Procedure Needs to Be Followed in Personal Injury Cases

When a legal issue goes to trial attorneys on both sides must abide by the rules of evidence. These rules pertain to how witnesses may be questioned and which evidence may be admitted. An error in any of these areas may lead to an objection which may be upheld by the judge. However, sometimes the judge allows evidence that the Court of Appeal finds inappropriate. When this happens, the entire case may have to start over again. This is the situation for one case arising out of an accident in Lafayette.

In Cawthorne v. Fogelman, an accident occurred when the defendant turned right out of a drive and into the road’s outer lane, but struck the plaintiff’s vehicle. The plaintiff suffered severe neck and back injuries as a result of the collision. This lawsuit was subsequently filed. According to court documents, the defendant checked the road before turning out of the drive, saw no oncoming cars in the lane he was turning into, and saw no vehicles in the inside lane with their blinker on. After hearing testimony from expert witnesses the jury found for the defendant.

On appeal to the Court of Appeal for the Third Circuit, the plaintiff asserted the trial court erred in allowing the defendant’s deposition to be admitted into evidence in place of the defendant’s live testimony. In other words, a written transcription of the defendant’s statements was made available to the jury, but the defendant was not physically present to be questioned by the plaintiff and to be seen and heard by the jury.

The Court of Appeal agreed with the plaintiff and found the defendant failed to prove he was legally unavailable to attend the trial. The defendant, who had been in drug treatment, had voluntarily decided to attend a transitional program in Washington. The defendant claimed this made him unavailable to attend the trial. According to Louisiana law, a deposition cannot be used in place of live testimony unless the witness is unavailable or resides more than 100 miles away. The court found the transitional program was not a medical center, the defendant was not being treated by a doctor, and the defendant failed to prove he could not leave the program to attend the trial. Therefore, reasoned the court, the defendant chose to be absent from the trial. This absence unfairly hindered the plaintiff by denying him the opportunity to question the defendant and prohibited the jury from making a credibility judgment by seeing the defendant’s live testimony.

Though most appeals of final judgments are reviewed for manifest error and the judgment on the merits is often not disturbed, there are times when an appellate court can make a final judgment when an error has occurred. For example, when a mistake of law forecloses any finding of fact and where the record is otherwise complete, the appellate court should render judgment on the record. However, if the weight of the evidence is nearly equal to the point where a firsthand view of the witness may be essential to deciding the case, the appellate court should remand the case for a new trial. Here, the court found the facts of the case to make the outcome uncertain. In other words, the credibility of the defendant, or lack thereof, may make the difference in a jury’s decision. Thus, the case was remanded back to the trail court for a new trial.

In most cases, an individual will be found to be legally unavailable only if that person is dead, physically or mentally ill, unable to be procured through process or other reasonable means, or refuses to testify despite a court order. Only then will his out of court statements be admitted into evidence. This is important to know because a mistake in this area can waste time, money, and overturn a client’s favorable judgment.

When an attorney fails to properly introduce evidence, or erroneously introduces evidence, a client’s entire case may be put at risk and legal costs can rise. For this reason, it is imperative those facing legal issues research their attorney to ensure he is experienced and reputable. If you are facing legal trouble contact such an attorney at The Berniard Law Firm.