Conduct of Trial - Motion to Adjourn Trial - Defendant’s Objection to proceed with Defense before Plaintiff Rests
Ordinarily, the party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof.[1] On occasion, an expert witness will be the last witness called to testify for the plaintiff before the plaintiff will rest. Sometimes the witness does not finish her direct testimony or cross-examination and is unable to return the next morning because he has hospital rounds all day. Usually, the court will allow the witness to return on another day and direct the defendant to start his case, subject to recall of the expert witness. If the defendant cannot present his case until the expert has concluded his testimony, counsel may move to adjourn the trial until the witness returns and concludes his testimony and is cross-examined, thus concluding the plaintiff’s case. [2]
[1] Yeomans v. Warren, 87 A.D.2d 713, 448 N.Y.S.2d 889; Seguin v. Berg, 260 App.Div. 284, 21 N.Y.S.2d 291.
[2] In Roberts v St. Francis Hospital, 96 A.D.2d 272, 470 N.Y.S.2d 716 (3d Dept, 1983) the trial court committed reversible error in striking defendant's answer after she refused to proceed until after the appearance of plaintiff's final witness. Speedy disposition of cases should not take precedence over the substantial rights of the litigants. The trial court was so concerned by the loss of half a trial day that it imposed the drastic penalty of precluding a defense on the merits, despite the valid basis for defendant's refusal to proceed before all of plaintiff’s evidence was in. Ordinarily, the party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof. The saving of a half day's trial time was not a sufficient justification for a departure from the general rule. Without the testimony of that witness plaintiff had quite arguably failed to present a prima facie case of malpractice. Had defendant been permitted to hear all of plaintiff's case against her, she might have moved upon the close thereof for a nonsuit on the ground that plaintiff had not proven a prima facie case. She might also have been so confident of the weakness of plaintiff's case that she would have chosen to proceed to the jury without presenting any proof on her behalf. Defendant should have had the opportunity to exercise these options after hearing all of plaintiff's case.
Ordinarily, the party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof.[1] On occasion, an expert witness will be the last witness called to testify for the plaintiff before the plaintiff will rest. Sometimes the witness does not finish her direct testimony or cross-examination and is unable to return the next morning because he has hospital rounds all day. Usually, the court will allow the witness to return on another day and direct the defendant to start his case, subject to recall of the expert witness. If the defendant cannot present his case until the expert has concluded his testimony, counsel may move to adjourn the trial until the witness returns and concludes his testimony and is cross-examined, thus concluding the plaintiff’s case. [2]
[1] Yeomans v. Warren, 87 A.D.2d 713, 448 N.Y.S.2d 889; Seguin v. Berg, 260 App.Div. 284, 21 N.Y.S.2d 291.
[2] In Roberts v St. Francis Hospital, 96 A.D.2d 272, 470 N.Y.S.2d 716 (3d Dept, 1983) the trial court committed reversible error in striking defendant's answer after she refused to proceed until after the appearance of plaintiff's final witness. Speedy disposition of cases should not take precedence over the substantial rights of the litigants. The trial court was so concerned by the loss of half a trial day that it imposed the drastic penalty of precluding a defense on the merits, despite the valid basis for defendant's refusal to proceed before all of plaintiff’s evidence was in. Ordinarily, the party bearing the burden of proof is obligated to complete his prima facie case before the opposing party must present his proof. The saving of a half day's trial time was not a sufficient justification for a departure from the general rule. Without the testimony of that witness plaintiff had quite arguably failed to present a prima facie case of malpractice. Had defendant been permitted to hear all of plaintiff's case against her, she might have moved upon the close thereof for a nonsuit on the ground that plaintiff had not proven a prima facie case. She might also have been so confident of the weakness of plaintiff's case that she would have chosen to proceed to the jury without presenting any proof on her behalf. Defendant should have had the opportunity to exercise these options after hearing all of plaintiff's case.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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