Do the Due, Diligence: Trial Prep

trial

We recently encountered a challenging situation; In one matter: 20 witnesses to verify and serve, a week before the trial date. There were a myriad of reasons why the attorney was unprepared for trial (several incidents came to light during this hectic process) but below, we pass along several generic trial prep techniques:

1. Consult with your trial prep person well before trial.

Meeting with your trial prep firm allows the investigator to become aware of the case facts, and allots him/her the time to review the matter and then, formulate and execute an operations plan.  (There will always be last minute filings, service, subject locates… that have to be performed.  An experienced trial prep firm, however , has resources already in place for those unforeseen events.)

2. Basic Paperwork and Activity To Have Completed Pre-Trial

– Special Power of Attorney.  This should be obtained from the injured client from the outset.  (In this recent case, the client lived several states away and was not readily able to come up and sign authorizations.)

– HIPAA authorizations.  If there is a hint that the records may contain medical information,  a duly executed HIPAA authorization form must be attached to the subpoena request for testimony and or records.

– So Ordered Subpoenas.  Generally, among other criteria, if a city, state or federal agency is involved, a So Ordered Subpoena (signed by a judge) must be obtained at the trial court.

– Subject Locates – Don’t use the DIY  online searches that are readily available online.  The vast majority  of these sites yield information that, if correct, ages out at about 12 to 18 months old already.   Have your investigator conduct comprehensive locates, especially in cases that, for whatever reason (e.g., attorney substitution) have gone on for a while,

Tip:  When dealing with EMS documents, note the shield numbers.  If the shield number is 6,000 or above (e.g. Shield# 7206 or 6024) this is a private ambulance that has responded.  Do not subpoena the FDNY at MetroTech for the Ambulance Call Report.  They won’t have it.  In the section underneath “Comments” on the ACR, there is a field for Hosp #.  The number in that field reveals the hospital associated with the responding ambulance.   (There may be one of two numbers written into this field; a 3 digit number is the trauma center designation and the number in parens is the FDNY hospital code assignment.  Almost all EMS personnel use the 2 digit FDNY code. n parentheses)  See below for NY County Hospital Codes. (For other boroughs: shoot us an email, we’ll send you the links.)

Hospital Information

Hospital Name Disposition Code Hospital Name Disposition Code
Bellevue Hospital 712 (02) Beth Israel Medical Petrie Campus 713 (03)
Cabrini Medical 715 (63) Goldwater Memorial Hospital – Coler Site 714
Goldwater Memorial Hospital – Goldwater Site 720 Harlem Hospital 721 (07)
Hospital Joint Diseases Ortho. Inst. 735 Hospital For Special Surgery 723
North General Hospital 758 (09) Lenox Hill Hospital 728 (11)
Manhattan Eye, Ear & Throat Hospital 730 (05) Memorial Hospital – Cancer & Allied Diseases 731 (08)
Metropolitan Hospital 732 (12) Mount Sinai Hospital 734 (13)
New York Eye & Ear Infirmary 736 New York Presbyterian Hospital Weill Cornell 737 (14)
New York University Downtown Hospital 941 (01) New York University Hospitals 739 (15)
New York Presbyterian Hospital
Columbia Presbyterian Division
742 (17) New York Presbyterian Hospital – Allen Pavillion 749 (16)
Rockefeller University Hospital 743 St. Clares Hospital & Health 746 (19)
St. Lukes-Roosevelt Hosp.
Roosevelt Hospital Division
759 (18) St. Lukes-Roosevelt Hosp.
St. Luke’s Division
745 (20)
St. Vincents Hospital & Medical of NY 748 (21) Veterans Administration Hospital 724 (10)
Beth Israel Medical Singer Division 718 (04)
  • (Number in Parenthesis indicates FDNY Hopital Number)
  • ‡ indicates trauma center designation

BNI Operatives: Situationally aware.

As always, stay safe.

Is The Witness Lying To You? Reading & Responding To Body Language.

two faced woman

Our body language tells us more than we realize about our motives, our desires, and our true feelings.   The nonverbal tips that our bodies project are keys to our true thoughts.  

Whether you are a private investigator meeting a potential witness for the first time and obtaining a statement from her or a trial lawyer in court questioning a witness, the main issue is not having a baseline of the witness’ normal behavior.  I’m very good at detecting when my friends and family are not telling the truth. Why? I know them. I know their mannerisms, vocal intonation and speech patterns.

Lie detection, although far from being an exact science, has come a long way over the past several years. The problem is that many of the ways liars reveal themselves are not easily identifiable in a court room setting. For example, polygraphs work because most people have a physiological response to lying. It is difficult, however, to know that a person’s heart rate has increased or his hands have begun to sweat from looking at him across the court room. Pupil dilation is also a potential indicator of dishonesty, but if you are close enough to see a change in the witness’ pupils, you are surely invading that witness’s personal space and that is generally not a good move.  So in an experimental setting (i.e., research laboratory with polygraph machines) it may be possible to identify deceit from a physiological change. During a deposition, however, those methods are not a viable option.

So what other options are there?Several possible predictors of deception (outside of a laboratory setting) are:

  1. Voice pitch.  Even during little white lies, the pitch of the voice goes higher.  The greater the lie, the higher the pitch is a general rule of thumb we observe in the field.
  2. Rate of speech.  People tend to talk more when they are lying because they feel the need to convince the questioner and believe by including as many (albeit, fictional) details as possible, that they are providing a lot of information.  More is not always better.

The problem with relying on these two reactions however is that some people talk that way all of the time so you have to have a baseline for comparison before you can conclude that the witness is lying to you.    If you believe that a witness is lying to you in a courtroom because of the rapidity of her speech, what do you have to compare that to to make a determination of deceit? Therefore, if you suspect a witness is lying about a particular portion of her testimony, you should stop asking questions about it. Move on to another line of questioning to see if her demeanor relaxes. Then return to the original subject to see if she gets anxious again. This will help you determine if the witness is nervous about that particular line of questioning or just nervous in general.

The single best predictor of lying however is the quick, unconscious movement made by the person lying.  I.e., that the person is saying yes but shaking her head, indicating “no”.  Lie detection experts have reviewed countless videos of when a statement was made that was later found to be a lie, (e.g., President Clinton denying a relationship with Monica Lewinski; Alex Rodriguez denying the use of steroids in his interview with Katie Couric).  The person’s head movement was a consistent predictor of deception.  Therefore, if you suspect a witness is lying or not being wholly truthful during a particular aspect of her deposition, pay close attention to the movement of her head as she answers. Additionally, look for general inconsistencies in behavior. Does her body language match what she is saying? If you have a bad feeling about a witness, don’t ignore your instinct.

Basically, time is your friend during a deposition in establishing a baseline – as slim as it may be, it’s better than nothing.  If certain questions make the witness skittish, drop that line of inquiry quickly and when she least expects it, wrap right back to that particular point in her testimony.  Practice with your staff and you will be amazed at the accuracy rate of your instincts. (For obvious reasons and to lessen the turnover rate of employees, however, you may want to rethink that suggestion…)

BNI Operatives: Situationally aware.

As always, stay safe.