There is no “Trial by Ambush” in New York (so we are led to believe). However, certain surprises make your heart beat especially hard during a trial that you should anticipate. The discovery process enables us to reasonably predict how the evidence will be presented, but between the layers of transcripts and documentary evidence lies the inevitable shocking moment in which you might choose to sink beneath the table.
Firstly, we should never slide underneath a table, especially when there are six complete strangers in the same room who will be deciding your client’s fate. Conversely, if the damning evidence is 100% confirmed, you should sit up straight and look forward as your adversary unleashes an attack that you did not expect. Be calm and put on your best “game face.” Start thinking of ways to soften the blow of this hard hit evidence.
For example, your client failed to tell you that he has suffered three (3 ! ) prior related injuries and has had three (3 !) prior lawsuits. Since it is the first time that you are hearing of it, you should be jotting down some questions that will take the swelling down and mitigate the loss. This is known as “rehabilitating” your witness.
After the decimation has been done, it is your turn to clean up the mess. The first question should be “Comparing your injuries in the 3 accidents to the injuries you suffered in this case, tell us how this injury is different.” If your client has any common sense, he should be able to describe that difference. Perhaps in this case he has undergone epidurals.
Your next series of questions should focus on THIS case – “what’s an “epidural’?” How is it performed? Anesthesia? Done in an Operating Room? Did your doctor explain the risks of the procedure? What were the risks he described? Despite those risks, did you decide to undergo the procedure? Describe how you felt the next day? etc.
Take the focus off the 3 prior accidents and place your attention on YOUR case. The spotlight should be on your client as it relates to the case at hand.