Parties Should Have a Right to Know if Jurors Have Had Any Dealings with, or Knowledge of, Arbitrators Involved in Their Cases

I recently represented a victim of a slip and fall personal injury case in a Short Trial.  I have done many Short Trials over the years and noticed that something was missing at this most recent Trial – asking the Jury if they are familiar with the Arbitrator who rendered the Arbitration Award.

First a little background…..

In Nevada, cases with an expected value of less than $50,000.00 are usually submitted to Arbitration for a ruling by an Arbitrator.  If either Party is unhappy with the Arbitrator’s Decision, they can file a Request for Trial De Novo placing the case into either a conventional Trial or Short Trial.  During the Trial, the Jury is given evidence of the Arbitrator’s Award pursuant to NRS 38.259. That award includes the Arbitrator’s name and signature and will be included in the evidence the Jury considers as it deliberates.

As you may have seen on televised trials, movies or TV shows, Parties and their Attorneys are allowed to ask Jurors questions to help them choose a Jury that will be fair and impartial.  This is known as Jury Voir Dire and will be addresses in detail in another blog post. In my experience, Judges ask a set of basic questions prior to the Parties being allowed to question the Jurors as a group and individually.  Among those questions, the Judges ask if any of the Jurors are familiar with the Parties, their Attorneys, any of the witnesses who may be called, and, in personal injury cases, any of the physicians who treated the Plaintiff who is suing for injuries cased by an accident.

Now to the issue…..

In  all of the Trials I have done where the case had previously been heard by an Arbitrator, I have never seen/heard the Jury asked if they were familiar with the Arbitrator in a case.  I think this question has simply been overlooked.  It should be asked of every Jury Panel where a case had been submitted to an Arbitrator and the Arbitrator’s name and Award are disclosed the the Jury.

NRS 38.259 requires a Jury Instruction be given to the Jury which includes the language:

The findings of the arbitrator may be given the same weight as other evidence or may be disregarded. However, you must not give those findings undue weight because they were made by an arbitrator, and you must not use the findings of the arbitrator as a substitute for your independent judgment. You must weigh all the evidence that was presented at trial and arrive at a conclusion based upon your own determination of the cause of action.

This is all fine and well, but what about the case where a Juror may not be able to give the Award the same weight as the other evidence? A Juror may know that the Arbitrator has strong leanings in a type of case.  Since I work in personal injury representing victims of personal injury accidents, I can imagine a case where an Arbitrator has strong feelings for or against these cases.  Suppose an Arbitrator is a Defense Attorney who believes all personal injury cases are made up or exaggerated and a potential Juror is familiar with that Arbitrator.  If the Juror has good feelings about that Arbitrator he may give the Award great weight and ignores the rest of the evidence.  If the potential Juror has strong negative feelings towards the Arbitrator (if, for instance, he was the adverse attorney involving the potential Juror), she may want to give a verdict strongly contradictory to the Arbitrator’s Award to “show him.”  Parties and their Attorneys need to know whether or not any familiarity with an Arbitrator will influence the potential Juror’s ability to be fair and impartial and the Judges should be asking Jurors to disclose this information.

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.

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