At Trial, Adam Leitman Bailey P.C. Keeps Out a Critical Piece of the Opposition’s Evidence
In any trial, it is hard to beat having compelling evidence on your side. But having an experienced trial lawyer in your corner to make sure that such key evidence is admitted and presented most effectively – or if the evidence is not in your favor, someone able to minimize the damage – can make or break your chances of success. Lack of familiarity with the rules of evidence and how to smoothly lay a necessary foundation can snatch defeat from the jaws of victory. Conversely, having a fluency in these rules and procedures can trip up the opposition, persuade the Court or jury, and make sure that your case is presented in the best light possible.
In one of our most recent New York Supreme Court trials, for example, a critical piece of evidence on which the opposition hoped to rely concerned various expenditures recorded in our client’s bookkeeping software. The opposition sought to admit this in summary, chart form due to the voluminous nature of the underlying records. Had the opposition been better versed in the rules of evidence – or had Adam Leitman Bailey, P.C. been less vigilant – these records could have been relatively straightforward to introduce and use at trial under the voluminous records (a.k.a. “summary”) exception. The exception generally requires that the underlying documents (from which the summary is created) are admissible or are in evidence already; that a qualified witness establish that the summary accurately reflects the original data, without omission or distortion; and that the original records be available to opposing counsel for inspection and cross-examination.
At trial, opposing counsel did not submit the underlying records, nor did he have them on hand so that, at a minimum, he could argue that they were available for inspection, comparison, and cross-examination vis-à-vis the summary chart. Counsel also failed to call a witness from the accounting firm that had been hired to analyze the financial data to establish that the summary was accurate and had not been changed in any way other than in format. Instead, counsel attempted to end-run the rules of evidence by having a layperson-client, who had been only marginally involved in analyzing the underlying financial records, present the summary for admission. Apparently, opposing counsel believed that the “summary” exception somehow also invited a “summary” approach to establishing a basic evidentiary foundation.
Not so. With their experience and intimate familiarity with the rules, Adam Leitman Bailey, P.C. trial lawyers were able to pick apart these missteps and lay bare the fact that the opposition’s “foundational” witness was nothing of the sort. What should have been a noncontroversial presentation, followed by powerful testimony, quickly devolved into a fumbling faux pas that damaged the credibility of the opposition and counsel and shifted attention away from potentially compelling evidence and onto the ensuing, awkward procedural mess. Ultimately, the evidence never saw the light of day, and the opposition’s momentum and strategy were irreversibly derailed.
Having the right counsel can be just as – sometimes more – important than having the right facts on your side.