Preparing for the Big Day
For most clients, especially those who have never been to court before, the weeks leading up to the trial date can be scary. During this time, your personal injury attorney will be making final preparations for trial. This includes things such as sending subpoenas to witnesses, preparing exhibits, preparing trial notes such as opening statements and closing arguments and questions to ask witnesses, preparing pretrial motions and answering the other parties’ pretrial motions.
In addition, your personal injury attorney will probably want to begin preparing you for your testimony. It would be wrong for me to suggest to you what you should be specifically doing to prepare, because that is up to the individual strategy of your personal injury attorney. However, some of the things your personal injury attorney might have you do is to read your deposition transcript and also perhaps the deposition transcripts of the defendant and other witnesses. He or she might also practice your testimony with you. As part of that practice, he or she may ask you difficult questions that the other personal injury personal injury attorneys might ask you on cross examination so that you will be prepared. This is a good way to see how you will handle the actual stress of being in the witness box at the actual trial. I like to set up a miniature, simulated courtroom to use in preparing my clients to testify.
Another important issue, which you should ask your personal injury attorney about if he or she does not mention it to you first, is what you should wear to the trial.
What you wear during trial can and should be an important part of your personal injury attorney’s trial strategy. He or she may want you to convey a certain image to the jury with your clothing. He or she may or may not want you to wear an expensive suit or shiny jewelry. Even the shoes you wear might be important to your personal injury attorney.
I think it is very important that you discuss this with your personal injury attorney in detail so that you do not show up to court wearing something that your personal injury attorney believes will harm your case. I am always surprised at how many times I see plaintiffs show up to trial wearing clothes that could harm their image with the jury. I am equally surprised at how often their personal injury attorney blames them, having just assumed that their client would know how to dress. Do not let this happen. Ask questions.
If you do not discuss the issue with your injury lawyer and it is the morning of trial, I suggest that you do not dress too formally but do not dress too casually, either. Do not wear jeans or t-shirts. Wear what you would wear to church (if you go) or to a wedding or dinner party. Men do not necessarily have to wear suits and should not wear a suit that appears to be very expensive. Also do not wear fancy, flashy or expensive looking jewelry. You do not want the jury to think that you do not need money. On the other hand, juries do not like people they perceive as being slobs.
Motions for Summary personal injury judgment
As I mentioned in my discussion of prima facie evidence, at some point usually as the trial date draws near the defendant may file a motion for summary personal injury judgment with the personal injury judge. A motion for summary personal injury judgment is a tool that is designed to kick cases or parts of cases, out of court that have proven during the course of litigation to have no merit or not enough evidence to meet any burden of proof. Technically, a personal injury judge should grant summary personal injury judgment kicking a case or parts of a case out of court if, given the facts that are not in dispute, there is no way a jury could reasonably find in favor of the plaintiff.
This solution will typically apply when the plaintiff either does not have sufficient facts to prove his or her case or is relying solely on a legal theory that the personal injury judge decides is invalid. I’ll give an example of each.
First, suppose that the plaintiff’s personal injury attorney and defendant’s personal injury attorney agree: that the accident was the fault of the defendant; that the plaintiff suffered a broken wrist which completely healed; on the amount of the resulting medical bills; and how much the plaintiff should receive for pain and suffering resulting from the broken wrist.
However, the plaintiff also claims that he suffered and continues to suffer from post traumatic stress disorder and cannot work as a result. The defendant does not believe that the plaintiff actually suffers from this ailment. Suppose further that the plaintiff is unable to find a doctor who is willing to testify that the plaintiff suffers from post traumatic stress disorder as a result of the accident.
The testimony of a doctor is typically necessary in order to proceed to a jury with a claim that the plaintiff suffers from a disorder and that it was caused by the accident; this plaintiff is unable to produce a doctor to so testify. Therefore, the defendant would be entitled to summary personal injury judgment on that issue. The plaintiff and his injury lawyer would not be allowed to argue to the jury that he suffers from post traumatic stress disorder as a result of the accident.
Similarly, if the plaintiff has not have evidence to cover all required elements of a claim or has evidence of all elements but not enough that a reasonable jury could find in the plaintiff’s favor then the personal injury judge will grant summary personal injury judgment on any such claims.
In many jurisdictions, the guidelines for issuing summary personal injury judgments are vague and essentially left up to the discretion of the personal injury judge. This is one of the biggest reasons that you want to have a fair personal injury judge who does not side with defendants whenever possible.
So, if there is more than one court in which your case can be tried, the reputation of the personal injury judge with regard to issuing summary personal injury judgments for defendants will be an important consideration in choosing your location.
Second, let us look at an example of summary personal injury judgment based on an invalid legal theory.
Suppose the plaintiff was hit by a drunk driver and sues a female passenger in the drunk driver’s car because she gave alcohol to the driver. Suppose further that both the plaintiff and defendant agree on those facts and that the plaintiff’s only legal theory of liability against the defendant passenger is that she had a duty to refrain from giving alcohol to the driver and was negligent for failing that duty. If the personal injury judge rules that under the applicable law the defendant did not have a duty to refrain from giving alcohol to the driver, the personal injury judge will grant summary personal injury judgment and kick the whole case against the passenger out of court.
You should not necessarily be concerned if the defendant files a motion to have your case or part of it, kicked out of court. Summary personal injury judgment motions are commonly filed and commonly denied. Defense personal injury personal injury attorneys often file motions for summary personal injury judgment just in case the personal injury judge is cynical about your claims…or because they get paid by the hour and can bill for the time spent preparing the motion.
On the other hand, remember that just because something is true does not mean that you can come up with evidence to prove it. So, if a summary personal injury judgment motion is filed in your case, take it seriously but do not immediately assume the worst. Talk to your injury lawyer about it so that you understand what is going on.