We left off talking about the direct and cross examination of the police officer. Today in this article I will discuss the direct examination of the plaintiff.
This is the moment in the personal injury trial when the plaintiff gets to tell his or her side of the story. The jury has been waiting for this moment since they heard what the case was about. The jury since they walked into the courtroom has been watching the plaintiff. They have heard from both lawyers and most likely they have heard from the police officer. They have examined what the plaintiff is wearing, how interested he appears during the trial, even the people sitting behind him. All this information will be processed by the jury to determine what the outcome will be in the case. All before the Plaintiff says one word to the jury.
What people injured in Charlotte car accidents have to understand is that there is a bias against them. There is a pervasive belief that people involved in car accidents, especially ones with minor property damage and non-visible injuries, are faking their injuries. They are trying to game the system, that this is a lottery ticket for them. This belief has been stoked by an insurance industry that has worked very hard and spent billions of dollars advertising this claim. While there is little to no factual basis to back up this claim it has worked over the past 30 years to poison the jury pool. Insurance companies are now reaping the rewards of this claim in lower jury judgments and therefore lower settlement offers.
Plaintiff’s with non-visible injuries are walking into a courtroom behind the eight ball. They are already starting in the negative. They have to overcome the bias of the jury who has been spoon feed misinformation from insurance companies for years as well as winning their own case. This is not an easy thing to do.
All eyes will be on the plaintiff when he/she takes the stand. The role of the plaintiff’s personal injury lawyer is to introduce the plaintiff to the jury and allow the plaintiff to explain to the jury in their own words what happened to them. I was once asked by another lawyer the difference between a criminal lawyer and a civil lawyer. In my opinion a criminal lawyer’s job is to put all of the focus on them. They don’t want the jury looking at their client they want the jury looking at them. The role of the personal injury lawyer is to get the jury to focus on their client. The client is the one who was involved in the car accident, had months of treatment and dealt with the pain. If the jury is only focusing on the lawyer they miss what the entire case is about.
In most cases the plaintiff is not a professional witness. They have never testified before. They have as much experience as the jury in what a witness is supposed to look like. I can also promise you they will be nervous. Mind you, they have most likely been dealing with the accident for years before this moment. The Plaintiff should be dressed professional and conservative. They need to be themselves on the stand and confident with their answers. If they are not sure how can the jury be?
The best advice I give my clients before they testify is to be honest. If they are not honest they jury will see it. Dishonestly can be visible in either a pause before an answer, looking away when answering, or failing to answer the same way on cross examination. Further, dishonesty takes energy. Testifying can be exhausting because of the stress the body is under. Telling the truth doesn’t take any energy.
I typically start my direct exam on the plaintiff asking them to identify themselves. The jury needs to get to know who this person is and why did this accident affect them so badly. The jury needs to know what type of person the plaintiff is, do they have kids, married, hobbies, and employment. This information is necessary for the jury to make an educated decision about damages. Further, a jury trial is about finding the truth. The jury needs to hear from both parties to determine who is telling the truth.
After I have introduced the plaintiff to the jury I will ask the plaintiff to describe the accident. I ask only open ended questions allowing my client to do almost all of the talking. First, the rules require that I don’t ask leading questions, second I don’t want the jury to think I am giving my client the answers. Juries don’t want to hear from the lawyers they want to hear from the parties themselves. Depending on the how the accident took place and if there are allegations of contributory negligence I will spend more or less time on the facts of the accident. If liability is admitted (ie the defense is admitting the defendant was at fault in causing the accident) I will spend the majority of time focusing on the injuries sustained from the accident.
There are two schools of thought regarding the plaintiff’s medical records. I believe in complete transparency. In other words I believe it admitting the medical records of the plaintiff to the jury to allow them to review them. There is another school of though which argues admitting the records as evidence allows the defense attorney to pick out a line here or there to discredit the plaintiff. While I think that is a valid argument I believe the stronger position is admitting the records. I believe that because if you don’t I think the jury will believe you are hiding something. If they jury believes you are hiding something they will punish you for it. regardless, the decision to admit the records is usually one made on a case by case basis. Each lawyer will have to make that call for their case.