As a Plaintiff’s attorney you want to identify jurors who will refuse to follow the Court’s instructions directing the grant of money damages for pain and suffering. I inadvertently found something that is even more polarizing and controversial than claims for such intangible losses… Loss of consortium!
I was picking jury in a rural county and questioned jurors about our claim for loss of services, love and affection . My concern was that religious jurors might feel that when you marry someone it is for “better or worse, for richer or poorer, in sickness or health till death do you part” thereby disqualifying them for monetary compensation. I was also concerned that other people may consider it double dipping since the injured spouse would recover for interference with the marital relationship as part of their claim for loss of enjoyment of life.
To my surprise and the court’s, there were so many jurors who stated they could not follow the law on this point and were unable to fairly consider such a claim, that we nearly ran out of jurors to empanel.
So include a claim for loss of consortium when supported by the evidence. It may be your best barometer for finding and eliminating for cause, jurors who cannot follow their oath and fairly compensate your client and their spouse for all their harms and losses.
You have a wrongful death claim and need an indisputable source of information to determine the minimum value of a human life. Wouldn’t it be nice if the federal government published minimum values for the loss of a human life? Well, they have! The U.S. Defense Department has made a conscious decision on this very disputed issue of value.
The federal government has determined that the minimum value attributable to the loss of one life is $250,000,000 (a quarter of a billion dollars). How can this be? Where can the supporting information be reviewed? Well, the F-22 Raptor costs approximately $250 million per jet, replacing the F-15 Eagle which costs $65 million each.
The federal government installs pilot ejector systems on every F-22 Raptor Jet fighter. The government does this to protect the pilot, not the plane. In order to save the life of a pilot of a Raptor F-22, the government chooses to sacrifice our most expensive combat jet airplane to insure the pilot lives to fly another day. The F-22 jet airplane costs $250,000,000 to manufacture. In spite of this huge cost, the federal government has chosen to install an ejector system to save the pilot’s life even though the ejection of the pilot will result in the certain and immediate loss of a quarter of a billion dollar jet airplane.
How about that… This analogy was raised some time ago by a trial lawyer by referencing the Eagle F-15. Well the minimum value for the loss of a human life has just gone up… at least in the eyes of the federal government.
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.
So you lose an evidentiary argument and the court allows some potentially prejudicial evidence to be presented for some narrow purpose such as bias, impeachment or to show intent, similar plan, motive or scheme. So what should you do?
Indiana follows “the rule of multiple admissibility” endorsed by the evidence treatises of both Whitmore and McCormick. Under this rule, evidence that is admissible for one purpose is admissible, even though it might be excluded from consideration by the jury if it was offered for another improper purpose. The opponent of the evidence is protected, not by exclusion of the evidence, but instead by the use of a limiting instruction. Indiana Evidence Rule 105 provides:
“If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.”
The party seeking to limit the evidence has the duty to request the instruction. Small v. State, 736 N.E.2d 742, 746 (Ind. 2000) (observing “a trial court has no affirmative duty to admonish a jury sua sponte as to such evidentiary matters”). As a result you should ask the court to specifically define the area of use and address inappropriate inferences or uses which are prohibited. Indiana Pattern Instruction No. 527 Evidence Admitted for a Limited Purposes states:
During the trial, I instructed you to consider certain evidence only for specific, limited purposes. You must consider that evidence only for those limited purposes.
Evidence relevant for some legitimate purpose, can only be excluded if it violates the precepts of Indiana Rule of Evidence 403. Under this rule, the danger of unfair prejudice has to substantially outweigh the evidence’s probative value in order to exclude it, thereby tipping the scales in favor of admissibility.
Keep these thoughts in mind the next time you need to limit the damage…
I never take on a new client without sharing the quote above with them. The most valuable component of any personal injury case is the client’s credibility… period, end of case. If you exaggerate or stretch your claim beyond the bounds of your evidence, then your client will lose credibility, devalue your client’s claim and lose their case.
The number one tactic most defense attorneys use to undermine a personal injury case, is to encourage the injured client to overstate or exaggerate their claim while under oath in a deposition or to omit their history of a past injury to the same portion of the body or to hide a prior collision or claim. The client thinks, “Why tell them, they may never find out.” However, they almost always do. The defense argues, “Why did your client do these things (they said they couldn’t do)? Simple… because they don’t have a legitimate claim.”
Honesty is not just the best moral policy, it is also the best economic policy when it comes to the value of a personal injury case.
So don’t forget the quote and don’t let your client forget it either.
The defense oftentimes wants to muddy the waters and misdirect or sway the jury away from a person’s cause with information that is irrelevant or unfairly prejudicial. Wrongful death cases are no exception and remarriage is one of those topics. Fortunately, Indiana court’s have joined the majority of jurisdictions which have prohibited such tactics by the defense as irrelevant and unfairly prejudicial.
The general rule in Indiana is that in a wrongful death action a right of action or an amount of recovery is not affected by the fact that the surviving spouse has remarried or contemplates remarriage. Wabash R. Co. v. Gretzinger (1914), 182 Ind. 155, 104 N.E. 69; Consolidated Stone Co. v. Morgan (1903), 160 Ind. 241, 66 N.E. 696; Gilmer v. Carney, 608 N.E.2d 709 (Ind. Ct. App. 1993); City of Bloomington v. Holt (1977) 172 Ind. App. 650, 711, 361 N.E.2d 1211(held motion in limine prohibiting mention of the fact, probability or possibility of remarriage of the plaintiff including with whom he is residing was proper). This restriction applies and restricts proof that a spouse is living with another person and applies regardless of gender. City of Bloomington v. Holt, supra.
The enactment of IC 34-4-36-1,2 concerning payments from collateral sources should not be read or interpreted as changing Indiana’s traditional common law view. The collateral source statute clearly addresses only evidence of monetary payments. Gilmer v. Carney, supra. Since statutes in derogation of the common law are to be strictly construed and should not be extended beyond their express terms or what they unmistakably imply, Indianapolis Power Light v. Brad Snodgrass, Inc. (1991) Ind., 578 N.E.2d 669, IC 34-4-36-2 should not be extended to embrace nonmonetary items such as remarriage. Id.
So be ready for this issue and address it in your pretrial motion in limine so that the defense is prohibited from throwing a skunk into the jury box.
A client or witness needs to be thoroughly familiarized with what it means to forget as opposed to not knowing something. If one says, “I don’t know,” something, it means it was never in their brain. “I don’t remember,” on the other hand, means that the information was once in their brain, but cannot be retrieved. At the time of trial, an, “I don’t know,” will be utilized to show that your client is lying. When in doubt, a client should answer, “I don’t recall,” or “I don’t remember,” as opposed to, “I don’t know.” If a client does not remember, you can salvage their testimony by either refreshing recollection under Indiana Rule of Evidence 612, or the information can be established as past recollection recorded under Indiana Rule of Evidence 803(5). These provisions are discussed below in greater detail.
Indiana Evidence Rule 612(a) provides: “If, while testifying, a witness uses a writing or object to refresh the witness’s memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.” Although this evidence rule contemplates the use of writings to refresh a witness’s memory, it “does not address the method by which the witness’s memory may be refreshed.” Thompson v. State, 728 N.E.2d 155, 160 (Ind.2000) (quoting 13 Robert Lowell Miller, Jr., Indiana Practice § 612.101, at 225 (2d ed.1995)), reh’g denied. In Thompson, the Indiana Supreme Court outlined the proper procedure for refreshing a witness’s recollection as follows:
The witness must first state that he does not recall the information sought by the questioner. The witness should be directed to look at the writing, and be asked whether that examination has refreshed his memory. If the witness answers negatively, the examiner must find another route to extracting the testimony or stop the line of questioning.
Thompson, 728 N.E.2d at 160 (quoting Miller § 612.101 at 226). In Thompson, the Court recognized that Indiana Evidence Rule 612 does not suggest, much less require, that a writing used to refresh a witness’s memory have been prepared by the witness. Id. at 160-61.
Indiana Evidence Rule 803(5) provides that the following is not excluded by the hearsay rule:
Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party.
Federal Rule of Evidence 612 provides that: if a witness uses a writing to refresh memory for the purpose of testifying, either-(1) while testifying, or (2) before testifying … an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing has matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto.
Rule 612 is applicable to depositions and deposition testimony by operation of Federal Rule of Civil Procedure 30(c), which governs depositions upon oral examination. See Federal Rule Civil Procedure 30(c) which provides that “[e]xamination and cross-examination of witnesses [during depositions] may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615”.
If used the document to refresh his recollection, the Court must still decide whether the “writing contains matters not related to the subject matter of the testimony.” Id.
The more significant a witness is to your case, the more important it often is to let the jury know exactly who they are. Usually, your client is one of the most important witnesses the jury will hear from during the course of trial. When dealing with such witnesses, I will generally cover age, where they live, personal background such as where they grew up, their family, their education and work experience, and any special qualifications which might bear on their credibility or believability as a witness. Such matters are typical covered at the beginning of the witness’s testimony. It’s difficult for someone on the jury to trust the person’s testimony; they may feel like they don’t really know them.
Keep in mind how you relate to people you meet. You typically look for connections and things you have in common. Don’t forget who your audience is. Is there information in your witness’s background that might establish such a connection with one or all the jurors? What in your witness’s background enhances their credibility? What would you want to know about your witness if you were a juror? Is there something in your witness’s background that might create empathy or understanding for any weakness they may have in communicating? Try to approach each witness with a fresh set of eyes.
Everyone admires someone who overcomes adversity or is hard-working. If there are things in your witness’s background which you can weave into your examination, make the jury went to cheer or root for them, then find a way to present such testimony subtly. A bit goes a long way so don’t beat the jury over the head with it.
When it comes to persons being called for minor matters such as establishing the foundational prerequisites for the admission of documents or other tangible evidence, it may not be as important or necessary to cover matters outside of the witness’s education, training, experience and job duties relevant to their position as a custodian of the document or item of evidence.
Has your client or witness, assuming it is a more significant witness, had involvement in civic or charitable matters? Have they held public office or been an officer in an organization which is positively viewed by the public at large? These sorts of connections help a juror bond with a witness or client. They are part of who the witness is. Everyone admires those who give back. It helps to show that the witness or client is part of the solution, not the problem. As noted earlier a bit of such testimony goes a long way so don’t overdo it.
I was looking for a program that could emulate the structure of my paper file system that I use for jury trials. I looked at several programs that were touted as the answer for use on my iPad. I looked at all the Apple App World had to offer to no avail. I download one such program and found it to be slow and cumbersome to navigate through. I needed something with multiple tabs that could take advantage of the iPad touch-screen to navigate quickly to pull up needed information. This has always been one of the limitations of a laptop… its hard to navigate and pull up information as fast as you can with a well-organized physical paper file. After giving up hope, I came across such app called simply “Outline” for the iPad. It will import “notebooks” from the Microsoft program One-Note for ready use on the iPad. Microsoft’s OneNote works well and is affordable. It costs about $15.00 and the OneNote is likewise affordable and is typically included as part of the Microsoft Suite of Windows Business Programs. The OneNote program was designed by Microsoft as a program that could be used by students to organize their class notes and research projects. It is similar to EverNote.
I usually set up and organize my case file in the OneNote program on my desktop at work and then transfer the file to my iPad using one of several applications or programs. The iPad app can be synced with your laptop or desktop computer by a number of means, including Drop Box and iTunes. The materials are all organized just like the hard copy of my files and you can paste either links to or an electronic copy of documents such as depositions, medical journals articles and pleadings for full review.
So such as, I have major categories of documents such as pleadings, correspondence, opening, closing, instructions, pretrial motions, jury selection, evidence research, law research, medical research, settlement demands, medical records, witnesses, defense expert, exhibits, investigation, etc. These categories are listed across the top and can be scrolled through side by side. Individual documents in each major group are shown as tabs on the side of the screen and can be scrolled through up and down with a touch of your finger. I organize the tabs on top and on the side alphabetically or numerically as the case may be for ready access. If you tap the page with your finger, the program will open that page.
On each page you can paste objects or links. These can consist of Word Documents, text files, PDF, audio recordings, photographs, and deposition transcripts. These can be tapped and viewed with other applications or through “quick view” which is compatible with most of your documents. Audio files can be played with other compatible applications you have installed on your iPad. You can also electronically “print” a copy of the file onto the page as well and scroll up and down the page and read it.
It not only gives you the capability of carrying your entire file up to the podium, it will allow you to take multiple files home with you in your brief case. I can take home what amounts to twenty or thirty banker boxes home with me on my iPad. The “Outline” program accommodates multiple “notebooks” which can be search for text individually or collectively. I even have a separate notebook set up with tabs for procedural and evidentiary research notes for ready reference at Court. Below is an example of how a notebook appears:
I hope you will try this system. It is quite amazing once you get the hang of it. It is a cost-effective solution that you can easily tailor to the way that you organize your trial and case files.
An exhibit sticker can do much more than identify an exhibit for the record. It can actually be used as an organizational tool to aid the jury in understanding what the exhibits are being used to prove, as well as, better understand your case and how it is being put together. When I was a federal prosecutor I handled a number of “complex” fraud cases and had to come up with my own system for tracking my evidence and proof for each count of the indictment and the various overt acts of the conspiracy count.
I used my indictment as a narrative tool to help the jury follow my evidence and cross-reference which exhibit helped prove which count and corresponded with the various overt acts in my conspiracy count. My conspiracy count was organized like a short story with each event (overt act) referenced on the exhibit sticker along with any separate substantive count for other the crimes separately charged.
For example, Exhibit 44 – OA (d) – CT 15 would tell the jury that the Exhibit 44 was being used to prove overt act (d) of the conspiracy count and Count 15 of the indictment. I would also annotate my copy of the indictment’s substantive counts. At the bottoms of each count on my copy of the indictment, I would list the witnesses that authenticated the exhibits, provided forensic testimony, or other supporting evidence as well as list the corresponding overt act of the conspiracy count. This allowed the jurors and court to easily follow my proof at trial. It also permitted me to easily address any motion for a directed verdict by specifically identifying the witnesses and evidence that proved each count.
By keying the overt act to the exhibit, the jury could easily move through the proof and see that I had established each count. The jurors had no trouble following my story. I numbered the exhibits in chronological order to fall in line with my overt acts. I numbered my counts chronologically as well. The jury could take the exhibits delivered to them by the bailiff which were submitted to them in numerical order and work through the indictment with little confusion. This would lead to rapid verdicts on very complicated cases. This also built up trust between the jurors and myself. They knew I cared about them and wanted to make their job as easy and efficient as possible. This system avoided confusion in the jury room. Using this numbering system with my organizational system discussed in my earlier post entitled: “How to Stay Organized During Trial” allowed me to gain control of the courtroom and the trust of the jury and judge.
One caveat, I would make sure you explain the system both in opening and closing, and ask the jurors to pay special attention. Invariably, jurors assume someone else will be taking down notes and fail to focus on your explanation. I learned this lesson the hard way when the only note taker on the jury was removed prior to deliberations and no one else had paid close attention to my explanation. The jurors sent a note to the judge asking for me to explain the numbering system again. The judge refused to honor the jurors’ request. Eventually, they figured out the system and made short work of the case.