The attorneys named are:

• Matthew F. Belanger, in the practice areas of personal injury litigation and product liability litigation. Belanger, a resident of Brighton, has been named to Best Lawyers since 2008.
• John A. Falk, in medical malpractice law, personal injury litigation and product liability litigation. The Brighton resident also was named to Best Lawyers in 2009.
• Angelo G. Faraci, in legal malpractice law, medical malpractice law, personal injury litigation and product liability litigation. Faraci, who resides in Rochester, has been listed in Best Lawyers since its inception in 1983.
• Paul K. Lange, in medical malpractice law, personal injury litigation and product liability litigation. First named to Best Lawyers in 2001, Lange resides in Rochester.
• Joseph A. Regan, in medical malpractice law, personal injury litigation and product liability litigation. The Rochester resident has been named to Best Lawyers since 2005.
• Stephen G. Schwarz, in medical malpractice law, personal injury litigation and product liability litigation. The Fairport resident was first named to Best Lawyers in 1999.
• Brian M. Zorn, in medical malpractice law, personal injury litigation and product liability litigation. Zorn, who resides in Victor, has been named to Best Lawyers since 1995.

Best Lawyers, the oldest and most respected peer-review publication in the legal profession, is based on an exhaustive annual survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence.

Because Best Lawyers is based on a peer-review survey, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Steven Naifeh, president of Best Lawyers, said, “We continue to believe – as we have believed for 28 years – that recognition by one’s peers is the most meaningful form of recognition in the legal profession.”

Cook focuses his practice on commercial and real estate litigation, environmental law, agriculture law, labor and employment, and personal injury law. Before joining Faraci Lange LLP he was an equity partner at Nixon Peabody LLP and previously served as the chair of the real estate litigation team.

He is a member of the Monroe County Bar Association, the New York State Bar Association and the American Bar Association. Cook earned his law degree and his master’s degree in Public Administration from Brigham Young University. He has been recognized as a “New York Super Lawyer” and has received an AV rating, the highest rating available, from Martindale-Hubbell.

Previously employed as an associate at the New York City law firm of Weitz & Luxenberg, Matarazzo focuses her practice on toxic torts, environmental law, medical malpractice and products liability.

Matarazzo earned her law degree from the Rutgers University School of Law Newark and her bachelor’s degree from the University of Vermont. She resides in the city of Rochester, N.Y.

The award is given to attorneys who are active in the community, demonstrate a commitment to the community through activities or pro bono work, and who demonstrate leadership and above-average achievements in day-to-day legal assignments. 

Jordan focuses her practice on medical malpractice, complex tort and toxic tort, premises liability, products liability and automotive negligence cases. She is a resident of Farmington, N.Y.

Schwarz is being honored for his outstanding contribution to the Bar Association’s continuing legal education process. Schwarz, previously recognized with the Pauley Award in 2004, was presented the 2010 award at the Monroe County Bar Association’s annual Installation Dinner.

Faraci Lange’s managing partner, Schwarz focuses his legal practice on personal injury and business litigation, including medical malpractice, serious auto accident cases, product liability, and toxic tort and environmental contamination cases in both state and federal courts.

Stephen Schwarz resides in the town of Fairport, N.Y.

Once you have plotted your strategy there are techniques that can be used to help you execute that strategy effectively. Below are a number of techniques to keep in mind.

 a.  The rule of probability in human behavior

For a truly effective cross examination the examiner must be knowledgeable and aware of common principles of human behavior. In a trial you will be called upon to instantly analyze and react to a witness’s use of a certain word, phrase, or obvious body language. The examiner’s questions test what the witness is saying against widely known common experiences. You do not have to have direct knowledge to ask the witness certain questions since common human experience provides us with a probable answer.“Q: You love your son?” or

“Q: You were upset after the accident, weren’t you?”.

The famed attorney Jerry Spence in conducting a cross-examination of an incarcerated witness who had made a deal with the prosecution to testify against the defendant demonstrated in a very sympathetic way all of the pleasures of life that the witness was being deprived of by being in jail leading to his final question:

“Q: I suppose you would do anything to get out of jail.”

Finally, in a case where the witness made a long and careful inspection of a vase in the Courtroom and then dramatically testified that that was the subject vase, the cross- examiner elicited the fact that there were thousands of these vases, and that the subject vase did not have any identifying marks upon it leaving the jury to the ultimate conclusion that the careful inspection had been nothing more than a performance.

b.  Techniques that work and those to be avoided

i.  Don’t always expect to confine the witness to a “yes” or “no” answer.

ii.  Avoid asking the Court to admonish the witness.

iii.  Asking the Court to strike testimony as non-responsive protects your record but does very little to erase it from the jurors’ minds.

iv.  Get the answer to your question. Do not be diverted.

          “I am sorry, I am not making myself clear, my questions is—”

          “We will deal with that subject in a moment, please answer my question—”

          “Mr. Witness, are you reluctant to answer my question—”

v.  If you do not get an answer, repeat the question, then reverse it.

          Q:  Peripheral nerves are inherently elastic?

          A:  Well, nerves come in many types and varieties and it is difficult to characterize them in simple terms.

          Q:  But my question doctor was specific to peripheral nerves and that they are inherently elastic?

          A:  Well in some studies ….

          Q:  So doctor, then it must be true that peripheral nerves are inelastic and rigid, is that your testimony?

          A:  Well I certainly would not agree with that, they are indeed elastic in most cases.

vi.  Don’t let the witness tell his/her story or introduce new matter and new evidence. The witness will be given a good deal of latitude in answering the question, but the answer must be addressed to the question. At some point it is proper to interrupt the witness and to confront the witness:

vii.  Keep your eyes on the witness during cross-examination. Be alert to what the witness says and incorporate helpful language used by the witness into your questions that follow.

viii.  Avoid rigidly using outlines during cross other than as a checklist.

It is helpful to write out questions and to make outlines into chapters and topics but do not become a slave to your outline and miss opportunities provided to you in an answer to one of your questions. Follow the leads they give you and return to your plan afterwards.

ix.  Don’t allow yourself to be overwhelmed by documents and details.

Stay focused and organized. In order to do so, you may have to reduce your cross-examination to what is important and not include everything that is possible to confront the witness. Eliminating some of the less important areas will enhance your effectiveness and keep the jury much more attentive.

x.  Use of hypothetical questions:

Where you are attempting to get opinions from the witness, use of hypotheticals consisting of assumed facts in evidence is a useful way to elicit the opinion.

xi.  Do not focus on the meaningless and petty inconsistencies.

xii.  Read the jurors, but do not avoid important areas because they appear to be tired or bored

You must always be cognizant of how what you are doing is playing to the jury. However, you also must trust your instincts and your superior knowledge of all of the facts that will be presented. Sometimes a juror after a trial will say that your cross was too long but then recite exactly the point you wanted to make late in the cross as important to them in discrediting the witness. After they have made up their minds that the witness is not to be believed then everything after that is overkill. But the problem is that you never know when that point is reached or whether it is being reached at different points by different jurors.

Except for medical malpractice cases in state court, you will know who the opposition’s expert is before the trial. In federal court you will also be provided with a listing of cases in which the expert has recently testified. There is almost always something useful you can find that was authored or testified about by the expert in the past.

In a recent state court medical malpractice case the expert disclosure provided sufficient information to fairly conclusively identify who the expert was. That expert had an extensive website advertising his expertise in the field and discussing the maladies he could treat. On that website were a number of statements that were helpful in emphasizing the seriousness of the damage sustained by the plaintiff. These statements were presented at trial to the expert, who had no choice but to agree with them as he authored each of them.e.  Medical Literature vs. Learned Treatise

Above we discussed the learned treatise exception to the hearsay rule and the limited use it has in state court practice. This is not only because of the difficulty of getting any expert to agree to a text being “authoritative” but also because medicine and science are moving at such a rapid pace in this age that most doctors review “the literature” for background rather than a specific text. This brings up a very frequent issue: How to cross-examine an expert on articles in the medical literature that he or she will not anoint as “authoritative”.

Frequently, experts will state in their reports or expert disclosures that their opinions are supported by the “medical literature”. Sometimes they will go beyond that and indicate that the basis of their opinions is that they have searched the literature and were unable to find any articles that documented or substantiated the other side’s theory. If this is the tack taken by the expert there should be no need for the “authoritative” game to be played because the expert has thrown open the door to a discussion of anything that can properly found within “the medical literature”.

Where an expert has actually relied on medical literature articles to form his opinion, he may be cross-examined regarding such publications at trial. He cannot “foreclose full cross-examination by the semantic trick of announcing that he [does] not find the work authoritative.”  Spiegel v. Levy, 201 AD2d 378, 378-379 (1^st Dept, 1994). Thus, presentation of articles which contradict the expert’s conclusion as to what the literature shows is appropriate and can be effective in discrediting that conclusion.

f.  Contrasting opinions from treating physicians

In many medical cases the jury is confounded by being presented with opposing opinions from two qualified experts. In those cases the jury looks to the treating physicians who testify, whom they perceive as neutral to the controversy, to help them break the tie and decide which theory is most compelling. For this reason it is always helpful to find areas where testimony or reports from the treating physician contradict what the expert is telling the jury. The more of these that can be presented, the more the expert can be made to look like he or she is not being fair or honest in his or her assessment. For example, in the NG tube case mentioned above, the expert was confronted with the following questions on cross:

Did you have a chance to review Dr. Miller’s trial testimony before you testified?

I want to play you some of Dr. Miller’s testimony to see if you agree with it?

[Testimony video clip played]

Doctor would you agree that this thin one or two cell thick mucosa could never be accurately described as extremely durable and impervious to injury?

Isn’t that what you told this jury on direct?

g.  Contradicting testimony of another adverse witness

As mentioned above, when you have the expert on the stand you can sometimes use him or her for your own purposes as long as your questioning is within the scope of the direct and the opinions given. Sometimes you can actually get the expert to contradict the testimony of a witness in the case presented by the same side. For example, in the case we have been referring to about the NG tube injury, the nurse who inserted the tube and the nurse’s supervisor both testified prior to the expert’s appearance that they were never taught or learned that improperly placing NG tubes in the esophagus could cause esophageal perforations and serious injury. This was blatantly incorrect. However, the expert had not been prepped for this at all and after a foundation was laid by reviewing with the expert numerous medical literature reports of esophageal injuries from NG tubes and how any well trained practitioner should always be aware of this possibility when inserting a tube, the testimony of the two witnesses was shown to the expert. He had no choice but to agree that they were wrong and poorly trained if that was their position.

This can also be done when the other side has more than one expert. If they are not in agreement on any significant points, it is good to confront the expert with the discrepancies.

h.  Reviewing and using information in the expert’s file

Although most experts are smart enough not to leave too much in their files that could be utilized on cross-examination, it is always worth the time to look. It could be a letter from counsel that can be used to support the argument that the expert knew what his opinion would be before referring to any of the facts. There also may be compensation information there that contradicts what the expert says he is being paid. There are also experts that bring no file with them and sometimes this can be discussed with them to plant a seed with the jury that they avoided bringing their file for a reason.

i.  Compensation, bias and bad acts

This topic is left to last because it is typically the least effective for use by plaintiffs in this era. It is usually difficult to make the defense witness look like a shill unless he or she is being paid orders of magnitude over what the plaintiff’s expert received in compensation. Similarly, most expert witnesses have testified before and pointing this out rarely scores a lot of points. Because of juror’s general skepticism toward plaintiffs today these attacks frequently work much better when used on plaintiff’s experts than on defendant’s experts. Some jurors who come in with a negative feeling about plaintiffs generally only need a little help to substantiate their negative impression and give them cause to vote for the defense. These types of attacks will sometimes be all that is needed to convince a jury not to believe the plaintiff’s expert.

Few attorneys will put an expert on the stand that has a lot of collateral baggage. If you get into the rare situation where such an expert is before you to be cross-examined always beware of the collateral matter rule and how you will handle it if the expert denies the prior bad act.

A Monroe County Supreme Court jury awarded Neil and Patti Goldstein a verdict that totals $187,393.35 (including interest) against Spall Realty Corporation and Brookwood Building Corporation for causing a mold infestation of their home at the Settlers Green development in Pittsford, New York. The jury did not find that the TJI joists on which most of the mold grew were defective at the time they left the manufacturer. The court found that Spall and Brookwood were liable for the damages due to numerous construction defects proven at trial that made the basement wet and promoted the mold growth. The homeowners’ experts had also testified that because one particularly dangerous species of mold was discovered not only on the outside of the Weyerhaeuser TJI joists but also inside them, and also inside other TJI joists that were tested from other sources, that the mold must have been inside since the time of manufacture. However, the jury did not find sufficient proof to make that determination of when the mold entered the construction materials and therefore found in favor of Weyerhaeuser on this point.The jury awarded pain and suffering damages of $12,500 each to Dr. Goldstein and his wife Patti plus an additional $132,566 to pay for the cost of remediating the mold, the personal property that had to be destroyed due to mold contamination and for the loss of use of their property from the time the mold was first discovered until the time that the remediation was finally completed, a period of 18 months.  By law interest is also awarded back to the time of loss for these property damages, totally an additional $29,827.

“We are very happy with the jury’s verdict, although we also thought that Weyerhaeuser should have been found liable” said Stephen G. Schwarz, of Faraci Lange, LLP, the law firm representing the plaintiffs. “My clients have suffered greatly both financially and emotionally as a result of this ordeal and we are happy that they will now be compensated for what they have endured over the past four years”.

“It has been a long hard road and Spall has fought us each step of the way, forcing us to remediate the property ourselves and then sue them to get our money back” added Patti Goldstein. “It will be great to get on with our lives and put this horrible experience behind us. We only hope that other people who are contemplating building with Spall and any of his shell corporations will learn from our misery.”

Dr. Neil Goldstein commented further:  “We are happy that this trial has shed light on Spall Realty Corporation and Brookwood Building Corporation and their principal Ted Spall, Jr. and the numerous construction defects that led to the mold growing in our home. What is more important is that the court and jury have found that Ted Spall, Jr. is accountable for the mistakes made in homes built by his companies as hard as he has tried to avoid any accountability whatsoever.”

 “Spall testified at trial that he has a dozen or more corporations that ‘build’ houses but that none of these corporations have any employees” Schwarz said. “He uses these corporations as a legal shield when things go wrong with these homes. Although his website, spallhomes.com claims that Spall Homes Corporation builds the homes, he admitted on the witness stand that Spall Homes Corporation has not existed since 1989 when it was merged into Spall Realty Corporation and that he uses that name to attract buyers and then switches to one of the shell corporations when they sign the contract. The court and jury certainly saw through this for what it was, a sham” said Schwarz.

Ted Spall, Jr. is the principal behind Settlers Green and also a number of other developments in Pittsford including Greythorne Hill, Harvest Glen, Rollins Crossing and Lancaster Rise.

For more information contact Katrina Connelly, Faraci Lange, LLP, 585-325-5150 or kconnelly@faraci.com.