TRYING THE AUTOMOBILE CASE IN ALABAMA

By Will O. (Trip) Walton, III

TRIAL OF THE CASE

These Times They Are A-Changin -- Bob Dylan. Ten (10) years ago I don't think I would have ever considered filing a personal injury lawsuit without a jury demand. However, after many years of publicly debated tort reform and millions of dollars having been spent by anti lawsuit groups, you may want to give some consideration to avoiding the poisoned jury pool. Two of the most important factors to consider are prior verdicts from the venue where the case will be filed and knowledge of the local judges. In today's world you can get information on jury verdicts from each and every county, and a few well placed phone calls can help you find out everything you need to know about the local circuit judges. As a general rule, I still demand a jury trial if the case has a lot of heat with wanton or reckless conduct or punitive claims. On the other hand, if the case is worth less than $25,000 and is your garden variety soft tissue case, I will opt for a bench trial and if the defense decides to demand a jury, they pay the freight and you save a buck or two. At any rate, the number one determining factor of whether or not to demand a jury is the reputation of the venue and the value of the case.

As for expert witnesses, you are damned if you do and damned if you don't. I believe that experts are overused in simple motor vehicle accident cases; therefore, I typically do not use one unless the case has complex issues which actually require an expert. In my mind, to do otherwise simply insults the intelligence of the judge or jury and that ain't a good thing. Of course, there are cases where you may want to retain an expert immediately to consult with and teach you but not actually call the expert as a witness. In that regard, I generally always retain an expert in wrongful death claims against tractor-trailer companies due to the complexity of this type litigation and the need for someone to be point man regarding the initial investigation and discovery process. You may also run into the aggressive insurance carrier who wants to beat you down in a low impact/soft tissue case by hiring accident reconstructionists and biomechanical engineers who assert that the forces in the collision were insufficient to cause your client's injury. When this occurs, you have to make a decision. You may choose not to retain an expert and simply rely upon your trial skills at cross examining the defense expert, or you may choose to hire an expert to recreate the accident and determine whether the forces were sufficient to causethe injury, or you may retain experts to attack the defense expert and his methodology by asserting that the defense is nothing more than junk science and inadmissible under Frye and Daubert. If you attack the defense expert's methodology, you may wish to retain a biomechanical engineer, an epidemiologist and/or a mathematician with expertise in statistics to assert and show that the methodology of the defense expert is scientifically flawed. Quite frankly, if you have unquestioned liability, a credible client and credible medical treatment, you might consider bringing your treating physician to trial and simply stay out of the expert game. You can always make it appear that the defense is attempting to beat up on your client and your client's doctor and use this to your advantage. At any rate, when considering the use of experts, you must always keep in mind costs. After all, although you are in a profession to help those who have been injured, you must be cognizant of costs if you are going to be successful in the long run. Furthermore, your client will appreciate your services a lot more if you discuss these matters with the client as the decisions are being made.

Preparing your witnesses, whether expert or lay, may be the most important aspect of trial preparation. I don't care how great your opening statement or your closing argument, if you do not prove your case with your witnesses, you will not be successful. In other words, if you don't show them the beef, they ain't going to show you the money. With that in mind, take time to meet with and prepare your witnesses. You can always find time to meet with your lay witnesses after hours, during lunch or on the weekend. I also strongly urge you to meet with your client's treating physician for at least ten (10) to fifteen (15) minutes before a simple deposition, or in a more serious personal injury case, make an appointment to meet with the doctor several days in advance to review his treatment and let him know where you are coming from and what you need. Most physicians appreciate this meeting, and it allows you an opportunity to establish a rapport with one of the most important witnesses in your case. During your meeting with the treating physician, explain the need for him or her to be able to, within a reasonable degree of medical certainty, give a prognosis as to future problems the plaintiff might expect to suffer and stress the importance of an impairment rating. Many times if you have not previously discussed these matters with the treating physician and simply ask it at deposition, he or she will not know how to respond and additional depositions may be required which will cost you more money. It is also good at the pre-deposition meeting to go over any medical illustrations or other models you intend to use so that the doctor will be familiar with them at deposition and know where you are going. Furthermore, because it is rare that you can get the treating physician to come to trial (do it if you can), I highly recommend videotaping all medical depositions unless the doctor is simply horrible.

As for lay witnesses, I recommend using as many as possible (up to ten) to show how your client has suffered and the changes the injury has caused to the plaintiff's life. Although the plaintiff can touch on these subjects, you cannot let your client be a whiner. Jurors do not like whiners; therefore, let your lay witnesses do the whining for your client. In that regard, I recommend co-workers (get your client back to work unless he or she is permanently disabled or sustained a catastrophic injury), neighbors, friends or family members who have driven your client to physical therapy or cooked and cleaned for your client for some period of time due to the injuries received in the collision. Remember, by the time your case gets to trial, your client will probably look as healthy as any of the jurors deciding the case. Therefore, for the plaintiff to take the stand and whine about injuries that occurred eighteen (18) months prior is simply not good and will turn off the modern day juror.

Presenting evidence at trial can be done several different ways. If you or your firm has the wherewithal to do it, a high tech presentation with computers and the like can be very effective. In fact, because the defense will rarely match a high tech presentation in a motor vehicle accident case, the jury immediately thinks that the plaintiff is better prepared and that the lawyers for the plaintiff care a great deal about their client and the case. However, if you do not have the wherewithal to go the high tech route, don't despair. There are many different types of demonstrative evidence, especially medical evidence, that are very informative and will have the jury leaning your way. Furthermore, if your client's injury is real and credible, a well prepared attorney can demonstrate the injury through a competent medical expert along with informative and dynamic visual aids. Remember, a jury will not adequately compensate your client if they are not taught the mechanism of the injury and the symptoms it causes. Therefore, I recommend that you keep it as simple as possible, as short as possible, and as visual as possible.

As you work through the discovery process in a case, you should always be on the lookout for matters that need to be addressed by motions in limine. There are primarily three (3) areas of concern in a motor vehicle case for these type motions. The first is to limit or exclude the testimony of the defendant's witnesses, the second is to prevent outrageous behavior on the part of the defense attorney, and the third is to keep out inflammatory evidence. The use of motions in limine as a preemptive strike before trial can be critical. The following list is a few of the issues that you may want to address with such a motion: (a) exclude photos in low impact cases, (b) exclude previous accidents, (c) exclude previous personal injury claims, workers' compensation claims, or disability claims, (d) exclude evidence of highly prejudicial criminal convictions, (e) exclude evidence of alcoholism and/or drug addition if no alcohol or drug use at time of collision, (f) exclude evidence of alcohol or drugs in plaintiff's blood or urine if liability is not at issue, (g) exclude evidence of possession of marijuana or other illegal drugs if liability is not at issue, (h) exclude testimony of biomechanical engineer as junk science, and finally (i) exclude or prohibit improper comment during voir dire, opening statement and/or closing agreement based on transcript of opposing counsel at prior trials. Because the average juror arrives at the courtroom with less than an open mind, it is important to limit the negative information the juror receives so that the defense cannot feed upon jury bias.

Another motion you may wish to consider is a motion for partial summary judgment regarding the issue of liability. If liability is clear, take the issue away from the jury, particularly in low impact cases. Again, jurors typically come to the courtroom with a mindset that is not open to the plaintiff; therefore, if liability is clear, take the issue away from the jury and try the injury/damages portion of your case. Assuming you are successful at trial, I would strongly urge you to file a motion to recover deposition costs and related expenses associated with depositions of treating healthcare providers. Lawyers who handle small personal injury cases need to recover these expenses in an effort to increase the net recovery to the client. Furthermore, motions to tax costs against the defendant will increase the cost to defend the case and whether you believe it or not, insurance carriers are extremely in tune with the cost of litigation. Therefore, file your request for admissions concerning medical expenses, medical records, etc., and when they are summarily denied and you are required to take depositions, always file the appropriate motion with the appropriate affidavit attached thereto requesting that the loser pay your costs.

If after trial you are unsuccessful and in your best judgment there were no adverse rulings from the bench from which you can appeal, I suggest that you meet with the client and put the matter to rest. There is simply no need in throwing good money and time after bad. However, this does not mean that you should not protect your trial record. I typically try to anticipate most, if not all, trial objections and research those specific areas of the law and/or procedure prior to trial. You can usually see them coming if you have been preparing the case for trial. Hence, I typically have a page or two in my trial notebook with objections and the accompanying rule to protect the record. You should also be prepared to make an offer of proof if the defense makes an objection to your witness or proposed testimony and the court upholds said objection. Simply request that you be allowed to make an offer of proof outside the presence of the jury. I would then tell the court what I expect the witness to say, and I would further attempt to put the witness on the stand and elicit his testimony so that the appellate court will see exactly what the witness would have testified to if the court had not excluded the witness. Therefore, an offer of proof is extremely critical in protecting the record regarding excluded witnesses and their testimony.

If you win and the defendant appeals or if you lose and there were adverse rulings which crippled your ability to effectively prove your client's case, go ahead and take it up. If you are not familiar with the appellate process and you are not a brief writer, I would strongly urge you to hire someone or have a knowledgeable attorney consult with you regarding the appeal. A lot of firms who make their bread and butter on personal injury claims have lawyers who do nothing but write briefs and motions so they are prepared to go full steam ahead. However, if you are a sole practitioner or with a smaller firm that has little or no appellate experience, it will save you a lot of time and headaches to farm out the appeal or have someone with experience consult with you throughout the process. Furthermore, if all else fails and you are stuck doing the appeal, you must get out the Alabama Rules of Appellate Procedure (the most up-to-date version) and become familiar with them immediately. There are time limitations, there are size limitations, and there are certain other specifications regarding the brief that you must know in order to successfully maneuver through the appellate process. Good luck.