Thursday, November 29, 2012

Leading questions, and assuming facts not in evidence.

Practice point: The Appellate Division found that plaintiff's counsel's questions were not leading because they did not suggest the answer that counsel wished the expert to give. Instead, they were merely calculated to draw the witness' mind to the subject of inquiry.

Student note: The questions did not assume facts not in evidence because they were based either upon facts testified to by the defendant herself or upon opinions previously expressed by the expert. The jury was entitled to accept or reject both the underlying facts and the underlying opinions upon which an answer to these questions would have been based.

Case: Heines v. Minkowitz, NY Slip Op 07273 (2d Dept. 2012).

Here is the decision.

Tomorrow’s issue: Motions to withdraw as counsel.