Do We Really Need Witnesses to Car Accident Cases?

I was driving home from work a couple of nights ago…well, actually, I was between stops taking care of stuff on my way home….when I saw an accident at Decatur just south of Charleston Blvd.  I was making a left hand turn to go south onto Decatur from the shopping center. I was a few cars back (maybe 3 – 6) in my SUV when I saw a woman making slowly making the left in front of me clip an electric wheel chair and throw its user to the ground.

I thought the car was going to go in front of the wheelchair, but saw the wheelchair yanked to the side and pieces fall off of it.  I decided I had to stop and crossed the street to park and make sure everything was being taken care of.  A young man was on the phone and verified he was calling 911.  Another man was helping the women on the ground.  A third had pulled her van in front of the car that hit the wheelchair to prevent her from leaving the scene.

After ensuring that I would not offer any specific help out in the middle of the street, I decided to move my truck around to block traffic from hitting the woman on the ground and those assisting her.  As I got there, a Metro police officer arrived on his motorcycle and Paramedics got to the scene.  So, I, again, decided to pull into the lot as I was not needed to block traffic.  The man who had first rendered assistance and had been guiding traffic to that point left and the man who had called 911 was also gone.  No other independent witnesses stayed at the scene.

I waited and gave a statement to the investigating officer and spoke with another woman who rendered assistance (and a blanket) to the woman on the ground.  She had picked up a piece of the car from the ground, but I advised her it was best to leave it there for the officer to document.  The driver spoke to me and told me that she had never hit anyone before and that she did not see the wheelchair and the sun was in her eyes.  She also told me that she was going to keep going but that others yelled at her to stop.  By the way….I never saw the van that stopped her once the police arrived.

I know this intersection and pass through it on a fairly regular basis.  There is no left turn signal for traffic crossing Decatur and I thought the walk sign would have been on when our light turned green allowing us to make our left turns.  I did not see the walk/don’t walk sign and cannot say it was in walk mode at the moment of impact from personal observation, but believed it was from past experience.  I have since been at the intersection and noticed that the walk/don’t walk sign did not go into walk mode when the light turned green, but this was at a different time of day and there was no on waiting to walk across the street with the light.  This unfortunate accident was, in my opinion, solely the fault of the driver who made the left turn and could not see due to the sun in her eyes.

Why did I stay?  Because it’s the right thing to do.  This incident proves this to me.  Here, there were, likely, at least four eyewitnesses to the accident (myself, the man who called 911, the man who rendered assistance, and the person driving the van that stopped the driver from leaving the scene) – there were probably others in the cars in front of me as well as those stopped at the light on Decatur.  Of those, it looks like ONLY I stayed to give a statement to the officer.  Without my statement, liability may be more easily contested.  Giving statements – or at the very least identifying yourself as a witness to an accident and providing contact information – can prevent those who drive negligently and their insurers from contesting liability in cases where none exists.  This is becoming even more important where Las Vegas Metropolitan Police Department may not show up to a call for policy or other reasons.  It can help cases settle rather than be litigated on a he-said she-said liability fight.

Why did I write this? Two reasons.  First, I wanted to discuss the importance of witnesses to come forward and speak up.  This would be true even if the woman who was injured was at fault.  Had that been the case, then she should not be compensated and the case should not be litigated causing expenses for an insurer and extra strain on the Court System.  Those should be left for cases of true liability and damages issues.

Second, I wanted to memorialize what I could and could not remember from an accident that I saw less than a day ago.  I can still picture the car driving slowly and hitting the wheelchair spinning it and throwing the woman to the ground.  I can see the parts of the wheel chair flying off it into the street.  I can picture the man who called 911, the man who rendered assistance and others at the scene.  I can recall the at-fault driver admitting that she could not see and the sun was in her eyes.  I know that I did not look to the Walk sign to determine what mode it was in at the time of the impact or immediately thereafter.  Maybe I will need to remember these facts in the future as a witness to the case and memorialize them here.  I’m sure there will be other details I do and do not recall, but these are the basic facts that come to mind at this moment.

Use of Depositions During Closing Argument

I was recently in a Trial in which the opposing Counsel began to read portions of my client’s Deposition in his closing argument which had not been introduced during the evidentiary portion of the Trial. I objected to the use as inappropriate and the Judge agreed with me and instructed the Jury to ignore any information not introduced into evidence during the Trial.

I knew the Judge and I were right….it just didn’t pass my smell test – but I needed to know why and researched the issue after the Trial. Opposing Counsel advised that his use of portions of the Deposition during closing that were not introduced into evidence during the Trial was proper based on NRCP 32(a)(2) which states:

The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.

As we know, the rules cannot be looked at in a vacuum and need to be examined in the universe of the Court’s Rules and case law. Finding no case law on point in Nevada, I turned to the Federal Rule which has substantially similar language and found a case known as Cleary v. Indiana Beach, Inc., 275 F.2d 543 (7th Cir. 1960) which allowed a party to read in portions of an adverse party’s Deposition after that party had testified. It is important to note that this was done during the evidentiary phase of the Trial. This makes sense as the portions of the Deposition that have been read are “in evidence” and can be objected to during the evidentiary phase.

There are several Nevada Pattern Jury Instructions which confirm the Judge’s ruling that Deposition testimony of a party cannot be introduced for the first time during Closing Arguments.

Instruction 1.03 states (in pertinent part):

The evidence which you are to consider in this case consists of the testimony of the witnesses, the exhibits, and any facts admitted or agreed to by counsel.

Instruction 1.05 states:

Although you are to consider only the evidence in the case in reaching a verdict, you must bring to the consideration of the evidence your everyday common sense and judgment as reasonable men and women. Thus, you are not limited solely to what you see and hear as the witnesses testify. You may draw reasonable inferences from the evidence you feel are justified in the light of common experience, keeping in mind that such inferences should not be based on speculation or guess.

Instruction 2.01 states :

In determining whether any proposition has been proved, you should consider all the evidence bearing on the question without regard to which party produced it.

Instruction 2.03 states:

Certain testimony has been read into evidence from a deposition. A deposition is testimony taken under oath before the trial and preserved in writing. You are to consider that testimony as if it had been given in Court.

Putting this all together it is clear that the Jury is only to consider evidence that was presented during the evidentiary phase of the Trial. There is one more Rule that comes in to play here which prevents a party from practicing Trial by ambush (or, in this case “Argument by ambush.”) NRCP Rule 16.1(a)(3) (Pretrial Disclosures states, in pertinent part:

(3) Pretrial Disclosures. In addition to the disclosures required by Rule 16.1(a)(1) and (2), a party must provide to other parties the following information regarding the evidence that it may present at trial, including impeachment and rebuttal evidence: . . .

(B) The designation of those witnesses whose testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony; . . .

This, of course, allows the other parties to prepare for, and object to, portions of Deposition being read into evidence before the Jury is exposed to, what may be, inappropriate evidence. Allowing a party to read portions of a Deposition to the Jury for the first time during closing argument is unfair to the other parties and principles of fairness and is not allowed by the Rules.

Technology in the Courtroom – Can it Backfire?

Technology is great.  I love it and have lots of excess toys.  When I travel, I carry a laptop, an iPad, a Kindle, an Android Tablet and my Android phone.  I have carried in my backpack up to 7 ways to connect to the internet.  But, recently, I did a completely NO tech Short Trial in a car accident case.  I mean old fashioned.

No overhead or elmo projectors.

No slide show.

Nothing but myself, my client, and paper.

And, I won.

The Defendant’s attorney used a slide show during his opening and closing. He used the elmo to enlarge highlighted exhibits.  He worked well with the technology, but it seemed to leave him without the ability to improvise and leave his preplanned opening and closing.  While I understand the need to have a theme and plan how to present a case, Attorneys should also be able to be flexible and improvise when necessary.

During his opening statement, Defense Counsel noted that it only took 1.5 hours to replace my client’s truck bumper and that my client’s treatment was much longer than that.  I took note and used that comment in my closing: “Wouldn’t it be nice if people could just go and get a new part bolted on when one is damaged? Unfortunately, we can’t.  We take time to be treated and heal.

In closing, Defense Counsel showed a slide of a teeter totter and pointed out that he had to explain to his son that, due to their difference in size and weight, they could not ride the teeter totter together.  In my rebuttal argument, I used his example to show that bigger/heavier always wins.  It wins in football. And it wins when a person’s body, such as my client who can’t possibly weight more than 150 pounds, gets thrown around by two trucks colliding into each other with enough force to bend two solid steel bumpers.

The Nevada Short Trial Program causes a problem with technology since there is little, if any, time to modify slides as can be done in longer trials.  There was just no time to change the presentation. A choice had to be made: use technology, but understand its limitations; or do without and risk the jury not following the case. My case was simple and done in a day so the Jury world nor get lost and I could present my case with flexibility to adjust to the averse attorney’s presentation.

Offers of Judgment in Nevada State Court

Nevada has both a Statute and a Court Rule allowing any party to make an Offer of Judgment on an opposing party. The Rules are given a specific purpose:

NRCP 68 and [NRS 17.115] are designed to facilitate and encourage settlement. They do so by placing the risk of loss on the nonaccepting offeree, with no risk to the offeror, thus encouraging both offers and acceptance of offers. Placing the risk of loss of eligibility for fees and costs on an offeror would have the opposite result and would discourage plaintiffs from making offers to settle. See, Matthews v. Collman, 110 Nev. 940, 878 P.2d 971 (1994).

A party makes a formal Offer of Judgment on an opposing Party by serving it on them during the course of litigation.  The party who receives the Offer of Judgment has 10 days to accept it.  If that Party fails to do so within that time, then the Offer is deemed rejected. NRS 17.115 and NRCP 68 facilitate settlement by penalizing a Party who rejects an Offer of Judgment then fails to obtain a more favorable Judgment.  What the Rule and Statute are saying is that if you don’t accept an Offer resulting in additional time, fees and costs, to the Party making the Offer, then you may have to pay for those additional costs.

Under NRS 17.115:

4.     Except as otherwise provided in this section, if a party who rejects an offer of judgment fails to obtain a more favorable judgment, the court:

(a)     May not award to the party any costs or attorney’s fees;

(b)     May not award to the party any interest on the judgment for the period from the date of service of the offer to the date of entry of the judgment;

(c)     Shall order the party to pay the taxable costs incurred by the party who made the offer; and

(d)     May order the party to pay to the party who made the offer any or all of the following:

(1)     A reasonable sum to cover any costs incurred by the party who made the offer for each expert witness whose services were reasonably necessary to prepare for and conduct the trial of the case.

(2)     Any applicable interest on the judgment for the period from the date of service of the offer to the date of entry of the judgment.

Likewise, the penalties for rejecting an Offer of Judgment under NRCP 68 are set forth in Paragraph (f)

(f)     Penalties for Rejection of Offer.  If the offeree rejects an offer and fails to obtain a more favorable judgment,

(1)     the offeree cannot recover any costs or attorney’s fees and shall not recover interest for the period after the service of the offer and before the judgment; and

(2)     the offeree shall pay the offeror’s post-offer costs, applicable interest on the judgment from the time of the offer to the time of entry of the judgment and reasonable attorney’s fees, if any be allowed, actually incurred by the offeror from the time of the offer. If the offeror’s attorney is collecting a contingent fee, the amount of any attorney’s fees awarded to the party for whom the offer is made must be deducted from that contingent fee.

As a result of the slight differences in the penalties available under NRS 17.115 and NRCP 68, Parties typically make a single Offer of Judgment citing to both of them. This makes the Offer stronger and prevents the loss of any penalties or the need to make a separate Offer under each Rule.

As an example, suppose Person A (the Plaintiff) is the victim of a personal injury car accident and sues the adverse driver Person B (the Defendant.) At some point during the litigation, Person A serves an Offer of Judgment on Person B pursuant to NRCP 68 and NRS 17.115 seeking full compensation for the damages and injuries caused in the car accident. If Person B, accepts the Offer within 10 days, then the case will be concluded on the terms of the Offer. If Person B does not accept the Offer within 10 days, it is deemed rejected. If Person A does not obtain a Judgment in excess of the Offer, there are no penalties to either side. (Note that neither NRS 17.115 nor NRCP 68 penalize a Party for failing to do better than an Offer they make – to do so would, as stated in Matthew v. Collman be counter to the purpose of the Statute and Rule.) If Person A, as the victim of the personal injury accident, obtains a Judgment in excess of the award, the penalties of NRS 17.115 and NRCP 68 apply.

NRS 17.117 and NRCP 68 have been considered by the Nevada Supreme Court on several occasions and the Court has made specific rulings interpreting them.  This brief post does not consider those specific Rulings and should not be considered a full discussion of either NRCP 17.115 or NRCP 68.  Federal Rule FRCP 68 has differences in both its language and case law than Nevada’s FRCP 68.  Any person attempting to interpret these, and any Rules and Statutes, should make sure to have a full understanding of any relevant case law effecting the meaning or use of those Rules or Statutes.  I strongly suggest seeking advice of Counsel should you wish to make an Offer of Judgment or receive one in a case in which you are a Party.

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