Lexis Nexis Practice Guide New Jersey Trial Post Trial

This is a portion of a chapter written by Anthony J. Murgatroyd and published in the Lexis Nexis Practice Guide entitled New Jersey Post-Trial and Appellate Proceedings © 2007 by Lexis Nexis Matthew Bender.


§ 1.20 Preparing Client for Trial

It is important to meet with the clients as often as necessary before trial to make certain they understand the proceeding that will take place and are well prepared. At a client meeting, explain the proceedings, taking care to highlight the functions of the judge, the jury, and opposing counsel. Explain the stages of the trial from jury selection to verdict. Acquaint the clients with the evidence and the expected roster of witnesses both for and against their claim. Make certain the clients understand that proper dress and prompt arrival at court are critical.

Review with the clients questions they will likely be required to answer both on direct examination and cross-examination. Explain the principles of hearsay, so the clients understand that they will not be able to testify to the statements they learned from witnesses who will not be in court. Explain the difference between leading and non-leading questions. The clients need to know that the purpose of direct examination is for the fact finder to hear what they have to say about the matter. To make sure the fact finder hears the testimony of the witness and not the lawyer, leading questions are not permitted. Ensure that the clients understand that when opposing counsel questions them, the purpose is not to retell the story, but for opposing counsel to challenge their credibility. The opposing lawyer will try to exercise control by limiting the clients to short answers and attempting to tell the story from the opponent's perspective. Most often, the questions on cross-examination will be based on testimony previously given by the client. Therefore, it is critical that the clients be instructed to review their interrogatory answers, deposition testimony, and any other statements they may have given in discovery to ensure consistent responses.

It is advisable to videotape the client's direct and cross-examination rehearsals. Having the clients watch themselves on videotape will help them observe firsthand any problem areas in their presentation, credibility, and demeanor.

It is also advantageous to take the clients to court. If possible, show them the layout of the courtroom in the courthouse where their trial will take place. This will help reduce their anxiety and make them more comfortable when they appear for the trial. Show the clients where they will be sitting when they testify and when they leave the stand. Show them where counsel will stand when questioning them during direct examination and where opposing counsel will likely stand during cross-examination. Stress the importance of eye contact with the jury, especially during key aspects of their testimony. Only with intense practice and preparation can the best results be achieved. See also § 7.07 below.

§ 1.21 Identifying Witnesses and Their Availability

[1] Ensuring Witness Cooperation

The court must give at least eight weeks' notice when the matter is listed for trial for the first time. N.J. Ct. R. 4:36-3(a). If a case cannot be reached within the week in which the scheduled date falls, it must be relisted no earlier than 30 days after the last trial listing. N.J. Ct. R. 4:36-3(a). Once counsel receives notice of the trial date, it is imperative to contact the client and all witnesses to make them aware of the upcoming trial and ensure their availability for the projected length of the trial. Preferably, contact should be both oral and written. It is important that counsel meet with all witnesses to prepare them for trial, assess their demeanor and establish or confirm the favorable and unfavorable points of their testimony.


Form CLT 1.119.01, Letter to Lay Witness to Be Called at Trial

Form CLT 1.119.02, Letter to Expert Witness to Be Called at Trial

Form CLT 1.119.03, Witness Information Summary

Form CLT 1.119.04, Expert Availability for Week of Trial Listing

[2] Obtaining Witness Contact Information

Obtain as much information from the witnesses as possible so that it will not be difficult to reach them for preparation and trial. This will help minimize the risk of subjecting witnesses to extended waiting time in the courtroom prior to their turn to testify. Although most judges are tolerant of scheduling problems, they are also concerned about minimizing the jurors' idle time. Despite this, trial counsel can only estimate, and never knows for sure, when a certain witness will be needed for trial testimony. Consequently, it is important to obtain all available contact information, and update all past information, so counsel readily can locate the witness and provide as much advance notice of the trial as possible. Gather all home and work addresses, e-mail addresses and all available telephone numbers.

[3] Protecting Against Witness Unavailability

[a] Taking Videotaped Depositions of Lay Witnesses for Use at Trial

Most often, trial adjournments are requested for key lay witnesses who are unavailable. To avoid trial adjournments requested for this reason, N.J. Ct. R. 4:14-9 permits the deposition of a lay witness to be videotaped in advance of trial for use at the trial. Due to the cost, it is contemplated that most practitioners would not videotape lay witness testimony unless the witness's testimony is indispensable and the court has denied any further adjournment requests, or where the witness is unavailable for the foreseeable future, for example, if the witness plans to relocate out of town or is terminally ill. See also § 7.12[1] below; LexisNexis Practice Guide NJ Civil Discovery Ch. 4, Depositions.

Timing: Practitioners should be mindful that any trial adjournment requests must be made as soon as the need is known, but in no event later than the close of business on the Wednesday preceding the Monday of the trial week. N.J. Ct. R. 4:36-3.

[b] Taking Videotaped Depositions of Expert Witnesses for Use at Trial

Historically, some doctors have been willing to give opinions, but not to testify in court either because of the anxiety of testifying before a jury or because of the time commitment. Those doctors willing to testify in court were often unavailable, resulting in continued adjournment requests. To address this problem, the New Jersey Court Rules were amended to permit videotaped expert depositions to be introduced at trial in lieu of live trial testimony. Videotaped depositions may be used at trial in lieu of live testimony regardless of whether or not the expert is available to testify, and the party taking the videotaped deposition is not thereafter precluded from producing the expert at trial. N.J. Ct. R. 4:14-9(f).

Warning: Failure to either show videotaped testimony or produce videotaped witness for in-person testimony would likely entitle the opponent to the benefit of an adverse inference charge. Genovese v. N.J. Pr. Rail Operations, 234 N.J. Super. 375, 560 A.2d 1272 (App. Div. 1989). If a videotaped witness is called to appear at trial in person, the videotaped deposition testimony would likely be admissible as substantive evidence if it was inconsistent with the in-person trial testimony .

[c] Complying with Videotaped Deposition Time Requirements

Time limitations apply to the taking of video depositions. The party intending to videotape a deposition must serve notice of the deposition not less than 10 days prior to the deposition date. The notice must state that the deposition is to be videotaped. N.J. Ct. R. 4:14-9(b). If an expert is to be deposed on video, the expert report of that deponent must be served on all parties at least 30 days prior to the deposition notice. N.J. Ct. R. 4:14-9(a). See also LexisNexis Practice Guide NJ Civil Discovery Ch. 4, Depositions.

Strategic Point: In practice, after receiving notice of the video deposition, opposing counsel often request a discovery deposition to be taken, prior to or on the same day as the video deposition of the expert for use as trial testimony. Be aware, however, that the court rules require any party wishing to take a discovery deposition of an expert to do so within the 30-day period after the expert furnishes his or her report. N.J. Ct. R. 4:14-9(a).


Form CLT 1.119.05, Letter Transmitting Notice of Videotaped Deposition

Form CLT 1.119.06, Notice of Videotaped Deposition

[d] Making All Evidentiary Objections During Videotaped Deposition

If a videotaped deposition is taken for use at trial, all evidentiary objections must be made during the course of the deposition. Each party making objections must file a motion for ruling on the objections within 45 days after completing the deposition. The court may, however, shorten the 45-day time period on its own motion, or the motion of a party, if the deposition of a treating physician or an expert witness is being taken on the basis of expert unavailability pursuant to N.J. Ct. R. 4:36-3(c) or for other good cause. N.J. Ct. R. 4:14-9. See also LexisNexis Practice Guide NJ Civil Discovery Ch. 4, Depositions.

Timing: If the opposing party fails to file a motion requesting rulings on objections made during a videotaped deposition within 45 days after the completion of the deposition, those objections will be deemed waived.

[e] Understanding that Party Taking Videotaped Deposition Bears All Out-of-Pocket Costs Incurred in Making Deposition

All out-of-pocket expenses incurred in connection with the videotaped deposition, including the making of copies and editing of tapes, are borne by the party taking the deposition. N.J. Ct. R. 4:14-9(g). See also LexisNexis Practice Guide NJ Civil Discovery Ch. 4, Depositions.

§ 1.22 Organizing and Evaluating Damage Claim Proofs

[1] Considering All Documented Damage Proofs

In most personal injury cases, damages proofs are shown to the jury and witness testimony is needed to authenticate the proofs. It is important, then, in trial preparation, to organize and evaluate all damage proofs including all documents, invoices, medical records and bills. Experts will need to review all medical bills and be prepared to testify that they are familiar with the type of service rendered, that the services rendered were necessary and related to the injury, and that the charges are similar to the charges of other doctors in the area for the same or similar services. Opposing counsel will sometimes recognize that it is not always in the best interests of their clients to have extensive charges put before the jury and will agree on the amount of medical bills without having an expert review and discuss the reasonableness, necessity and causal relation of each.

It is necessary that the expert be familiar with the type of service rendered and be able to tell the jury that the charges are similar to the charges of other doctors in the area for the same or similar services. The expert may not be competent to testify on all bills. For example, a bill may contain charges for treatment out of state and a local doctor would be unfamiliar with the costs associated with services in that state. Alternatively, the bill may be for types of services or treatments not within knowledge of the testifying doctor. If opposing counsel will not stipulate to bills that cannot be covered by the testifying expert, counsel should consider serving a demand for admissions. If a demand for admissions fails to produce the desired result, counsel should be prepared to subpoena the custodian of records for each bill the testifying doctor is not able to support. In the end, most reasonable practitioners will relent and stipulate to avoid valuable trial time being taken up with the authentication of bills.

See also § 7.07 below.


Form CLT 1.119.01, Letter to Lay Witness to Be Called at Trial

Form CLT 1.119.02, Letter to Expert Witness to Be Called at Trial

Form CLT 1.119.03, Letter to Expert Witness to Be Called at Trial

[2] Considering Use of Demonstrative Evidence

[a] Meeting Requirements for Use of Demonstrative Evidence

When meeting with the client and preparing for trial it is critical to consider the use of demonstrative evidence. Demonstrative evidence is evidence used to make a party's theories, testimony or other evidence more understandable to the jury. It allows the jury to better understand and appreciate the party's position. Demonstrative evidence includes, but is not limited to, maps, diagrams, photographs, motion pictures, models, charts, timelines, medical illustrations, and enlargements of x-rays or other diagnostic studies. See also § 6.05 below.

In order to use demonstrative evidence at trial, the practitioner must establish a foundation. Counsel must be able to show that the evidence:

  • Has a tendency to prove any material fact (N.J.R.E. 401);
  • Is authentic (N.J.R.E. 901);
  • Will aid the jury in understanding the testimony (N.J.R.E. 901); and
  • Is a fair and accurate representation of what it purports to be (N.J.R.E. 901).

[b] Meeting Special Requirements for Tests, Experiments and Re-creations

There is a special concern for the use of tests, experiments, or re-creations and they are subject to a more rigorous requirement. New Jersey courts have recognized the inherent dangers and the artificial nature of such tests and reenactments, as well as the potential for the jury to give them inordinate weight. Practitioners must provide advance notice to opposing counsel and give them an opportunity to attend the tests, experiments or recreations. Balian v. General Motors, 121 N.J. Super. 118, 296 A.2d 317 (App. Div. 1972).

[c] Considering Common Objections to Use of Demonstrative Evidence

Even relevant evidence may be excluded if its probative value is substantially outweighed by the risk of undue prejudice, confusion of the issues, misleading the jury, undue delay, or the needless presentation of cumulative evidence. N.J.R.E. 403.

The most common objections to the use of demonstrative evidence include:

  • The exhibit has not been properly authenticated and is not a reliable or correct representation of the subject matter.
  • The witness is not qualified to authenticate the exhibit.
  • The exhibit will mislead, confuse, or unfairly prejudice the jury.
  • The exhibit is cumulative of other evidence already admitted.
  • Reference to the exhibit is not necessary or helpful to the jury in understanding other evidence.
  • If the exhibit is a model or illustration, it is not reasonably or conceptually accurate.
  • Sufficient notice was not provided to opposing counsel before the performance of a test, experiment, reenactment or re-creation.

The use of diagrams, photographs, models and other demonstrative evidence is routinely permitted during trial, without counsel having had to supply those items to opposing counsel during discovery. It is advisable, however, to notify opposing counsel of the intent to use such demonstrative evidence and permit inspection prior to trial either through answers to interrogatories or by letter once the need becomes known. In fact, disclosure is mandated by N.J. Ct. R. 4:25-7 governing the pretrial exchange of information. Further, before incurring the expense of preparation of demonstrative exhibits for use by an expert, counsel should ensure that the expert has reviewed the proposed demonstrative exhibits and can testify as follows:

  • The expert is familiar with the object or exhibit;
  • The exhibit will aid and assist the expert in explaining the testimony; and
  • It is an accurate depiction of the relevant item.

[3] Evaluating Need for Day-in-the-Life Video in Personal Injury Cases

Counsel for a claimant should always consider the need for the day-in-the-life video in personal injury cases involving serious, debilitating injuries. New Jersey courts have held that day-in-the-life videos of an accident victim may be admitted as evidence to aid the jury in understanding the nature and extent of injuries, and the nature and extent of future care required. Ocasio v. Amtrak, 299 N.J. Super. 154, 690 A.2d 682 (App. Div. 1997); Schiavo v. Owen-Corning Fiberglass Corp., 282 N.J. Super. 368, 660 A.2d 515 (App. Div. 1995).

In all situations in which counsel is considering creating a day-in-the-life video, counsel should visit the client's home at least one week before the filming to evaluate the client's lifestyle. It is also recommended that the proposed video be discussed in advance with an economic expert and a life care planner to verify that their areas of proposed testimony are covered on the video.

Often, opposing counsel will object to a day-in-the-life video on the basis that counsel was not given notice and an opportunity to be present during the filming, thus calling into question the tape's accuracy. Opposing counsel will often cite to Balian v. General Motors, 121 N.J. Super. 118, 296 A.2d 317 (App. Div. 1972), for support. In Balian, the Appellate Division held that opposing counsel must be given notice and an opportunity to be present during the filming of any reconstructed event or demonstration. However, in Velazquez v. Jiminez, 336 N.J. Super. 10, 763 A.2d 753 (App. Div. 2000), the court held that Balian is inapplicable to a day-in-the-life video because such videos are not reconstructed events or posed demonstrations. Despite this, counsel should be aware that the trial judge has wide latitude in determining the nature and extent of day-in-the life footage that the jury will be permitted to see. Therefore, it is advisable to notify opposing counsel of the videotaping and permit them the opportunity to be present and raise objections, and to edit the tape to the extent possible to meet any reasonable objections. Alternatively, counsel should consider requesting a pretrial conference with the judge to discuss the objectives of the day-in-the-life filming and entertain opposing counsel's objections. In that way the chances of having the film barred as cumulative, or edited in ways that were not anticipated, will be greatly minimized.

Warning: Judges enjoy substantial discretion in determining whether to permit the jury to view video footage. Counsel should be as open and as flexible as possible in alerting the court and opposing counsel to the intention of making a video and should consider editing the video to cater to reasonable objections.


Form CLT 1.119.07, Trial Exhibit Worksheet