Tuesday, November 09, 2004

Taking a broader view of (Criminal) Trial law

As those of you who know me are aware, I have a broader view of the role of a criminal trial lawyer. To begin I think that lawyers trained at the criminal bar are the best trained trial lawyers in the courthouse. As such I refuse to be pigeon-holed into a strictly criminal courtroom and instead take a more federal view toward trial law. Much as a District Court Judge is not just hearing Criminal or Civil Cases neither should the trial lawyer be so narrowly viewed nor should he so narrowly view his role. He is an advocate first and trained in the Criminal law second. His or her ability to ferret out truth and to be resourceful is what makes him so diversified. More importantly he who artificially limits his academic pursuits is bound to be way to parochial to see the bigger picture. Hence the trial advocate that never tries a different kind of a case is bound to miss those things he might learn in practicing in other disciplines. Certainly having to know so many different areas of law is difficult. It is however also challenging and fascinating. It is equally important that the (Criminal ) trial lawyer not try to be a specialist in any one area but instead be a specialist in evidence and trial technique and learn all he needs to know to win the narrow positions posited in the case he is bringing. I often rely on lawyers who work in any one area on a given case for their potenial expertise in the pleadings of that particular disipline. That however is only to be a help to me. I must learn what I need to know for the case, I must play with the law's nuances and I must be the one to walk in it's shadowy places. If that sounds more like the life of a barrister in England than like an american lawyer so be it. For me my interest lies in the fine distinctions of the moves of the trial lawyer. I want to specializde in the presentation the questioning and examining and investigating of a case. My love of the criminal law and of the mens and actus reas of a criminal act discounts the fake distinctions placed upon trial lawyers by where a case is tried or what book governs the case. If I can read I can learn the law of the case. It takes a special person to be an advocate and an awful lot of blood sweat and tears to become a trial lawyer. I prefer that and the satisfaction the acedemic rigors of such a practice brings to taking the easier way out. Hence in an effort to help myself and my like thinking brothers and sisters stay abreast of what they need to know, I Blog! I also feverently hope that if anyone ever reads this stuff they enjoy it's presentation as much as I enjoyed writing it.

And Now For Today's Blog:
It's been an interesting week of decisions and we here at Long Island (Criminal) Trial Law thought we would bring you a few of the cases and lessons that trial attorneys have learned this week. Today's topic:

Family & Personal Injury Law

I. Chen v. Fischer, 2004 WL 2389825, 2004 N.Y. Slip Op 07677 (2d Dept. 2004).

In a case out of the Second Department the court grappled with what effect a divorce had on a later action for tortuous acts alleged to have occurred during the said marriage. It seemed that Ms. Chen married Mr. Fisher in March of 2001. The marriage was the precursor to a Britney Spears wedding, in that it ended some 89 days later in June of 2001. Mr. Fisher alleged in his complaint that Ms. Chen treated him cruelly. In July Ms. Chen answered that it was Mr. Fisher was cruel and that he also defrauded her. In May of 2002 the court put this wedded hell to bed by granting a divorce based on a stipulation of October 2001 and dealt with on equitable distribution issues. The court further dismissed the fraud claim for a proof failure. Meanwhile the law associates working in Ms. Fisher's lawyers office went to work overtime and filed another action for Personal Injuries she sustained by Mr. Fisher's intentional infliction of emotional distress (he locked her out of her home and would not let her visit friends and emotionally abused her for not having sex with him) and for assault and battery (a slap to the plaintiff's face.) This was filed before final judgment of Divorce but after the stipulation withdrawing everyone's most serious allegations of Cruel and Inhuman Treatment.

Fischer's answer to the second amended complaint pleads, as an affirmative defense, that the action was barred by res judicata, because Chen made substantially the same factual allegations in her counterclaim for divorce on the ground of cruel and inhuman treatment within the Original answering papers in the matrimonial action, and later withdrew all but one of those allegations in the stipulation of settlement, without expressly reserving any rights to make those assertions in a later separate action.

The Court held that although New York abolished interspousal immunity for torts in 1937, the law does not recognize a cause of action for Intentional Infliction of emotional distress between married parties. Hence that count of the complaint was dismissed for failure to state a claim. The court then acknowledged that the claim for assault and battery was a legitimate count but by virtue of the fact that the plaintiff had joined the act she later dismissed into the Divorce action, the claim re-brought here was to be dismissed for having been decided res judicata. Under CPLR 601(a) the parties to a civil action may join as many causes of action as they can think of arising out of the same set of facts or occurrences. However once that is done and a party has had a full and fair opportunity to contest the issues, then res judicata principals bar a re-litigation of those issues.

The Court held that societal needs and logic (logic in a Mat litigation... hmm... what a concept!) and the desirability of ending spousal litigation mitigated in favor of the court having a rule that interspousal tort actions seeking to recover damages for Personal Injuries commenced subsequent to and separate from a divorce action are barred by claim preclusion.

The lesson here is that tort actions for Personal injuries sustained during the marriage should be part of the Divorce action itself especially where the allegations in the Divorce c/a are virtually identical to the allegations in the P.I. action. Hence the case signals that the original divorce pleadings should be clear concise and inclusive of every potential c/a available to the pleader. The court noted that its ruling is likely to upset the matrimonial bar's apple cart, but also noted that had Chen raised the issue at the Matrimonial trial, she could have preserved the issue affirmatively to survive after the stipulation had been signed.

Criminal and Federal Evidence Law Tomorrow.

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