Steps in Presenting the Personal Injury Case

Steps in Presenting the Personal Injury Case

Preaction Discovery

To frame complaint

To preserve evidence

To identify party

Real Evidence – Viewing Location

A jury may view a location if it would be helpful to determine a material factual issue.

The jury must be supervised by a court person, be kept together, and no discussion or argumentation by counsel is

permitted at the view.

Courtroom Procedure – Laying a Foundation

Laying a foundation means providing the court with the factual basis to make a ruling on admissibility.

Leading questions can be used to establish foundation facts, since they are preliminary in nature.

Real Evidence - Foundation

If an item is not unique, a chain of custody must be established by having all those who handled the item identified it and testify it is unchanged.


A strict proof of chain of custody is required only when the article is fungible.

Reasonable limits are placed on the need to produce each link in a chain of custody of fungible items.


The condition is substantially unchanged.


“Reasonable assurances, based on the circumstances”, establishing the item's

identityand unchanged condition

are sufficient.

Example of preaction disco

Rodriguez D&I

Reenactment

Photographs

Still, video

Foundation

Photograph - Foundation

A person familiar with the subject of the photograph testifies that the photograph is a fair and accurate depiction of the subject.

Videotapes, Illustrations - Foundation

Videotapes, illustrations, and other depictions are admitted with the same foundation.

Videotape - Foundation

A videotape may be authenticated by the testimony of a witness to the recorded events or of an operator or installer or maintainer of the equipment that the videotape accurately represents the subject matter depicted.

Videotape - Foundation

Testimony, expert or otherwise, may also establish that a videotape "truly and accurately represents what was before the camera".

Preaction Discovery

Witnesses

Admissions

Prior Inconsistent Statements

Written statements

Videotape

Audiotape

Foundation of Admissibility

Admission

Where a party makes a statement against his interest, it is admissible as an admission, even though the statement was based on hearsay.

Admission

If the employee has authority to speak for the party, the statement is an admission

even though it was not made from personal knowledge.

Admission

14 Q Have you spoken to anybody since

15 the time of the accident concerning who Ferrara

16 had purchased that particular machine from?

17 A I believe someone came asking some

18 questions at some period of time.

19 Q Do you recall telling them that

20 the machine had been purchased from National

21 Equipment Company on Bruckner Boulevard in the

22 Bronx?

23 A I believe, yes. At the time, we

24 did purchase a number of pieces of equipment

25 from National, so I just assumed that this was

2 one of the pieces that came, but we couldn't

3 find any records.

Prior inconsistent statements

Two statements are inconsistent if they create different impressions.

Evasive answers, lack of recall, or silence, may make a statement inconsistent.

If the witness does not recall a fact, a prior statement where he did recall the fact is not inconsistent.

Use of Prior Inconsistent Statement

To refresh the recollection of the witness.

Written prior inconsistent statements, once authenticated, can be offered as extrinsic evidence that the statement was made.

Foundation – Oral prior inconsistent statement

If oral, the witness must be asked whether he made a statement at a particular time and place, and to a particular person.

Proving Prior Statement

A witness can be called to testify that a prior inconsistent oral statement was made.

Vanessa Mangual, duly sworn, hereby deposes and says:

On August 10, 1995, I visited the Brooklyn plant of Ferrara Foods & Confections, Inc., accompanying Andrew Bersin and Mr. Cirro Rodriguez. I was investigating an accident involving Mr. Rodriguez.

I spoke to Mr. Edward “Eddie” Scoppa, the manager of Ferrara Foods & Confections. He stated that the machine Mr. Rodriguez was working on at the time of his accident was a Tonnaer dough mixing machine. I was told by Mr. Scoppa that Tonnaer was no longer in business.

Mr. Scoppa unequivocally stated that he bought the machine in 1978 from National Equipment Corporation located on Bruckner Boulvard, Bronx, New York. I wrote down the information as he made his statement.

Past Recollection Recorded - Foundation

the witness observed the matter recorded,

the recollection was fairly fresh when recorded or adopted,

the witness can presently testify that the record correctly represented his knowledge and recollection when made, and

the witness lacks sufficient present recollection of the recorded information.

Evidentiary value of notes

The memorandum is not independent evidence of the facts contained therein, but is supplementary to the testimony of the witness.

The witness' testimony and the writing's contents are to be taken together and treated in combination as if the witness had testified to the contents of the writing based on present knowledge.

Present Recollection Refreshed or Prior Consistent Statement if Recent Fabrication Suggested

Foundation – Written Statement

If written, the witness must be shown or read the statements, and it must be marked in identification. If signed by the witness, the signature must be shown to him.

Foundation – Written Statement

If the witness admits signing the statement: inconsistent portions may be admitted in evidence on the issue of credibility.

If he denies signing the statement: the genuineness of the signature may be proven.

Tape Recordings - Foundation

A participant testifies that it accurately and fairly reproduces the conversation.

M. Tonnaer-Peters, being duly sworn, deposes and says:

I am a principal in Tonnaer Machines BV. Our company sells dough mixing machines.

My father-in-law J. Tonnaer was the owner of Machinefabriek Tonnaer N.V., which also sold dough mixing machines. The machine apparently involved in this case involving an injury to Mr. Rodriquez is, according to the name plate which I have seen in a photograph, manufactured by Machinefabriek Tonnaer N.V.

Machinefabriek Tonnaer N.V. filed for bankruptcy in 1974. It stopped doing business at that time. J. Tonnaer died in 1991.

I am familiar with the business of my father-in-law. I am in the same business.

I know that Machinefabriek Tonnaer N.V. had a business relationship with National Equipment Corp. in the State of New York. They distributed products for Machinefabriek Tonnaer N.V., such as this dough mixer. To my knowledge National Equipment Corp. is the only business in the United States that had a business relationship with Machinefabriek Tonnaer N.V. National Equipment Corp. was the U.S. distributor for machines manufactured by Machinefabriek Tonnaer N.V.

________________________

M. Tonnaer-Peters

Steps in Evaluating Admissibility – Relevance

Does the evidence have a tendency to make the existence of a fact more or less probable.

Steps in Evaluating Admissibility – Relevance

If so, is that fact material to the case.

If so, is the probative value outweighed by the dangers of prejudicing or misleading the jury.

Steps in Evaluating Admissibility - Weighing

Steps in Evaluating Admissibility - Dangers

Does the evidence arouse passion or prejudice out of proportion to the probative value of the evidence

Steps in Evaluating Admissibility – Danger Examples

Does the evidence create an undue tendency for the jury to decide on an improper basis, such as hostility or sympathy.


Is the evidence likely to confuse or mislead the jury.


Does the evidence create a collateral issue which requires a mini-trial in itself to prove

Steps in Evaluating Admissibility – Limiting Instruction

If the evidence does arouse passion or prejudice, can the court give a limiting instruction to eliminate the problem created by the evidence

Appellate Division Decision

Sources

Police

Workers Comp

Documents

Government Documents (OSHA, NHTSA, CPSC)

Medical records

Prior Testimony

Documentary Evidence – Business Records - Foundation

A witness testifies that:1. the record was made in the regular course

of business, and2. is the regular course of business to make

the record, and 3. the record was made at or about the time

of the event being recorded. 4. the document offered is the original writing,

or an accurate photocopy of the original.

Documentary Evidence – Business Records - Digital

Faxes and computer printouts may be admissible under the business record rule.

Documentary Evidence – Business Records - Unavailable

If a document is unavailable, it's absence must be explained, and then oral testimony may establish the contents of the writing, as long as the witness can recite with reasonable accuracy the contents of the document.

Documentary Evidence – Business Records – Accident Report

An accident report prepared by an employee is admissible if:

it is established to be a business record.

There is a split in the Appellate Division's as to whether self-serving statements in an employee's accident report are admissible as business records.

Documentary Evidence – Motor Vehicle Accident Report - MV104

must be certified, and

can be admitted only by the opponent, not by the party who prepared it

Documentary Evidence – Police Accident Reports

Admissible as business records to the extent of

the police officers own physical observations,

admissions by any party, or

prior inconsistent statements by a non-party witness.

Documentary Evidence – Police Accident Reports – Statements in

For a statement in the police report to be admitted:

The source of the information in the report must be specifically stated, either in the report or by the police officer on the stand.

Vague identification of the source is not sufficient. Exculpatory statements by a party are not admissible.

Documentary Evidence – Police Accident Reports - Diagrams

Diagrams in a police report are admissible if:

based on the officer's personal observations, as long as the observations were made prior to the movement of items (vehicles) in the scene.

Documentary Evidence – Police Accident Reports – Conclusions/Opinions

Conclusions or opinions of the police officer are not admissible.

Evaluations of credibility by the police officer are not admissible.

Documentary Evidence – Police Accident Reports – Conclusions/Opinions

Opinions as to how an accident occurred are not admissible, and

opinions as to contributing factors causing an accident are not admissible,

unless based on the police officers personal observations.

Documentary Evidence – Police Accident Reports – Opinion

Opinions of the officer may be admissible

if based on expert analysis of observable physical evidence.

OSHA

Complaint

Records

Admissibility

OSHA Regulations – Judicial Notice

A court may take judicial notice, without request, of ordinances and regulations of officers, agencies, or governmental subdivisions of the state or of the United States.

Upon request, the court must take judicial notice of such ordinances and regulations, as long as the party requesting judicial notice furnishes the court with sufficient information to enable it to comply with the request.

OSHA Regulations - Judicial Notice

Courts must take judicial notice of the Administrative Code of the City of New York, regulations of the US. Occupational Safety and Health Administration, the Consumer Products Safety Commission, National Highway Traffic Safety Administration, and the like, upon request and receipt of adequate information.


The party must give the adverse parties notice of intention to request such judicial notice, in the pleadings or otherwise before trial.


A printed copy of a statute or other written law or ordinance, which is published by a government or commonly admitted as evidence of the existing law of courts in the jurisdiction, is prima facie evidence of such law.

Statutes

Courts must take judicial notice of the law and statutes for New York state.

Codes, Rules and Regulations

The court is required to take judicial notice of the official compilations of codes, rules, and regulations of New York state and of all local laws and county acts

Regulations (Standards - 29 CFR) Bakery equipment. - 1910.263

1910.263(e)(1)(viii)

Every mixer shall be equipped with a full enclosure over the bowl which is closed at all times while the agitator is in motion. Only minor openings in this enclosure, such as ingredient doors, flour inlets, etc., each representing less than 1 1/2 square feet in area, shall be capable of being opened while the mixer is in operation.

OSHA Violation

OSHA Violation

OSHA

OSHA Violation

OSHA Violation

OSHA

OSHA Notes

Damages

the plaintiff may show his injury to the jury so that they may decide the extent and nature of the injury.

Example

Documentary Evidence – Hospital records

A hospital record is admissible if:

It is subpoenaed

The original, or a certified copy is sent to the medical records clerk of the court in a sealed envelope.

Documentary Evidence – Hospital Records – Statements in

Statements in the record as to the cause of an injury are not admissible unless

needed by the medical provider to diagnosis or treat the patient.

Documentary Evidence – Hospital Records – Statements in

A statement in the hospital record must be

specifically attributed to a party,

either in the record or

by a witness to the statement.

Documentary Evidence – Hospital Bill

A hospital bill is admissible and prima facie evidence of the facts contained if:

it is certified by the hospital's billing department as correct, and

it states that each of the items was necessarily supplied, and the amount charged is reasonable.

Documentary Evidence – Doctor’s Office Records

A doctor's office records are admissible if:

It is established they are business records.


Medical opinions and conclusions in the office records are admissible

if germane to diagnosis and treatment of the patient.


Illegible or cryptic notations are not admissible, absent explanation by the creator or his staff.

For an admission in such medical records to be admissible, the source must be clearly attributable to a party.

Doctors Office Records

Expert Opinion - Foundation

1. To reach the opinion or conclusion, a lay juror would need to have special knowledge, skill, or training which is beyond his ordinary experience;

2. The witness is an expert in a particular field;

3. The witness has a reasonable degree of certainty regarding his or her opinion or conclusion; and

4. The witness describes the data on which his opinion or conclusion is based, or, in the alternative, answers a hypothetical question setting forth the underlying data upon which his opinion is based.

Basis For Opinion

1. Facts personally observed by him.

2. Facts communicated to him by another expert, which are reasonably relied on by experts in the field, such as a radiologist’s report.

3. Evidence admitted in the courtroom, which he has overheard. This includes deposition testimony and documents admitted into evidence, as well as courtroom testimony.

4. Information communicated to him in a hypothetical question which is drawn from evidence admitted in the trial.

Economist

An expert may give an opinion as to the present value of an award for loss of future earnings, provided a proper foundation is laid.

It is proper to admit expert testimony as to inflation, to assist the jury in calculating the amount of future damages in a personal injury action.

an economist may offer an opinion as to the market value of the type of services performed by the average housewife in the decedent’s circumstances.

Presenter

Presentation Notes

Testing

Economist

Public Records

Such records are prima facie evidence if:

The records are certified or authenticated by the entity providing the record.

Venue

Bronx, Kings, New York

Queens

Nassau

Suffolk

Courtroom Procedure

Once exhibits are admitted by the court, they may be reviewed by the jury, although the court may postpone the viewing for a more convenient time in the trial

Courtroom Procedure

Trial counsel cannot testify as to facts in a case, or placed his own credibility on the side of his client.

Courtroom Procedure – Making the Record

The court reporter cannot accurately record overlapped argument, or gestures. Names must be spelled, and evidence referred to by exhibit numbers.


Off the record, sidebar and chambers conferences will not be part of the record, so if a judicial decision is going to be made, it must be on the record to be appealable.


Stipulations as the evidence should be put on the record.

Courtroom Procedure - Objections

Evidence admitted without objection may be considered by the jury


Objections must give the court sufficient information as to why the evidence is inadmissible.


Objections to questions calling for inadmissible information must be raised before the question is answered.


A general objection can be error only if there is no grounds for the courts decision.


A specific objection on the wrong ground waives objections on other grounds


If the question was proper, but the answer provided improper inadmissible information, a motion to strike and instruction to disregard must be requested


Specific objections to a class of evidence do not need to be repeated.

Courtroom Procedure - Rulings

Rulings on evidence in a jury case should be made when raised. Admissibility on condition that subsequent facts are established may be made.


If the fact is not later shown, the objection must be renewed or it is waived.


An error by the judge is harmless unless there is a significant probability the jury would reach a different result had the error not occurred.


Evidence admitted over objection may be rebutted.


The court may cure improperly admitted evidence by admitting other irrelevant evidence.


Improper evidence elicited by the party harmed by it is invited error and not grounds for reversal.

Courtroom Procedure – Offer of Proof

For a judge's evidentiary ruling to be appealable, there must be an offer of proof as to what the evidence would be and why it would be relevant.

Courtroom Procedure - Offer of Proof

Unless the court explicitly permits a summary of a witness’s testimony by the attorney, the witness should be placed on the stand to constitute a proper offer of proof.

Courtroom Procedure - Offer of Proof

Documentary evidence should be marked for identification, even if the judge intends to exclude it.

Courtroom Procedure – Offer of Proof

Each ground for admission of the evidence must be articulated by the proponent.

Courtroom Procedure –

If the court foresees excluded or excludable evidence being heard by the jury, it may foreclose any testimony along that line.

Scientific Tests - Foundation

The results of scientific tests are admissible only if the procedure is generally accepted as reliable in the scientific community.


The test is not whether the procedure or technique is unanimously accepted, but whether it is generally accepted as reliable.


If the test is generally accepted as reliable, a foundation for the admission of the particular results of that test must still be established.