Do I need an attorney?

If your injury is significant, or your damage is substantial, or the question of who is at fault is unclear, you probably need an attorney to represent you.

If you choose, you can attempt to resolve the matter on your own. If you are dealing with an insurance company or a large corporation that is self-insured, they will have a claims adjuster representing its interest. It is the claims adjuster's job to try to resolve the claim for as little as possible. In order to achieve the best settlement on your own, you will need to send the insurance company documentation of your injuries in the form of medical records or reports, medical bills, loss of earnings and other expenses. If the insurance company refuses to settle the matter, you can always retain an attorney at that time to file a lawsuit. To learn what constitutes legally recognized damages go to What is my case worth?

If a lawsuit needs to be filed, it must be filed within a certain period of time or the claim will be time barred. For related information go to Statute of Limitations: When Must I File My Claim or Lawsuit?

A person can file a lawsuit and represent himself without an attorney. When this happens the person represents himself "in pro per". Although the law allows an individual to represent himself, a non-lawyer can become easily lost in a maze of legal and procedural rules. For related information go to What Happens Before, During and After a Lawsuit is Filed? Cheong, Denove, Rowell, Bennett & Karns has the extensive resources to handle the most complex legal matters, yet is small enough to offer individualized service to our clients.

What should I look for in choosing an attorney?

This is your case, your only case. This is just one of many cases for your attorney. You need to choose an attorney who understands that this case is important to you and has the ability, experience and desire to fight for you.

The following is a list of questions you might ask before selecting an attorney or law firm to represent you.

• Does the attorney have experience in handling this type of case?
• Is the attorney knowledgeable about the type of injury or damage involved?
• Has the attorney tried any similar cases before a jury?
• How many jury trials has the attorney had?
• Is the case too large for this attorney or law firm to handle?
• Is the attorney a solo practitioner, or does he or she have a law firm with other partners and associate attorneys to help prepare the case?
• How long has the attorney or law firm been in business?
• What honors or recognition has the attorney or law firm received?
• What professional organizations does the attorney belong to?
• Has the attorney held any office or position with any professional organization?
• What is the attorney's reputation in the community?
• Has the attorney ever been reprimanded or disciplined by the State Bar?
• Does the attorney keep up with recent developments in law and medicine and trial practice by attending seminars and participating in workshops?
• Does the attorney or law firm have the financial resources to prepare and try the case?
• Does the attorney or law firm carry professional liability insurance?

What is my case worth?

Overview

If any attorney tells you how much your case is worth soon after your injury, you should question the attorney's judgment. There are many factors that go into placing the value on a case. The value of the case may be different depending on whether the case is going to settle or if the case is going to be tried.

Factors That Affect the Value of Your Case

The following are a few of the considerations that affect the value of your case.

• What is the nature of your injuries?
• What is the extent of your injuries?
• Are your injuries temporary or permanent?
• What are your functional limitations?
• What is the amount of your medical bills?
• What is the amount of your loss of earnings?
• How clear is it that the other party was at fault?
• Did you contribute to the accident or injury?
• Is your treating physician a specialist?
• How well will your physician be able to communicate to the jury?
• Did you have any prior injuries similar to the injuries involved in this incident?
• Did you have any pre-existing condition that made you more susceptible to injury?
• How well will your attorney be able to demonstrate your injuries and damages?
• Where will the case be tried?
• How good are the defendant's expert witnesses?
• How good are your expert witnesses?
• How good is the defendant's attorney?
• How good is your attorney?
• What is the amount of insurance the defendant has?
• Does the defendant have assets to satisfy any judgment in excess of the insurance?
• Has the insurance company committed bad faith that will result in opening up the insurance policy? For related information go to Insurance Bad Faith.

Types of Damages:

The one thing that is known at the outset of any case is the types of damages one can seek. These damages are divided up into economic and non-economic damages. Economic damages include past and future medical expenses, lost earnings, lost profits, loss of earning capacity, property damage, loss of use and loss of profits. In wrongful death actions, economic damage would also include loss of financial support, loss of gifts or benefits, funeral and burial expenses and the reasonable value of household services that were lost.

Non-economic damages include past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and emotional distress. In wrongful death and loss of consortium cases, non-economic damages would also include loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support, training and guidance and loss of enjoyment of sexual relations.

In certain cases, one can ask for punitive or exemplary damages which are designed to punish the wrongdoer for the conduct and discourage similar conduct in the future. There is no set amount for punitive damages, but the jury should consider how reprehensible was the conduct, what is a reasonable relationship between the amount of punitive damages and the harm that was caused, and what amount of damages is necessary to punish the wrongdoer and to discourage future wrongful conduct in view of the defendant's financial condition. In order to claim punitive damages, the plaintiff must show by clear and convincing evidence that the defendant's conduct was oppressive, malicious, or fraudulent.

For related information on physical injuries, go to Injury Definitions.

Conclusion

Now that you know the types of damages that are available and the factors that go into determining the value at settlement or the value at trial, you understand why it would be guesswork for any attorney at the outset to state what your case is worth.

What happens in an accident if the other driver is uninsured?

Unfortunately, more people today are driving in California who are uninsured than at any other time. You can protect yourself and your family from the negligence of an uninsured driver by purchasing uninsured motorist coverage (UM coverage). Every insurance carrier offering automobile insurance in California must offer UM coverage. The minimum coverage is $15,000 for the bodily injury or death of any one person in any one accident and $30,000 because of bodily injury or death of two or more persons in any one accident. The insurance carrier must also allow you to purchase additional UM coverage equal to the limits for bodily injury in the underlying policy of insurance. As an example, if you have $100,000/$300,000 bodily injury liability protection, you can purchase up to $100,000/$300,000 coverage in UM coverage.

UM coverage not only protects you when an uninsured driver negligently injures you, but it also affords protection for injuries caused by hit and run drivers.

There is an additional benefit to UM coverage and that is underinsured motorist coverage. By law, policies providing UM coverage must also include under-insured motorist coverage. The minimum limits are the same for the UM coverage. Assume a negligent driver injures you and that person has only $15,000 bodily injury liability coverage. What are you going to do if your injuries and damages exceed $15,000? If you had UM coverage greater than $15,000, you could settle with the negligent driver for his $15,000 policy limits, and pursue a claim against your own insurance company up to the limits of your UM coverage. If your insurance carrier does not attempt to promptly and fairly honor your claim, your insurance company may be guilty of Insurance Bad Faith.

UM coverage's is one of the most beneficial and affordable automobile insurance coverage's you can purchase. If you do not have UM coverage, get it. If you have minimum coverage, you should consider calling your insurance agent and increasing your limits.

For related information go to Actions Against Common Carriers, Motor Vehicle Accidents and Negligence Law.

When must I file my claim or lawsuit?

What happens before, during and after a lawsuit is filed?

Many people have little knowledge about what happens when someone has been injured and seeks compensation. Unlike television shows that focus on the trial, in litigation many events occur before the case goes to trial. The following is a list of events that may occur.

Before a Lawsuit is Filed

• Ascertain the facts
• Determine and calendar the appropriate statute of limitations. To learn more go to When Must I File My Claim or Lawsuit?
• Find and interview witnesses
• Photograph and document conditions and injuries
• Obtain medical records and reports
• Itemize medical bills, loss of earnings and other damages
• Determine the identity of all responsible parties
• Establish a theory of liability
• Anticipate and prepare for defendant's arguments
• Attempt to reach a settlement before filing a lawsuit
• Select the most appropriate venue to file the lawsuit

Initial Pleadings and Court Appearance

• The plaintiff (the person who is suing) files a complaint with the court and a summons is issued. A "complaint" is a legal document setting forth plaintiff's claim for damages. Plaintiff has 60 days to serve the complaint once it is filed.
• The court randomly selects a judge who will preside over most aspects of the case.
• The defendant is served with the summons and complaint. Defendant (the person or entity being sued) must respond to the complaint within 30 days of service.
• The defendant files a responsive pleading which is either an "Answer" denying the allegations, a "Demurrer" that challenges only defects on the face of the complaint, or a "Motion to Strike" irrelevant matters, conclusionary allegations or improper demands or damage claims in the complaint.
• The plaintiff will file an opposition to demurrer or motion to strike filed by the defendant. A court will set a date and time to hear argument.
• An Initial Status Conference will be held in court during which the judge will meet the attorneys and establish time parameters within which to complete certain tasks

Formal Discovery

Either side can draft and serve discovery. The following are typical formal discovery devices:

• Written questions called "Interrogatories," to which opposing counsel may have 30 days to supply answers, or object.
• "Request to Produce Documents," to which opposing counsel may have 30 days to supply the requested documents, or object.
• "Requests for Admissions of Fact," which require the opposing party to admit or deny the truthfulness of certain facts. Opposing counsel may have 30 days to respond to these requests, or object.
• "Subpoenas duces tecum" on third parties requiring them to copy and produce relevant documents, or object.
• "Demand for Inspection": The plaintiff can ask the defendant to allow plaintiff's attorney and his expert to examine defendant's property for purposes of photographing or measuring the property in question.
• "Demand for Independent Medical Examination": The defendant can ask the plaintiff to submit to a limited medical examination by a physician chosen by the defense attorney. The plaintiff can be accompanied by his or her attorney or someone from the attorney's staff.
• Either side can take depositions of the opposing party and of witnesses. A deposition is where an attorney asks a person questions and the person responds. The answers are given under oath and taken down by a court reporter. Attorneys from both sides are present.

Discovery Motions

Interrogatories, Request for Production of Documents, Requests for Admissions of Fact, Inspection Demands, Demands for Medical Examination, and Depositions are called formal discovery. If one side fails to comply with a discovery request, the propounding party can file a motion with the court asking the court to compel compliance. The opposing party can file an opposition explaining why the discovery motion should be denied. The court will have the attorneys appear before the judge to argue the motions and the court will rule. If the court rules that the discovery responses are insufficient, the court will order further responses.

Dispositive Motions

Either side can draft and file a Motion for Summary Adjudication of the Issues. This motion is usually filed by the defendant and it asks the court to dismiss plaintiff's complaint. In order to win this motion, the defendant must prove that if the evidence presented is looked at in the light most favorable to the plaintiff, the plaintiff as a matter of law cannot prevail. The plaintiff's attorney will file a written opposition to this motion setting forth the evidence that establishes legal and factual bases that would allow the case to proceed. To learn more go to What is Evidence?

Approaching Trial

The parties designate expert witnesses who may testify at trial. The attorneys may choose to take the deposition of all, some, or none of the expert witnesses.

The attorneys draft the following documents to give to the court before trial:

• Exhibit Lists
• Witness Lists
• Statement of the case
• Jury instructions
• Motions in limine to prevent the introduction of certain evidence, and
• Oppositions to the other party's motions in limine
• Exhibit Books and demonstrative evidence are prepared. To learn more go to What is Demonstrative Evidence?
• The attorneys appear for a final trial setting conference.

Trial

If the lawsuit has not been settled or if the parties have not agreed to place the matter in arbitration, the case will be tried. Many cases settle before trial. For related information go to Is There Any Alternative To Going To Trial? The following is an overview of what occurs during a jury trial:

• The court rules on the motions in limine.
• A panel of potential jurors is called and the court and the attorneys question the jurors. This is called "voir dire." The court first asks questions, then the plaintiff's attorney, and then the defense attorney. Voir dire is an important part of the process. In a typical case, the plaintiff and the defendant can exercise unlimited challenges for cause (asking the court to excuse a potential juror because the juror has indicated a legal ground for disqualification such as bias for or prejudice against a party) and six peremptory challenges (a challenge not for cause. Each attorney is trying to select jurors who are favorably disposed to ruling in favor of his or her client.
• A jury of 12 is selected and depending upon the estimated length of the trial, alternate jurors may be selected.
• The court reads some jury instructions to the jury before opening statement. This is called a "pre-instruction."
• The attorneys give "opening statements." An opening statement is a presentation of what claims are being made and what evidence will support the claims. The plaintiff's attorney goes first and then the defense attorney.
• The plaintiff will present his or her witnesses first. The attorney who calls the witnesses usually presents testimony through "direct examination." At the conclusion of direct examination, the other attorney has the opportunity to question the witness. This is called cross-examination. To learn more go to What is Cross-Examination? This can be followed up by re-direct and re-cross examination. An attorney is allowed to call the opposing party or an adverse witness under Evidence Code section 776 and cross-examine the witness before the other side does direct examination. The advantage of cross- examination is that the attorney can ask "leading" questions, which are questions that suggest the answer and questions that can restrict the witness to "yes" and "no" answers. During questioning on direct and cross-examination, the attorney not asking questions can object. To learn more go to What Are Trial Objections?
• After the plaintiff has presented his or her evidence, the plaintiff will rest. The defense can then present evidence through its witnesses. The defense attorney will call its witnesses and conduct direct examination. The plaintiff's attorney will then cross- examine the defendant's witnesses.
• After the defense rests, the plaintiff can offer rebuttal evidence and the defendant can then offer sur-rebuttal evidence. The court is generally restrictive in the type and length of rebuttal and sur-rebuttal evidence.
• Once the evidence has been received, the plaintiff gives his closing argument. Argument differs from opening statement in the sense that the attorney is permitted to argue the applicable law, the evidence introduced and the reasonable inferences that may be drawn from the evidence. Argument should have the proper mix of logic and emotion to sway both the minds and the hearts of the jurors to rule in the client's favor.
• After the plaintiff's attorney finishes his argument, the defense attorney argues. When the defense attorney has concluded his argument, the plaintiff is permitted one last opportunity to argue his case. This is called "rebuttal argument."
• After argument has been completed, the court will read the instructions to the jury. Instructions are a summary of the law and covers matters such as how to view evidence, how to determine the believability of witnesses, who has the burden of proof, what are the elements of plaintiff's claim that he must prove, what are the elements of defendant's defenses that it must prove, and what are the elements of damages to consider.
• A partner of Cheong, Denove, Rowell, Bennett & Karns has been formally recognized as one of the attorneys who assisted the task force in the preparation of these jury instructions. CACI are the approved jury instructions from the Judicial Council of California. Jury Instructions are read to the jury by the judge and establish the law the jury must follow in deciding the case.
• The court instructs the jury to go into the jury deliberation room and select a foreperson to preside over the deliberations. The jury is given a verdict form that contains questions they must answer. As soon as nine or more jurors agree on the questions, they return to the courtroom. The verdict form is given to the clerk, who gives it to the judge. The judge reads the verdict to himself and hands the verdict back to the clerk, who reads the verdict aloud in open court.

Post-Trial Motions

• Many people think that the verdict is the final chapter. It is not. The losing side can file post-trial motions attacking the verdict. A Motion for J.N.O.V. asks the court to throw out the verdict and enter a judgment in favor of the losing party. This motion is rarely granted.
• The losing party can also file a Motion for New Trial. This motion, if granted, does not result in a judgment in favor of the losing party, but sets aside the verdict and requires the case to be retried before a new jury. Although this motion is less drastic than a motion for J.N.O.V., it, too, is rarely granted.

Appeal

After the conclusion of post-trial motions, the losing party can appeal the verdict. The appeal is heard before a panel of appellate justices, who read the appellate briefs filed by the attorneys and hear argument by the attorneys. The majority of civil appeals are denied. The appellate justices do not reverse a verdict merely because they do not agree with the jury's findings. To reverse a case on appeal, the justices must find that prejudicial error has occurred. To learn more, go to What is an Appeal?

Conclusion

This summary should give you a working idea of what to expect in a lawsuit. Every case has a winner. Every case has a loser. The attorney you select will have an effect on the eventual outcome of your case.

Is there any alternative to trial?

Overview

Most cases settle. The amount of settlement, however, is often dependent upon how prepared and willing your attorney is to go to trial. If the insurance company or defense attorney believes that your attorney is only looking for a settlement and is not able or willing to go to trial, any offer they make for settlement will not reflect the true value of your case.

A settlement can be reached at any stage of the case. Cases settle before a lawsuit is filed, during litigation, during trial, and even after trial.

An attorney must never settle a client's case without the client's express approval. There are many ways in which to try to effect a settlement once the client has given approval. To understand the factors that go into determining what a fair settlement is, go to What is My Case Worth?

Demand Package

The attorney will obtain the necessary information to prepare a demand package which is served on the insurance company or the defense attorney. This demand package sets forth the theories of liability, the evidence supporting liability, a description of the injuries, the effect of the injuries on the client and calculations of both the economic and non-economic damages. In the demand package, the attorney will submit medical reports and, on occasion, declarations from eye witnesses and reports from other experts. The attorneys and often the insurance adjuster will discuss the case in person or over the phone to try to reach a settlement.

Many times the insurance company is not prepared or willing to offer a fair settlement if a lawsuit has not been filed. There are three formal methods in which trial can be avoided after a lawsuit has been filed. These methods are mediation; mandatory settlement conference; and binding arbitration.

Mediation

A mediator is a retired judge or a professional trained in the art of mediation. The parties, their attorneys, and an insurance adjuster, will meet at the mediator's office and discuss the merits of the case. It is the mediator's role to evaluate the strengths and weaknesses of each side's evidence and try to get the parties to reach an agreement on a settlement amount. To learn about evidence, go to What is Evidence? The length of mediation varies depending upon the case and the willingness of the parties and their attorneys to be involved in the process. Sometimes mediation can take days before a resolution is reached.

Mandatory Settlement Conference

Some courts require that the parties attend a mandatory settlement conference before a sitting (not retired) judge. It is mandatory that the parties and their attorneys meet; it is not mandatory that they actually reach a settlement. The settlement conference is similar to a mediation, but the judge usually has less time to try to work out a settlement. A mandatory settlement conference is held shortly before trial and the parties and their attorneys should have a good understanding of the strengths and weaknesses of their cases. Because the mandatory settlement conference is held shortly before the scheduled trial date, the plaintiff's demands and the defendant's offers often become more reasonable.

Arbitration

Occasionally, the parties agree to waive a jury or judge trial and to have the matter decided by way of a binding arbitration before a retired judge. A binding arbitration is similar to a trial, but it is less formal and quicker. It is still necessary to prepare the case as though it were actually on trial. This often involves the preparation of demonstrative evidence to help the arbitrator make the correct decision. To learn more about this form of evidence go to What is Demonstrative Evidence?

Conclusion

It takes experience to know when is the best time to attempt settlement and which is the best approach to take. However, it is always the client who has the final word as to whether or not to settle. It is the attorney's job to explain the pros and cons of going to trial versus accepting a settlement. To learn more about trial go to What Happens Before, During and After Trial?

What is a deposition?

Overview
A deposition is testimony taken before trial under oath and preserved for trial. Depositions are taken in almost every case. Depositions are taken of the parties, percipient witnesses and expert witnesses.

Who is Present at a Deposition?

The following people are typically present:

• The deponent (witness)
• Attorney for the party taking the deposition
• Attorney for the opposing party
• Certified Shorthand Reporter (often referred to as a court reporter)

On occasion, the following people may also attend:

• An attorney for a non-party deponent
• An interpreter for a non English speaking deponent
• A videographer
• Spouse or parent of the deponent
• A discovery referee

How is the Deposition Recorded?

A certified shorthand reporter takes down in electronic shorthand everything that is said by the deponent and the attorneys. If, during the deposition, an attorney wants the reporter to read back a question or answer, the reporter looks at his or her notes or the computer screen and reads back the requested information.

Within a couple of weeks after the completion of the deposition, or sooner if necessary, the reporter prepares a bound deposition booklet from the transcribed electronic notes. The deposition booklet is a verbatim transcript of the deposition.

What is the Purpose of Taking a Deposition?

A deposition of an opposing party or witness has many purposes. The following is a list of some reasons why depositions are taken:

• Pin down the party or witness
• Eliminate surprises at trial
• Discover the defenses of the opposing party
• Evaluate the credibility of the deponent
• Obtain information from non party witnesses
• Preserve testimony of witnesses who may be unavailable at trial
• Challenge the testimony of the party or witness
• Evaluate the strengths and weaknesses of your case and your opponent's case

How is the Deposition Used?

Before trial, the deposition can be a valuable tool to convince the defendant that its case is not strong and it should settle the case. Passages from the deposition can be put into the demand package or mediation brief that establishes this point. To learn more about these settlement methods, go to Is There Any Alternative to Going to Trial?

If the opposing party files a summary judgment motion, deposition passages can be quoted in opposition to the motion to demonstrate that the motion should be denied.

Information may have been revealed during the deposition that the attorney believes should be excluded at trial. Passages from a summary of the deposition transcript an be used in motions in limine to persuade the judge to exclude the evidence.

At trial a deposition is most frequently used during cross-examination to impeach the trial testimony of a witness. To learn more about cross-examination, go to What is Cross-Examination? As an example, if at trial, the witness states that he saw the car enter the intersection when the traffic light was red, but in the deposition he said he didn't know what color the light was, or the light was amber or green, the attorney can ask the judge for permission to read the contradictory testimony to the jury. At that time, the judge will often instruct the jury that "a deposition is testimony of a person taken before trial. At a deposition, the person is sworn to tell the truth and is questioned by the attorneys. You must consider the deposition testimony that was read to you in the same way as you consider testimony given in court." CACI 208

(CACI are the approved jury instructions from the Judicial Council of California. Jury instructions are read to the jury by the judge and establish the law the jury must follow in deciding the case. A partner of Cheong, Denove, Rowell, Bennett & Karns has been formally recognized as one of the attorneys who assisted the task force in the preparation of these jury instructions.)

In light of this instruction and because impeachment can affect the credibility or believability of a witness's testimony, it is important that the attorney prepare his or her client for the deposition.

Portions of a deposition that have been read to the jury can be enlarged and displayed to the jury during closing arguments. For related information about depositions and other discovery tools and how they are used at trial go to What Happens Before, During and After a Lawsuit is Filed?

What is evidence?

Overview
Evidence is defined as anything offered to prove the existence or nonexistence of a fact, including testimony, writings, material objects or other things presented to the senses. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. Evidence can also be someone's opinion.

Types of Evidence

When a witness testifies at trial on direct or cross-examination, the witness is giving evidence. A deposition that is read to the jury is testimony and therefore is evidence. T

Writings, documents and material objects are also evidence. In order for non-testimonial evidence to be considered by the jury, the evidence must be identified and then received as evidence by the judge. Certain exhibits are called "demonstrative evidence" which is evidence that illustrates a witnesses testimony or the attorney's theory of the case. Demonstrative evidence can be timelines, graphs, diagrams, enlargements and models. To learn more go to What is Demonstrative Evidence?

Is Circumstantial Evidence Allowed?

There are two types of evidence. One is "direct evidence," which is defined by the Evidence Code as "evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact." Circumstantial evidence would require an inference which is defined as a "deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action."

Fortunately, the jury instructions the judge will read to the jury explains the difference between direct and circumstantial evidence more clearly.

"Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as 'circumstantial evidence.' In either instance, the witness's testimony is evidence that a jet plane flew across the sky.

"As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give every piece of evidence whatever weight you think it deserves." CACI 202

(CACIare the approved jury instructions from the Judicial Council of California. Jury instructions are read to the jury by the judge and it establishes the law the jury must follow in deciding the case. A partner of Cheong, Denove, Rowell, Bennett & Karns has been formally recognized as one of the attorneys who assisted the task force in the preparation of these jury instructions.)

Who Decides What Evidence Will Be Received?

An attorney produces evidence by asking witnesses questions and having the witnesses give answers under oath. The attorney also presents evidence using exhibits that are shown to the jury and received in evidence by the court. The opposing attorney may allow the questions to be asked or the exhibits to be received into evidence and shown to the jury. Or, the opposing attorney may instead raise a trial objection to prevent the witness from responding to the question or to prevent the introduction of an exhibit. It is the duty of the trial judge to rule on the objections. To learn more go to What Are Trial Objections?

What is demonstrative evidence?

Cheong, Denove, Rowell, Bennett & Karns are on the cutting edge of presenting compelling demonstrative evidence.

Demonstrative evidence is a tool of persuasion. It clarifies and simplifies points. It helps the jury understand the issues raised at trial. Demonstrative evidence can be as simple as a word written on butcher paper in front of a jury or as elaborate as a three dimensional animation.

Types of Demonstrative Evidence

The following are examples of demonstrative evidence we created for our clients? cases. At Cheong, Denove, Rowell, Bennett & Karns we believe the more the jury sees, the better they understand.

Accident Reconstruction Boards

Expert testimony can be confusing. To clarify the technical testimony, boards that visually explain the expert's opinions are often useful. On occasion, multiple boards are used to explain different aspects of the accident or the accident avoidance sequence. Click here to see an example of an Accident Reconstruction Board.

Celebration of Life Videos

When someone dies, he or she leaves behind loved ones who continue to suffer a loss. To enable the jury to understand who the decedent was and how much he or she meant to the family left behind, that person's story must be told. To assist the jury in getting to know the decedent, photographs, letters, cards and home videos can be collected, edited and videotaped to show the jury.

Closing Argument Boards

After the evidence has been presented to the jury, the attorney has the right to give closing argument. Some trials are over in days, while others may go on for months. Using boards to illustrate the points the attorney is making during closing will help the jury understand the points. Click here to see examples of Closing Argument Boards.

Computer Animation

If one picture is worth a thousand words, a computer animation can tell the entire story. Computer animations can allow the jury to see the accident through the eyes of the plaintiff, the defendant or a third person. Click here to see an example of a Computer Animation.

Day in The Life Video

Although people can intellectually understand the effects of crippling injuries, a day in the life video can allow the jury to see what a person with those injuries has to endure 24 hours a day. Activities of daily living that we take for granted can be a struggle for someone with catastrophic injury. The jury needs to understand the full extent of the plaintiff's injuries in order to award the compensation the plaintiff deserves. 

Enlargements

In any case, even those with thousands of exhibits, there may be three or four documents that are the key to success. In these few documents, the crucial information may be limited to a few words or sentences. Highlighting and enlarging these points will allow the jury to concentrate on what is important. Click here to see examples of Enlargements.

Excerpts

A document or a deposition or trial transcript may contain too much information. Taking excerpts from lengthy documents and displaying that to the jury will help them focus on the important information. Click here to see examples of Excerpts.

Graphs and Charts

Graphs and charts can assist the jury in making sense out of testimony or voluminous documents. Graphs can often tell the story much better than the most eloquent speaker. Charts can also help the jury focus on the important issues in a case. Click here to see examples of Graphs and Charts.

Jury Instructions

At the end of the trial the Judge will read a number of instructions to the jury. It can take as little as 15 minutes or as much as an hour for the Judge to read to the jury the law they must follow. Enlarging the important Jury Instructions and using them during Closing Argument is an effective way to demonstrate why the jury should vote in favor of the client. Click here to see an example of a Jury Instruction that was enlarged for a jury trial.

Marking Pen and Butcher Paper

Sometimes less is more. A simple line drawing can explain what happened. A simple word written on the board can often sum up the motive behind a defendant's action. Click here to see an example of Marking Pen on Butcher Paper

Mechanism of Injury Animation

Sometimes using a still illustration does not fully express how an actual injury occurred. In these circumstances it may be helpful to use an Accident Reconstruction Video. Click here to see examples of Mechanism of Injury Animations created for a products liability trial.

Medical Illustrations

Medical testimony in personal injury and medical malpractice cases can be confusing. Custom designed medical illustrations assist the jury in understanding technical expert testimony. Click here to see examples of Medical Illustrations.

Models

Anatomical models and specially created models depicting an accident scene or a defective piece of equipment that is used during the testimony of an expert witness and during closing argument can often emphasize a point more than an illustration. Click here to see examples of Models.

Photographic Enlargements

If one picture is worth a thousand words, the photo shown to the jury must be large enough for all the jurors to see and appreciate. Click here to see examples of Photographic Enlargements.

Timelines

Certain cases require the jury to understand not only the final event but what led up to it. At times the events may span years or decades. A timeline is a visual aid for the jury to track the events in a chronological order. Click here to see examples of Timelines.

Conclusion

How one displays demonstrative evidence is dependant upon the evidence one wishes to introduce and the physical limitations of the courtroom. One or more easels can be placed in the courtroom to display demonstrative evidence boards. Demonstrative evidence can also be displayed on projection screens or television monitors using PowerPoint, Elmo, DVD or video.

Considerable care should go into deciding the type of demonstrative evidence to use, as well as the information to display. Too much information can confuse the jury. Too much demonstrative evidence can diminish its effectiveness. Demonstrative evidence that isn't accurate is worse than no evidence at all.

What is cross-examination?

Overview
At trial, witnesses are called, sworn to tell the truth and then answer the questions asked by the attorneys. When an attorney calls the witness and asks questions, this is known as direction examination. After the attorney completes his or her questioning, the other party's attorney can ask questions. This is known as cross-examination. As in direct-examination, an attorney may object to questions that are asked. For related information click on Trial Objections and What Happens Before, During and After Trial?

The Difference Between Direct and Cross-Examination

When an attorney calls a witness to testify, it is assumed that the witness will be inclined to testify favorably for the attorney who calls him. Therefore, the law does not permit the attorney to ask that witness questions that suggest the answer to the witness. Questions that suggest the answer are known as leading questions. On cross-examination, however, the law allows the attorney to ask leading questions. The following are examples of leading questions that are allowed during cross-examination but disallowed during direct examination.

ISN'T IT TRUE THAT . . . ?

IS IT A FAIR STATEMENT THAT . . . ?

YOU DID ___________, DIDN'T YOU?

AM I CORRECT IN ASSUMING. . . ?

IN SUMMARY, WHAT YOU ARE SAYING IS . . . ?

There are certain situations when the attorney calling the witness can ask leading questions. The court will allow leading questions to an opposing party and to a "hostile" witness. The judge may allow leading questions of any witness if the judge believes it will serve the interest of justice.

Purpose of the Cross-Examination

Cross-examination has long been referred to as an art. Before beginning cross-examination, the trial attorney should know what it is that he or she intends to accomplish. Cross-examination has many goals, and some goals, while applicable to one witness, may be contraindicated for another. The goals one intends to achieve with a witness will depend entirely upon the witness' direct examination testimony; how the witness behaves; and the makeup of the jurors who are sitting in judgment of the case. The following is a list of potential aims or goals for cross-examination:

• Attempt to have the witness modify or change damaging testimony given on direct examination;
• Amplify the testimony that was favorable to your client;
• Establish that the memory of the witness with regard to the event is unclear;
• Show that the ability of the witness to perceive the event about which he testified was impaired;
• Persuade the jury that the witness is biased toward the person or cause for whom he is testifying, or prejudiced against your client or cause;
• Demonstrate the implausibility of the witness' testimony (if you give them enough rope, they'll hang themselves);
• Allow the jury to conclude that the witness is unlikable; and
• Elicit information on cross-examination that supports your case or that is inconsistent with the opposing party's theme or the opposing party's evidence.

The first consideration before asking the witness any questions on cross-examination is whether or not the witness' direct testimony has really hurt your case. If it has not, and you still decide to take the witness on a lengthy cross-examination, be aware that you are running the risk of enabling the witness to emphasize unfavorable points that he may not have been able to fully explain on direct.

It is rare in any trial that a Perry Mason-type bludgeoning cross-examination will be effective. More often than not, such an approach will only engender sympathy for the witness and hostility towards the examiner. This is especially true for a witness who is only there because he happens to be a friend or associate of a party, or because he had the misfortune of being a witness to the event because he was at the wrong place at the wrong time. If an expert witness is being cross-examined and that witness makes his living from testifying, the jury will be more tolerant of an aggressive examination. The same is true for a lay witness or party who appears to be obviously lying.

Conclusion

It has been said and it is true that cross-examination by an unskilled trial attorney is often more "suicidal" to the attorney than "homicidal" to the witness. Cross-Examination is an art. Sometimes the most effective cross-examination an attorney can conduct is to stand up and say "I have no questions of this witness, your Honor."

What are trial objections?

Overview

We have all heard the words, "I object!" shouted in countless courtroom dramas on television. Trial objections are used to preclude the jury from hearing objectionable evidence and to preserve a party's rights on appeal.

For related information about evidence and appeals, go to What Is Evidence?, What Happens Before, During and After a Lawsuit is Filed? and What Is An Appeal?

The following are the most common objections that are raised during trial.

Objections

1. Irrelevant

No evidence is admissible except relevant evidence. Relevant evidence is defined as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.

2. Evidence is more prejudicial than probative

Even though evidence may be relevant, the court may exclude it under Evidence Code section 352 if the court, in its discretion, finds that its probative value is substantially outweighed by the probability that its admission will consume too much time or create substantial danger of undue prejudice, or will confuse the issues or mislead the jury. The court in ruling on such an objection must weigh the potential benefit of the proposed testimony against the potential harm the evidence will create.

3. Hearsay

"Hearsay" is defined as an out-of-court statement offered to prove the truth of the matter stated. Simply stated, almost anything someone said outside of court is hearsay unless it fits within one of the recognized exceptions to the hearsay rule. Some of these exceptions are listed below.

• Admission by a party to the lawsuit
• Out of court statement by a non-party that is against that person's interest
• Prior consistent or inconsistent out of court statement by a witness
• Former testimony of a witness at deposition, trial or other proceeding
• Spontaneous statement of a witness that describes or explains an act, condition or event perceived by the person making the statement
• Statement of the person's then-existing physical state or state of mind which is at issue at trial
• Business record to prove the existence or non-existence of an act, condition, or event recorded or not recorded in a business record.

To qualify as an exception to the hearsay rule the attorney must establish all of the facts required for the exception.

4. Lacks Foundation

A lay witness (someone other than an expert witness) must have personal knowledge of the matter upon which he or she is testifying. Except in certain situations, a lay witness may not testify in the form of an opinion. Subject to the court's discretion, a lay witness may express opinions concerning speed, weight, distances, observable physical condition of another person's identity, whether someone appeared to be intoxicated, nervous, angry or alert.

An expert is allowed to express a wide variety of opinions not based upon personal observations provided there is sufficient foundation to support the opinion. The expert must have demonstrated that he or she has special knowledge or experience on the subject and that the opinion is based on reliable information.

5. Privilege

Even though evidence may be relevant, trustworthy, and would aid the jury in coming to a correct decision, certain evidence will be excluded if it is privileged. Privileges have been established in certain situations because it is considered more important to keep information confidential than to require disclosure. As with all evidentiary objections, certain facts must be established before the privilege can apply. Some privileges do not apply in all circumstances. In certain situations, a person may be deemed to have waived the privilege. The following is a list of privileges recognized by the State of California.

• Privilege against self-incrimination
• Lawyer-client privileges
• Privilege not to testify against spouse
• Confidential marital communication privilege
• Physician-patient privilege
• Psychotherapist-patient privilege
• Clergy-penitent privilege
• Domestic violence victim - counselor privilege
• Political vote privilege
• Qualified trade secret privilege
• Human trafficking victim - caseworker privilege
• Qualified freedom of the press privilege
• Legislative privilege
• Taxpayer's privilege
• Right of privacy

To Object or Not To Object

Just because a question is technically improper, the attorney shouldn't automatically object. Jurors do not want to have evidence withheld from them. Many jurors view objections as a technical way of preventing them from receiving all of the evidence. Before making an objection, the trial attorney should consider the following:

• Is the question objectionable?
• What is the proper objection to make?
• Will the court sustain the objection?
• Will the answer, if given, hurt your case?
• How will the jury perceive your objection?
• Will your adversary be able to reword the question to make it unobjectionable?

What is an appeal?

Overview

An appeal is a challenge to a trial court's decision or a jury verdict. The appellate court does not retry the case, but reviews the case to see if error occurred at trial. But error alone is not sufficient for the appellate court to reverse the trial court's decision or a jury's verdict.

Who Can Appeal?

The losing party has a right to an appeal. The person appealing is referred to as the "appellant." The other party is referred to as the "respondent." In a limited jurisdiction case, the losing party appeals to the appellate department of the Superior Court. In an unlimited jurisdiction case, the losing party appeals to the Court of Appeal. If one loses in the Court of Appeal, there is no right to have the matter heard before the California Supreme Court. To have the case heard by the Supreme Court, the attorney petitions the Court and asks the Court to hear the appeal. The California Supreme Court does not accept very many cases.

The Record on Appeal

The trial court and juries receive evidence by way of exhibits and oral testimony. To learn more, go to What is Evidence? If an appeal is taken, the appellant must designate the record on appeal for the appellate court to review. The record typically includes a court reporter's transcript of the oral proceedings and a copy of the clerk's transcript. The clerk's transcript includes the notice of appeal, the judgment or order appealed from, the notices to prepare the reporter's and clerk's transcript and the register of actions. Other documents typically include exhibits, jury instructions, and pleadings filed with the trial court that may be in issue on appeal.

The Appellate Brief

The appellate courts limit the number of pages a brief can contain. Therefore, it is necessary to focus on those issues that are most important in having the appellate court rule in your favor

Oral Argument

The California Constitution gives the parties the right to orally argue the appeal before the justices who will decide the case. In the Court of Appeal, three justices decide the case. In the California Supreme Court, all of the justices decide the case. There are seven Supreme Court justices. (For more information on the Supreme Court of California, check its website at: http://www.courtinfo.ca.gov/courts/supreme/

The appellate justices will have read the briefs before argument. Oral argument should not be used to restate what has already been written. Oral argument gives the attorneys the opportunity to answer any questions the Justices may have.

The Standard of Review

Appeals are generally lost. This is because most appealed judgments and orders are presumed correct. The appellant has the burden to demonstrate an alleged error. If there is any ambiguity in the record, it is resolved in favor of the respondent.

On appeals challenging a trial court's decision or a jury verdict on the grounds that there was insufficient evidence, the appellate court must decide if the decision or judgment was supported by substantial evidence. Even if the substantial evidence was contradicted and even if the Justices personally would have ruled differently, the appellant will lose if the evidence was substantial. The testimony of a single witness, even if that witness is a party, may constitute substantial evidence.

Some cases, the appellant argues that the trial court abused its discretion. Discretion is abused if the trial court exceeds the bounds of reason. It is the appellant's burden to establish an abuse of discretion.

Typically, trial court error alone will not require the appellate court to reverse a judgment. Appellate courts will generally reverse only if the error or improper ruling was prejudicial. In basketball, the late Laker announcer Chick Hearn would say, "No harm, no foul," when a referee chose not to make the call. In law, that means that if a different result would not have resulted absent the error, the appeal will be denied. Harmless errors will be ignored by the appellate court.

Conclusion

The foregoing is a brief primer on appellate law. Every case can be appealed. Some cases will be reversed on appeal. It is important that the trial lawyer understands what acts or omissions at trial can result in a successful appeal in order to avoid a reversal. After judgment or verdict, it is important that the attorney recognize which case is vulnerable to attack an appeal.

The attorneys at Cheong, Denove, Rowell, Bennett & Karns have not only been recognized for their experience in litigation, but also in appellate practice. Very few cases that are litigated go on to appeal. Very few of the decisions from those appellate cases are certified for publication. When a decision has been published, the rules set forth in the decision are considered to be law and must be followed by lawyers and judges in other cases. The attorneys at Cheong, Denove, Rowell, Bennett & Karns have more than fifteen appellate decisions that have been certified for publication. To learn more about go to Reported Appellate Decisions.