Evaluating personal injury cases: evidentiary issues

We have all handled cases that were billed a certain way only to collapse under scrutiny. It is one thing for a lawyer to spin evidence; it is an entirely different matter to successfully present your case to the jury. Never take a firm settlement position without having a good understanding of the ability of each side to present important evidence to the jury.

IMPORTANT WITNESSES

I once represented a family who had been mowed down by a vehicle in a crosswalk. While I had some great evidence that the intersection was dangerously configured, ultimately the case came down to whether the driver would support our theory of a dangerous crosswalk. Was the accident caused in part by the features of the crosswalk? When he took the stand, the driver initially came off as honest and sympathetic. However, he quickly unraveled. There were holes in his summary of his background. And then his account of the accident took on a mythical quality. It was just not believable. While my case looked decent on paper, and I had most of my ducks in order, under scrutiny, the case collapsed. In retrospect, the case was still born. The key witness could not carry the day.

Sometimes your case comes down to one or two critical witnesses. Having a good sense of how those witnesses will perform at trial is critical to your case evaluation.

For example, in a personal injury case, the testimony of treating physicians and other third-party experts is extremely important. While the parties typically retain their own professional experts, generally speaking, the non-retained experts will carry the day. You can have the best retained expert in the world, but his testimony won't help much if contradicted by the testimony of a seemingly objective, third-party expert witness. This is why it is so important to take the deposition of key, independent experts.

Similarly, it is important to know if a witness will actually show up at trial to testify. There is no substitute for live, compelling testimony. When taking a witness' deposition, it is good to ask whether the witness will be available for trial. Perhaps a witness will be on vacation. Or maybe the witness is moving out of state, beyond the subpoena power of the court. An important witness may be in failing health or even deceased. Knowing whether a witness can and will testify should factor into your analysis.

PHYSICAL EVIDENCE

Another important element affecting the case outcome is the ability to present the pertinent physical evidence. There are instances when this becomes a major problem for one party or the other. For example, in an auto products liability case, the subject automobile may have been scrapped, destroying important forensic data. In a tire failure case, the allegedly defective tire may have been disposed of. In a slip and fall case, there may be no direct, first-hand evidence of the allegedly dangerous condition. Having the ability to present the physical evidence may prove critical.

TRIAL GRAPHICS, PHOTOGRAPHS & VIDEO

We live in an age of visual communication. People digest information through digital images and video clips. Knowing your opponent's plans for presenting visual evidence is important. Has your opponent created a trial graphic to depict injuries? Are there photographs or video footage depicting the scene or injuries to be shown to the jury? Will the other side use animations or simulations to demonstrate how the accident occurred? This material can be powerful. It may even change your mind about the merits of the case.

I once tried a case against a major jet ski manufacturer involving a young girl who was brain damaged in a boating accident. We did not call the plaintiff to the stand. The defendant wanted to play her deposition testimony at trial. In response, we asked that the entire video deposition be played, and the judge agreed. The jury sat there in a large, cavernous, dim courtroom watching our charming, sweet and obviously brain damaged young client projected on a large screen, being grilled by the defense lawyers. That video testimony was powerful. The jury eventually awarded our client $22.5 million in compensatory damages.

It is now fairly common for accidents to be recorded on video. Everyone has a video recording device. Our kids' baptisms, birthday parties, bar mitzvahs, and sporting events are permanently documented through images and video footage. Many businesses, apartment buildings and homes are covered by 24-hour video recorded surveillance. In evaluating your case, make sure you've seen any video that will be presented to the jury.

Lastly, as plaintiff's counsel, make sure you have seen any sub rosa video or photographs capturing the plaintiff outside of court. I once had a brain damaged client who met me for the first time in the office using a wheelchair. He had gone to various medical appointments in that same wheelchair, all of which was documented. I took on the case just prior to trial. Although the client was clearly injured, I suspected he was not totally sincere about the extent of his mobility problems. Sure enough, I soon learned the referring lawyer had produced a photo of my client scaling a 20-foot high inflatable slide with his young son at a birthday party after the accident. Needless to say, that case didn't turn out so well. But knowing this in advance was critical. It certainly changed my view of the settlement value of the case.

DOCUMENTS

It is not unusual for parties to exchange hundreds if not thousands of documents in pretrial discovery. Sometimes, a party will produce or find a document that has the potential to dramatically alter the case. We've all seen smoking gun emails or social media posts that reveal the damaging truth. In one of the most famous civil cases of all time -- Grimshaw v. Ford Motor Company -- an internal memo showed that Ford engineers and executives had made the decision to forgo inexpensive design changes on the Ford Pinto that admittedly would have saved lives. This memo blew the case wide open. The result was the largest personal injury/product liability verdict of all time, which included $125 million in punitive damages.