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Why Sorry is the Badest Word…
An expression of regret or an apology by a Defendant is nothing new when a case doesn’t settle and finally makes it to trial. However, should this be allowed? Why no!
Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with a civil case not seeking punitive damages. Whether one is sorry or not for injuring a person constitutes neither a defense, nor is it relevant to any issue concerning whether or not to grant compensatory damages. The sole purpose of making such a statement to a jury is to encourage them to return a reduced verdict because the Defendant is sorry about what happened and is really a good guy. General appeals to sympathy or prejudice on the part of a jury are inappropriate and should be prohibited by a trial court. The jury’s obligation is to render a verdict for just compensation, not to hear confessions or grant absolution. Their function is not to forgive, it is to fairly compensate one for their injuries. Only God can forgive.
Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue involving either liability or damages. See Rules of Evidence 402 and 403. See generally, King’s Indiana Billiard Co. v. Winters, 123 Ind. App. 110, 127, 106 N.E.2d 713, 721 (1952). So cut this tactic off with a pretrial motion in limine. Otherwise you may be sorry you didn’t.
The Problem with Problems.
So do you want to know what the problem is with problems? Most people are like an ostrich with its head buried in the sand in fear of what they might see. We all have a tendency to ignore our problems and procrastinate. This is fatal thinking or à total lack of thinking.
Instead of waiting until the last second before the trial starts or the evening before your closing argument, look for problems as well as inspiration the first day the case comes into your office. Continue to hunt for inspiration and problems as the case progresses. Attorneys should not wait until the last moment to prepare their opening statement or closing argument. This is often too late and provides little time to use your creativity as an attorney and advocate for the client.
I always keep an electronic document with a list of inspirational quotes, analogies and arguments. I also have a list of potential problems and issues that I need to address as the case progresses through litigation towards trial. For example, if during the course of my client’s deposition unfavorable evidence arises about my client’s background or character, I make careful note of the same on my list of problems and issues so that I can deal with it at the time of trial.
So how do you deal with such problems? You may be able to exclude the evidence with a motion limine under Rules of Evidence 403, 404, 405, 608, 609 or 610, 702 or 802. If the problem can be addressed in jury instructions, research the law and carefully draft a proper instruction to submit to the court address the issue (such as pre-existing conditions).
If neither of these strategies has a chance of success, then I have to figure out a way to discuss the problem upfront and lessen the evidence’s impact with the jury. See my article: Direct Examination and Airing Your Dirty Laundry. Most evidence has a double edge to it. If the other side is engaging in character assignation point out the tactic and explain why the jury is being misdirected from the real issues in your case. See my article on Distraction, Misdirection and the Art of Verbal Jujitsu.
I will raise such problems during jury selection and find out which of the jurors cannot put the problem aside or deal with it fairly. If possible, I will get juror to admit that they cannot be a fair and impartial juror and then try to have them removed for cause or use a peremptory challenge to strike the juror from the venire.
I will raise the problem on direct examination and outline any mitigating circumstances favorable to my client and explain how the transgression occurred. I don’t wait for redirect and give my opponent the first shot at framing the issue.
Honesty, is the best policy in dealing with such problems. Remember, everyone is human and no one is perfect. The jury will understand if you admit your problems and you don’t run away from them. Just deal with it. Likewise, if I receive inspiration for a good argument, analogy or quote, I will send myself an e-mail or text message so that I don’t forget it.
So don’t let your problems, be the problem. Be proactive and creative. Do not procrastinate and brood.
Motion in Limine: An Effective Pretrial Tool and Weapon (Part 5)
Here are a few additional topics to cover in your motion in limine to keep red herrings from finding their way into your case:
EXPRESSION OF REGRET OR APOLOGY BY DEFENDANTS
Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with the above-referenced matter, as whether one is sorry or not for injuring a person constitutes neither a defense, nor is it relevant to any issue concerning whether or not to grant compensatory damages. The sole purpose of making such a statement to a jury is to encourage them to return a reduced verdict because the Defendants are sorry about what happened. General appeals to sympathy or prejudice on the part of a jury are inappropriate and should be prohibited by this Court. Also, I.C. 34-43.5-1-4, Prohibited admission of communications of sympathy, provides:
Sec. 4. Except as provided in section 5 of this chapter, a court may not admit into evidence a communication of sympathy that relates to causing or contributing to:
(1) a loss;
(2) an injury;
(3) pain;
(4) suffering;
(5) a death; or
(6) damage to property. [Emphasis Added].
Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue in this cause. See Rules of Evidence 402 and 403. See generally, King’s Indiana Billiard Co. v. Winters, 123 Ind. App. 110, 127, 106 N.E.2d 713, 721 (1952).
OFFER OF PAYMENT OF MEDICAL AND SIMILAR EXPENSES
Defendants should be prohibited from introducing any evidence of offers to make payments of medical expenses or similar costs. Rule 409 of the Indiana Rules of Evidence specifically prohibits such evidence. It provides that:
Evidence of paying or furnishing, or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury, or damage to property is not admissible to prove liability for such injury or damages. [Emphasis Added].
Any references made to this effect should not be permitted. Simon v. Clark, 660 N.E.2d 634, 1263 (Ind. Ct. App. 1996). Also, such evidence is calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue in this cause. See Rules of Evidence 402 and 403.
DELAY IN OBTAINING SURGERY AND CLAIMS OF FAILING TO MITIGATE DAMAGES
The defense has raised the affirmative defense of mitigation and may assert that Plaintiff has failed to mitigate his damages by not having surgery performed. The affirmative defense of failure to mitigate damages has two elements, both of which the defendant must prove by a preponderance of the evidence:
(1) the plaintiff failed to exercise reasonable care to mitigate his or her post-injury damages, and
(2) the plaintiff’s failure to exercise reasonable care caused the plaintiff to suffer an identifiable item of harm not attributable to the defendant’s negligent conduct.
Willis v. Westerfield, 839 N.E.2d 1179, 1188 (Ind. 2006). When a defendant seeks a failure to mitigate damages instruction based on a plaintiff’s failure to follow a treating doctor’s recommendations, whether expert medical opinion testimony is required is to be determined on a case-by-case basis. Willis v. Westerfield, 839 N.E.2d 1179, 1182 (Ind. 2006). Expert testimony is required where the question involves medical factors beyond the common knowledge of the layman such that the jury could only speculate in its findings. Willis, 839 N.E.2d at 1188-89. Here, the testimony of the treating physician has established that Plaintiff’s decisions concerning the course of his treatment to be reasonable. There is no testimony from any doctor that Plaintiff’s decision to delay surgery at this point in time is unreasonable or has resulted in probable harm to him. As such, any argument to this effect should be prohibited because such argument requires expert testimony.
MENTION OF WRITE-OFFS, DISCOUNTS AND REDUCTIONS
The defense should be prohibited from making any mention of write-offs, discounts and/or reductions as to Plaintiff’s past or future medical bills, as no such reductions/deductions have occurred and any evidence of the same is speculative in nature. There is no proof that this is likely to occur in the future. This information would simply cloud the issues in the present case and lead to distracting and confusing side issues. Ind. Rule of Evid. 403.
Keep these topics in mind next time you file a motion in limine. You may thwart an attempt to confuse and mislead a jury by the defense.
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