Employee of Defendant is allowed to remain in court room

The Right of Corporate Representatives to Attend Trial

The exclusion of witnesses from the courtroom during trial represents a well-established procedural tool designed to prevent witness testimony from being influenced by hearing other witnesses testify. Trial courts possess discretion to exclude witnesses upon request, ensuring that each witness’s account remains untainted by knowledge of prior testimony. However, this general rule of witness exclusion contains important exceptions, particularly for corporate representatives designated to assist counsel in the defense of litigation. If you’re dealing with a no-fault insurance defense matter, an experienced attorney can help protect your rights.

In civil litigation involving corporate defendants, the entity typically designates an employee representative to attend trial proceedings, assist defense counsel, and make decisions on behalf of the corporation. Unlike individual defendants who have an inherent right to attend their own trials, corporate defendants can only participate through designated representatives. The question whether these corporate representatives may remain in the courtroom despite being potential witnesses, and whether they may communicate with defense counsel during trial, raises significant due process and fairness concerns.

New York appellate courts have long recognized that corporate defendants should not be placed at a disadvantage relative to individual defendants. Just as an individual defendant may remain in the courtroom throughout trial and consult with counsel, corporate defendants should enjoy the same rights through their designated representatives. This principle ensures equality of treatment between natural and corporate persons in civil litigation.

Case Background and Decision

Perry v Kone, Inc., 2017 NY Slip Op 01395

“However, a new trial is required due to the Supreme Court’s error in excluding a witness from the courtroom and in prohibiting the witness from communicating with defense counsel during the trial as to any matter. The witness at issue was an employee of the defendant and the representative it had designated to assist in the defense of this action. Under these circumstances, and in the absence of extenuating circumstances, the witness was entitled to remain in the courtroom throughout the trial (see Yellow Book of N.Y., L.P. v Cataldo, 81 AD3d 638, 639; American Print. Converters v JES Label & Tape, 103 AD2d 787; Carlisle v County of Nassau, 64 AD2d 15, 18-19). Further, the court’s decision to prohibit defense counsel from communicating at all with the witness, who was knowledgable about the technical aspects of elevator mechanics and maintenance that were the subject of the testimony of the plaintiff’s expert, compromised the defendant’s ability to assist in and present its defense (see People v Santana, 80 NY2d 92, 99; Carlisle v County of Nassau, 64 AD2d at 20). Accordingly, a new trial should have been granted in the interest of justice (see CPLR [*3]4404).”

Must the claim rep be relegated to the benches in Civil Kings? I have seen this line of cases previously and it makes sense.

Legal Analysis: The Corporate Representative Exception

The Appellate Division’s decision in Perry v Kone establishes clear principles governing the rights of corporate representatives during trial. The court found that the trial court committed reversible error by excluding the defendant’s designated employee representative from the courtroom and prohibiting communication between that representative and defense counsel during trial.

The court’s analysis rested on two independent grounds. First, absent extenuating circumstances, a corporate defendant’s designated representative is entitled to remain in the courtroom throughout trial. This right flows from the fundamental principle that corporate defendants should enjoy the same procedural rights as individual defendants. An individual defendant cannot be excluded from their own trial; similarly, a corporate defendant should not be denied the presence of its designated representative.

The cases cited by the court establish a well-developed line of precedent recognizing this principle. In Yellow Book of N.Y., L.P. v Cataldo, the Second Department reaffirmed that a corporate defendant’s designated representative may remain in the courtroom. American Print. Converters v JES Label & Tape and Carlisle v County of Nassau similarly recognized the corporate representative exception to general witness exclusion rules.

The court emphasized that this right applies “in the absence of extenuating circumstances.” While trial courts retain discretion to exclude even corporate representatives when specific circumstances warrant such exclusion, the mere fact that the representative may later testify does not constitute sufficient justification for exclusion. Courts must identify concrete reasons why the representative’s presence would prejudice the proceedings before overriding the corporate defendant’s right to have its representative present.

Second, and equally significant, the court held that prohibiting all communication between defense counsel and the corporate representative during trial “compromised the defendant’s ability to assist in and present its defense.” The representative in Perry possessed knowledge about technical aspects of elevator mechanics and maintenance—the very subjects addressed by the plaintiff’s expert testimony. Preventing defense counsel from consulting with this knowledgeable representative during trial effectively denied the defendant access to critical technical assistance necessary to respond to expert testimony.

This aspect of the decision recognizes the practical realities of complex civil litigation. Attorneys, while skilled in legal analysis and advocacy, often lack technical expertise in the subject matter of litigation. A corporate representative with specialized knowledge serves as an invaluable resource during trial, helping counsel understand technical testimony, identify inaccuracies or omissions in expert opinions, and formulate effective cross-examination questions. Prohibiting such communication handicaps the defense in ways that compromise the fairness of the proceedings.

Practical Implications for No-Fault Litigation

Jason Tenenbaum’s observation—“Must the claim rep be relegated to the benches in Civil Kings?”—raises an important practical question for no-fault insurance litigation. Claims representatives frequently serve as the insurance carrier’s designated representative at trial in Civil Court no-fault cases. These representatives often possess knowledge about the claim file, the carrier’s investigation, and industry practices relevant to the disputed issues.

The Perry decision provides clear authority that claims representatives should not be excluded from the courtroom or prohibited from communicating with defense counsel during trial. This principle applies with equal force in no-fault litigation as in other civil cases involving corporate defendants. The insurance carrier, as a corporate defendant, has the right to have its designated representative present throughout trial and available to consult with counsel.

For practitioners in Civil Court Kings County and other venues, this decision establishes that claims representatives are “entitled to remain in the courtroom throughout the trial” absent extenuating circumstances. Defense counsel facing motions to exclude corporate representatives should cite Perry and its predecessor cases to protect their client’s right to have a representative present.

The decision also has implications for trial strategy and preparation. Defense counsel should affirmatively designate the claims representative (or other employee) as the corporate representative at the outset of trial. This designation puts the court and opposing counsel on notice that the representative will remain present throughout the proceedings. When plaintiff’s counsel moves to exclude the representative as a potential witness, defense counsel should object and cite the corporate representative exception.

Furthermore, the prohibition against preventing communication between counsel and the corporate representative protects the defendant’s ability to mount an effective defense. In no-fault cases involving medical necessity, causation, or other technical issues, the claims representative may possess knowledge about industry standards, claim evaluation practices, or specific aspects of the claim file that prove valuable during trial. The ability to consult with the representative during plaintiff’s case-in-chief allows defense counsel to identify weaknesses in plaintiff’s proof and formulate responsive strategies.

Finally, the decision underscores that excluding corporate representatives and prohibiting attorney-client communication constitutes reversible error requiring a new trial. Trial courts that inappropriately restrict corporate defendants’ representative rights risk reversal on appeal, resulting in wasted judicial resources and additional litigation costs. This consequence should encourage trial courts to respect the corporate representative exception and permit defendants to exercise their procedural rights.

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