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
identity
and 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.
Relevance
If so, is that fact material to the case.

Steps in Evaluating
Admissibility - Weighing
If so, is the probative value

outweighed by the dangers of
prejudicing or misleading the jury.
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.
Danger Examples
Is the evidence likely to

confuse or mislead the jury.
Danger Examples
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, and
2. 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.
Business Records - Digital
Faxes and computer printouts may be

admissible under the business record rule.
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.
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.
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.
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.
Accident Reports – Conclusions/Opinions
Conclusions or opinions of the police

officer are not admissible.
Evaluations of credibility by the police

officer are not admissible.
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.
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.
Notice
 The party must give the adverse parties
notice of intention to request such
judicial notice, in the pleadings or
otherwise before trial.
Notice
 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
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.
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.
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.

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.
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.
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.
Courtroom Procedure – Making the
Record
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.
Courtroom Procedure – Making the
Record
Stipulations as the evidence should be

put on the record.
Courtroom Procedure -
Objections
Evidence admitted without objection may

be considered by the jury
Objections
Objections must give the court sufficient

information as to why the evidence is
inadmissible.
Objections
Objections to questions calling for

inadmissible information must be raised
before the question is answered.
Courtroom Procedure - Objections
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
Objections
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.

Steps in Presenting The Personal Injury Case

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Steps in Presenting The Personal Injury Case

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Steps in Presenting the Personal

The jury must be supervised by a court person, be kept

Laying a foundation means providing the

Leading questions can be used to establish

If an item is not unique, a chain of custody

A strict proof of chain of custody is required

Reasonable limits are placed on the need to

 The condition is substantially

“Reasonable assurances, based on the

A person familiar with the subject of the

Videotapes, illustrations, and other

 16 had purchased that particular machine from?

 17 A I believe someone came asking some

 18 questions at some period of time.

 20 the machine had been purchased from National

 21 Equipment Company on Bruckner Boulevard in the

 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.

 To refresh the recollection of the

 A witness can be called to testify that a

A participant testifies that it accurately and

Does the evidence have a tendency to

If so, is that fact material to the case.

If so, is the probative value

Does the evidence arouse passion or

Does the evidence create an

Is the evidence likely to

Does the evidence create a

If the evidence does arouse passion or

Faxes and computer printouts may be

If a document is unavailable, it's absence

An accident report prepared by an

it is established to be a business record.

There is a split in the Appellate Division's as to

must be certified, and

can be admitted only by the opponent,

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

The source of the information in the report

Vague identification of the source is not sufficient.

Diagrams in a police report are admissible

based on the officer's personal

Conclusions or opinions of the police

Evaluations of credibility by the police

Opinions as to how an accident occurred

opinions as to contributing factors

unless based on the police officers

Opinions of the officer may be admissible

if based on expert analysis of observable

 Courts must take judicial notice of the

 the plaintiff may show his injury to the

A hospital record is admissible if:

The original, or a certified copy is sent to

Statements in the record as to the cause

needed by the medical provider to

A statement in the hospital record must

specifically attributed to a party,