We left off talking about the opening statement in a car accident personal injury trial. This article will focus on the direct and cross examinations of the parties.
Direct examination will be the first time the jurors will begin receiving evidence in a case. If you have watched TV or movies you will recognize direct exam when the lawyer calls a witness to the stand. In a Charlotte personal injury trial the plaintiff has the burden of proof and therefore puts on its evidence first.
While there are no rules on the order of witnesses it is not uncommon to have the police officer testify first. While there are a number of reasons for this the primary reason is the police officer can identify and authenticate the police report (since they wrote it) allowing the plaintiff’s lawyer to admit it into evidence. The direct exam of the officer usually is straight forward. Plaintiff’s lawyers should remember that this will be the first witness and the jury is most likely very attentive. As such, this will be their first impression of you so keep your exam professional and to the point.
Too many lawyers make the mistake of trying to get too much too fast from a witness. Remember, you can not argue on direct exam or lead the witness by asking suggestive questions. Direct exam is where the witnesses share their knowledge of the accident with the jury. As such, for the officer you will begin by having the officer identify themselves, expound on their background and training, explain the process of creating a accident report, explain what happened during the accident in question, and read the important parts from the report.
There may be things in the police report which can be damaging to the plaintiff. Certainly if there is a claim of contributory negligence by the defendant this needs to be address with the officer on the stand. If the client did not complain of injury at the scene of the accident this also needs to be addressed with the officer. Recently I tried a car wreck case in Charlotte and the officer admitted on the stand that he usually fails to record whether there is an injury or not, in violation of the rules. This admission took the wind out of the sails of the defenses argument that my client was injured based on the police report. Of course I knew this going into the trial since I had taken the time to speak with the officer before the trial – the defense attorney and insurance company did not.
While lawyers differ I typically admit the police report into evidence. I have learned over the years the jurors want to see everything. If you don’t share everything with them it is easy to believe that the reason I didn’t is because it is bad for my client. The police report is full of codes, many of which you will need the police officer to decipher and explain to the jury. However, there are multiple items on a North Carolina police report which are not admissible in court and must be redacted prior to being admitted into evidence. These items include insurance information, speed estimates, the officers opinion as to fault, estimate of property damage, and traffic violations. It is my practice to redact these items before the trial and have the defense counsel consent to the admissibility of the report.
After the officer testifies on direct he will be cross examined by the defense counsel. North Carolina does not limit the cross examination to what was asked during direct exam. As such, the defense counsel can ask about anything they want. Further, the defense attorney can use leading questions, ie questions that suggest an answer, for example “You did see the accident, did you?” The defense attorney is looking for anyway to hurt the plaintiff’s case. This might be by arguing contrib or arguing that the impact was minor and wouldn’t result in an injury, etc.
The question of whether to redirect the witness after a cross is specific to each case. Certainly if the plaintiff’s lawyer feels that the defendant score points on cross it might be helpful to redirect the witness. The Plaintiff’s lawyer must be careful in redirect to not look like they are afraid of what came out during cross examination. Certainly the more emphasis you give an issue raised during cross examination the more the jury will as well. The defense counsel will have the option of recrossing as well.
After the officer is finished he will be excused. It is good practice to subpoena the officer to court to ensure he shows up. As such, it is also good practice to let them out of the subpoena after the are excused from the witness stand.
After the officer testifies it is time for the plaintiff to call his next witness. The plaintiff has flexibility in that there are no rules to control the order of your witnesses. Many times the order is determined by outside factors, ie which witnesses are available to testify. If you talk to enough trial lawyers you will hear multiple stories of witnesses not showing up and leaving the lawyer holding the bad (another reason not to promise too much during your opening statement). Remember this isn’t like the movies where everything is scripted and people are paid to show up. In real life a witness can get sick (or there child get sick), they cant get out of work, they move or they just don’t show up.
It is good practice to subpoena your witnesses. While this doesn’t ensure they show up it does buy you some good will from the judge. Sometimes the judge will (depending on the witness) ask the sheriff to go pick them up. Of course this depends on the trial and the witness, as well as the judge. The other advantage is it gives a valid reason why witnesses can leave work.
The next article will look at the direct exam of the plaintiff. To discuss your Charlotte personal injury and the best way to handle it please contact us. You will speak directly with a lawyer who can discuss your claim.