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.
 Real Evidence - Foundation

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.
Real Evidence -
Foundation

 The condition is substantially

unchanged.
 Real Evidence - Foundation

“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.
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.
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.
Steps in Evaluating
Admissibility – Danger Examples

Is the evidence likely to

confuse or mislead the
jury.
Steps in Evaluating
Admissibility – 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:

2. the record was made in the regular
course of business, and
3. is the regular course of business to
make the record, and
4. the record was made at or about the
time of the event being recorded.
5. 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.
OSHA Regulations – Judicial
Notice
 The party must give the adverse
parties notice of intention to
request such judicial notice, in the
pleadings or otherwise before trial.
OSHA Regulations – Judicial
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
 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
 Documentary Evidence –
Doctor’s Office Records

A doctor's office records are

admissible if:

It is established they are business

records.
 Documentary Evidence –
Doctor’s Office Records

Medical opinions and conclusions in

the office records are admissible

if germane to diagnosis and

treatment of the patient.
 Documentary Evidence –
Doctor’s Office Records

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
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
 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
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
 Courtroom Procedure -
Objections

Objections must give the court

sufficient information as to why the
evidence is inadmissible.
Courtroom Procedure -
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.
Courtroom Procedure -
Objections

A specific objection on the wrong

ground waives objections on other
grounds
Courtroom Procedure -
Objections

If the question was proper, but the

answer provided improper
inadmissible information, a motion
to strike and instruction to
disregard must be requested
 Courtroom Procedure -
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.
Courtroom Procedure -
Rulings

If the fact is not later shown, the

objection must be renewed or it is
waived.
Courtroom Procedure -
Rulings

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.
Courtroom Procedure -
Rulings

Evidence admitted over objection

may be rebutted.
Courtroom Procedure -
Rulings

The court may cure improperly

admitted evidence by admitting
other irrelevant evidence.
Courtroom Procedure -
Rulings

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.
 Scientific Tests - Foundation

The test is not whether the procedure

or technique is unanimously accepted,
but whether it is generally accepted
as reliable.
 Scientific Tests - Foundation

If the test is generally accepted as

reliable, a foundation for the
admission of the particular results of
that test must still be established.