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Trial judges have a lot of leeway in deciding how a trial proceeds, and that includes being understanding of attorneys’ busy schedules. But a judge who made a defendant put on his medical experts before the plaintiff’s to accommodate the plaintiff’s lawyer’s vacation abused his discretion and deprived the defendant of a fair trial, a New Jersey appeals court says. The court, in Kim v. Gordon, A-5777, reversed a $55,000 verdict for the plaintiff on Thursday and sent the case back to Bergen County for a new trial. The juggling of witnesses resulted from the unavailability of the plaintiff’s experts at one end and the vacation plans of the plaintiff’s lawyer, at the other, leaving a narrow window for completion of the trial in progress. The appeals court said it recognized that it was common to take witnesses, particularly experts, out of order due to scheduling problems and that “trial lawyers are entitled to take their scheduled vacations.” However, “if the court wanted to accommodate plaintiff’s counsel’s vacation schedule, the appropriate resolution would have been to declare a mistrial, not to force the defense to present its case first,” said Appellate Division Judges Michael Winkelstein and Laura LeWinn, in an unpublished per curiam opinion. Whether the jury had been confused by the shuffling was speculative, but the judges refused to impose on the defendant the burden of proving confusion because “the order of presentation of witnesses was clearly capable of producing an unjust result.” The verbal-threshold suit arose from a four-car collision in South Hackensack, in November 2003. Jung Ho Kim, in the third car, claimed to have suffered a bulging back disk. He sued Ezekiel Gordon and Catherine McCormick, in the car ahead of him, and Myung Kim, who is unrelated, in the car behind. He later dropped the claim against Gordon and McCormick and went to trial only against Myung Kim. The trial was originally set for Feb. 14, 2007, but the plaintiff’s lawyer, Tracy Callahan, begged off because of a snowstorm the day before and then called in sick on Feb. 15 because of an allergic reaction. The trial was moved to Monday, April 23, but when the case was called, one of Callahan’s associates told Judge Joseph Conte that Callahan could not make it because of a meeting in New York. The associate also told Conte the plaintiff’s case would take one day. Callahan showed up on April 24 but told Conte that one of his experts would not be available until the next day, and that he planned to take the de bene esse testimony of the other on April 27 and play the videotape in court on the following Tuesday, May 1. Defense attorney Kevin Couch objected on the basis that Callahan’s scenario would require him to put his doctors on the stand before the plaintiff’s. Conte overruled the objection and agreed to Callahan’s plan. The parties then picked a jury. Later that day, Callahan informed Conte that his expert would not, in fact, be available the next day due to an emergency and suggested he testify the following Tuesday, May 1. The lawyers gave opening statements and Kim began his testimony but did not complete it by 5 p.m., when the court adjourned for the day. The next morning, Callahan for the first time told the court he had a prepaid vacation set to start on May 2 and would thus not be available after May 1. Couch moved for a mistrial, urging that he be allowed to put on his experts the following week, after plaintiff’s had testified. During the argument, Callahan noted that he had not taken a vacation since February 2005. “I certainly have no objection to him going on vacation,” responded Couch. “But the only way out of that without causing extreme detriment to me would be to . . . grant a mistrial at this time.” Conte agreed that “in a perfect world” plaintiffs should go before defendants. But he denied the motion, saying “unfortunately, the Plaintiff’s witnesses did not cooperate with the Plaintiff’s attorney and they’re all out of turn.” He then instructed the jurors that they would be hearing witnesses out of the normal sequence. Couch presented both of his experts that same day, April 25, and Kim came in the next day and finished up his testimony. The trial resumed on May 1, with Callahan calling one of his experts and playing the tape of the other. The jury handed up its verdict later that day. In reversing, Winkelstein and LeWinn held there was insufficient reason to reverse the usual order of proofs and no case law supporting it. They pointed out that New Jersey Rule of Evidence 703 allows an expert to support his opinion with facts or data made known at the hearing but, by going first, the defense experts were deprived of the chance to rely on the testimony of the plaintiff’s experts as well as that of the plaintiff, who had not finished testifying. Couch, of O’Toole & Couch in Whippany, was out of town and could not be reached for comment. Callahan, of Fishman & Callahan in Fort Lee, did not return a call seeking comment.

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