Inside District Court In view of my prior remarks, I might not seem a likely
devotee of openings. After all, they present information which will be forthcoming through testimony, so by their nature they’re repetitive. Nevertheless, a brief outline of the facts and any contested issues can be helpful to the Court and to your cause. Generally, the opening statement establishes your voice
as an advocate and, in cases where you are not familiar with the judge, allows you to make a good first impression.
It
has many potential uses, all of which can be beneficial, from the mundane, like providing the Court with the correct pronunciation of your client’s name (as well as your own), to the more substantive, such as humanizing your client for the Court with a brief introduction and deftly placing your spin on the way the accident occurred. In rear end cases, you can probably skip a lot of accident
detail. But if the case involves a more complex scenario, such as an intersectional collision where the light status is contested, you will want to offer your client’s version of the facts briefly, but with some precision, using supporting maps or photos if available. In contested liability cases, this evidentiary preview can be such a boon that it mystifies me why so many attorneys
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take a pass on it. Tink of what an opening can achieve: It lays out your account of the facts through you, and not through your too often clueless and inarticulate client.
It
makes it easier for the judge -- who’s already heard it once -- to understand the particulars of the accident as your client testifies. And it allows your client an opportunity to hear you tell the judge exactly what the critical testimony will be before he or she has to deliver it. It’s like permissible leading. Just remember:
all the good things you can do with an
effective opening might be compromised or lost if you turn the judge off by taking too much time. Get in and get out, hitting all the pertinent points. If opening lasts much more than four minutes, you are swimming at your own risk.
Plaintiff’s Direct Tere’s no magic to conducting the direct examination
of the personal injury plaintiff, which tends to follow a standard template. Start off with personal background, set the stage for and describe the accident, cover the injuries and treatment, then show the impact on work, home life, and recreational activities. Emphasize your client’s discomfort and inconvenience throughout. In offering the plaintiff ’s course of treatment, have a
plan. Break the recovery down into logical segments of time, asking about your client’s complaints and physical limitations at each step. Tis simplifies the task of testifying for the Plaintiff while it streamlines the case for the judge. In taking your client through key timeframes, start with
the period just before the accident, to establish a state-of- health baseline. Ten move on to the accident itself. Offer a description of the force of the impact and its effect on your client’s body. In other words, present the biomechanics of any injuries in your client’s words. If the Plaintiff was in an awkward position at the time of the collision, make sure the judge hears about it, especially if it contributes to a specific injury. You should plan to submit testimony on your client’s
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12 Trial Reporter / Summer 2012
condition immediately before and after the accident, later that day, and the day following. If there was a hospital visit for emergent care, cover that. Other milestones might include the first and last doctor’s visit, or the first and last physical therapy visits. You may also want to ask about complaints over defined time periods, such as the six months since the last treatment visit, or the six months prior to trial. Every case will be different. Please understand that this segmentation technique will
only work if you have taken the time to meet with your client to prepare for it. Otherwise, you run a substantial risk that your client’s course of treatment testimony will be rambling
© 2012 #1 A LifeSafer, Inc MAJ 03/2012
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