Yet, now, over three years since the accident, and in contravention of the statute of limitations, plaintiff has commenced this lawsuit, and has done so at a time when potential witnesses have disappeared, memories have faded, and evidence has been lost. There is a reason for a statute of limitations: to encourage prompt filing of lawsuits so a civil defendant does not have to fight a lawsuit handicapped. This late suit strikes at the very heart of the statute of limitations. For these reasons, defendant requests that plaintiff's action be dismissed with prejudice.
Persuading the Court
The prior example reveals why the preserving harm technique is such a highly persuasive legal writing tool. A significant number of judges define their role—and this author believes he is not alone in holding this view—not as mere umpires responsible for upholding a complex set of rules—i.e., calling "balls and strikes" to borrow a phrase from Chief Justice John Roberts11—but as arbiters of justice. In any given matter, judges want to know whether application of a specific rule will ultimately achieve a just result in the controversy before them. Though some would suggest that this approach reflects judicial activism—a topic best left for another article—the point remains that counsel can use the preserving harm technique to convince the tribunal, whatever its judicial philosophy, that a favorable ruling is not only legally correct, but is one that fully comports with basic notions of justice, due process and fair play.
Of course, the extent to which counsel can successfully preserve harm in the nisi prius court will vary with each case. To maintain credibility, counsel should deploy this tactic wisely, using it only in those instances where there is sufficient factual support to claim that an adverse ruling will unfairly cause irreparable damage to the client. In those instances, though, trial counsel should pause, and contemplate for a moment how the perceived error fits within the context of the trial. With the right facts, counsel should articulate a vigorous objection, one that demonstrates how an unfavorable ruling will improperly cut off counsel's ability to fairly present the client's case. The objection may fall on deaf ears, and counsel may emerge from the sidebar defeated in battle, but counsel can rest assured that the record has been enhanced for the long war in the appellate courts.
Thomas R. Villecco, a sole practitioner, focuses in appellate litigation and assisting attorneys in motion practice. He can be reached at tvillecco@villeccoappeals.com.
Endnotes:
1. "At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid."
2. "An error in a ruling of the court shall be disregarded if a substantial right of a party is not prejudiced."
3. [N]o error or defect in any ruling or order…ground for granting a new trial or for setting aside a verdict.
4. See People v. Rivera, 39 N.Y.2d 519, 523 (1976).
5. See Walker v. State of New York, 111 A.D.2d 164, 165-166 (2d Dept. 1985). In the criminal context, the defendant must show "a reasonable possibility that the…[error] might have contributed to the conviction.'" People v. Crimmins, 36 N.Y.2d 230, 240-241 (1975) (quoting Fahy v. Connecticut, 375 U.S. 85, 86 [1967]).
6. See Sakin v. Fryman, 147 A.D.2d 626, 627 (2d Dept. 1989) ("[t]he sole question on cross-examination of the defendant's expert witness concerning insurance, while improper, was not so prejudicial as to have denied the defendant a fair trial. The nature of the evidence of the defendant's liability was extremely convincing").
7. See Mendoza v. Klapowitz, 215 A.D.2d 735, 735-736 (2d Dept. 1995) (though defendant's reference to decedent's comparative negligence was improper, judgment was affirmed where, inter alia, "the defendants' opening comments on this subject were brief.").
8. See Cotter v. Mercedes Benz Manhattan, 108 A.D.2d 173, 180 (1st Dept. 1985).
9. See Badr v. Hogan, 75 N.Y.2d 629 (1990).
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Steve Lubowitz
Most sidebars are not on the record, so it is not preserved. Can't ask for every sidebar to be on the record. Most Judges will tell you to make a record during a break in testimony. Should use sparingly.
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