We’re doing our closing arguments and the issue in the trial has been whether or not the elephant in the room has been addressed. The elephant usually is one of two things.
Either there was no property damage, so how in the world could our client be injured, or the client had a prior injury and that’s really what was causing the injury – didn’t have anything to do with this accident.
The decision you have to make is, are you going to avoid that elephant in the room, and not talk about it, and just narrow in on the competency of your client, his honesty, his truthfulness, you have to believe him, not withstanding anything else.
Or do you come right out and say "Okay folks, this is what we have. “We’ve got no property damage”. There are ways to overcome that problem. There are experts who could testify to the fact that even though there’s no damage, even if you were hit at only five miles an hour you could be injured.
There are experts you could bring in to testify that although the client had prior injury, this particular injury that he sustained in this accident was caused by or at least exacerbated by this accident.
Hopefully you have that expert testimony. Hopefully you’ve had the judge instruct the jury in some positive way regarding prior injuries not necessarily being held against the plaintiff, and other instructions that would be positive.
Those are the things that we do to reinforce our position with the jury. You take what you got – it might be not what you want. Clearly it would have been better for the case if the client’s car had sustained greater damage, (although probably not better for the client’s health!) It would make for a better case if the client had never been injured before.
Our philosophy, and the philosophy I teach, is that you got to go with the hand you are dealt – there is really no choice. If there’s something “bad”, you need to address that “bad” so the jury at least understands that you understand the potential “bad” and have provided the jury with enough information, rationale and an out, so to speak, so that the jurors can still believe your client and they can still come back with a positive jury verdict.
Michael A. Freedman, Esq.
Law Offices of Michael A. Freedman PA
10019 Reisterstown Road, Suite 204
Owings Mills, Maryland 21117