this medical expert would be testifying today.”
The judge says “Counselors, step up to the bench.”
Now, what should have been a simple matter of putting this medical expert on the witness stand, now becomes a legal battle to determine whether the defense had notice of this particular witness.
The courts in New York long ago did away with trial by ambush.
This used to happen in the early days. Lawyers would not notify their adversary in a timely fashion that they were bringing a witness, and then the opposing attorney would have to scramble in an attempt to try and cross-examine this witness effectively.
In New York, in civil lawsuits involving car accident cases, medical malpractice cases and wrongful death cases, we are required to notify the defense which witnesses we are bringing in to testify. This gives them an opportunity to prepare for cross-examination.
In medical malpractice cases in NY, even though we must notify the defense that we are bringing in a medical expert and explain in detail what this witness will testify about, we do not provide the name of our expert.
Instead, we are required to provide our expert's qualifications.
Ironically, there is computer software available that every experienced attorney uses to track down and identify these medical experts. Even though we do not provide the name of our expert, simply plugging into this computer software where the doctor went to medical school, where he did his residency training and what state he is licensed in we can often narrow down with precision exactly which doctor will be testifying as an expert for the other side.
Again, the entire point of notifying your opponent of who will be coming in is to allow them the opportunity to dig up any dirt they can as well as prepare for cross examination.
There are some cases where a rebuttal witnesses is needed to discuss an issue that has come up during the course of trial. In that instance, there may be insufficient time to properly notify the defense that we are bringing in a specific witness to rebut a particular issue that was brought up by another witness.
In those cases, the judge will want to know:
- when we contacted the expert,
- when the expert agreed to testify, and
- why didn't we notify the other side earlier.
Depending upon those answers and whether or not the judge is satisfied with those answers, will determine what his next course of action will be.
The judge has a number of options in this scenario.
The judge will want to know how this new witness's testimony is going to rebut a specific issue that arose in the case. If this was testimony that has already been explored through other witnesses, it's quite possible the judge will prevent this witness from testifying. Legally, that means he would preclude this witness from taking the witness stand and giving any testimony.
On the other hand, the judge may determine that the delay in notifying your adversary was harmless and will allow this witness to testify.
Another option available is to allow the witness to testify subject to connection.
What that means is that the judge will wait to see if there is a logical connection between what this witness says and whatever issue arose earlier that prompted the attorney to bring this witness in now.
The downside to that option is that now this doctor will testify, be subject to cross-examination and there is still the possibility that at the end of his testimony the judge will determine that his testimony is not connected to the issue discussed earlier and may in fact strike this testimony from the record.
That means that the judge would direct the jury to disregard all the questions and all of the answers this witness has just given.
Theoretically, it's easy to tell a jury to disregard something they've just heard.
In reality, it is much more difficult to unring the bell and get someone to not remember something they just heard minutes ago. In fact, it would appear as if the opposite had just occurred.
Let's say the jury has now spent an hour listening to questions by the attorney and then heard cross examination. If the judge determines that this witness's testimony is not admissible, he would tell the jury to disregard the testimony they just heard. What that really does is simply highlight that testimony and reinforce the fact that they just heard it.
Even though the judge will remind them they are not to consider that testimony when deciding their verdict, it becomes difficult if not impossible actually to enforce that legal instruction.
This entire discussion about whether or not to allow this last-minute witness to testify is often taking place right in front of the judge in whispers.
The jury is often in the courtroom waiting anxiously for the next witness to take the witness stand.
The plaintiffs attorney, the lawyer who just called this doctor to the witness stand is also anxious to get his witness on the stand and ask him the necessary questions to address the issue that is disputed.
The defense attorney is arguing vigorously, in quiet undertones, that if this witness were allowed to testify, he would be at a significant disadvantage because he had no opportunity to prepare a thorough cross-examination of this never-before-announced witness.
Within just a few moments of quiet argument, the judge will need to make a snap decision about whether to allow this witness to testify or not.
The case law in New York is rife with legal cases that have gone up on appeal for every option that has occurred. Unfortunately, there is no one-size-fits-all answer to this question.
I have seen medical malpractice cases where judges have permitted experts to testify where the attorney never notified the defense until moments before the doctor walked in. On the other hand, I've seen cases where the judge has refused to allow such a medical expert to testify in the absence of sufficient notice to the other side.
And I've also seen that scenario where the judge allows the witness to testify subject to connecting his testimony to the issue that is in dispute.
In some cases, the judge will ask the jury to step out of the courtroom so that now he can put his rulings on the record.
It is critically important for the attorneys to also put their legal argument on the record so that if they lose at trial, they have the option, after the trial is over, to appeal this issue to the Appellate court.
Once the issue has been decided, the judge will bring the jury back into the courtroom and continue on with the trial.