Obtaining a defense verdict - February 2020 Trial Tips

Obtaining a defense verdict on the issue of serious injury under the NY threshold law in Kings County is more difficult than it used to be. As Brooklyn demographics have changed, so has the pendulum swung in favor of plaintiffs on verdicts. The younger, more affluent, typically far-left liberal "Hipster" jurors are generally more sympathetic to a plaintiff than a defendant. It is not uncommon to question a room of prospective jurors where only a fraction of those present were born and raised in the Borough. The Brooklyn I knew as a youth in the '60s is now a memory, shown on Netflix. Today's jurors are far more hostile to your case and your witnesses and are predisposed to award money damages. I have always recommended the use of social media on the cross-examination of the plaintiff. We obtained a defense verdict on damages last year in Steven Arcuick v. Daun (522513/16) with the use of social media. At the onset of cross-examination, we reviewed with the plaintiff the limitations he expressed in performing daily activities. 

Q. Now, at that time, when you were deposed in 2017, you were asked about your complaints about this accident, correct?
A. Correct.
Q. And you told under oath that you were complaining about your back, your shoulders, and your neck?
A. Yes.
Q. And you said that you had pain every day?
A. Yes, almost every day.
Q. You said you had pain in your back at least ten times a day?
A. Yes.
Q. You also said that the pain was down your whole back, from your neck, down, all the way to your back, at least ten times a day, do you recall that testimony?
A. Yes, correct.
Q. And you also said it was a sharp pain and it locks up and it spazzes (sic), that was your word, right?
A. Yes.
Q. Do you remember all of that?
A. Yes.
Q. And all that testimony was true?
A. Yes.
Q. You talked about that you had pain in your shoulders to the extent that you couldn't move your right or your left arm?
A. Correct.
Q. Do you remember giving that testimony?
A. Yes.
Q. All of that was true?
A. Yes.
Q. And that was three years after the accident?
A. Yes.
Q. And Mr. -- plaintiff's counsel was asking you, Peter was asking you whether or not you would do food shopping, you had a long discussion about food shopping?
A. Correct.
Q. Back in 2017, you said you never food shop, right?
A Right.
Q. Because you couldn't pick up the bags?
A. Right.
Q. You also said you couldn't clean the house, right?
A. Right.
Q. Do you remember giving that testimony?
A. Yes. We then walked the plaintiff through his many online postings on Social media. 
Q. So we heard about Facebook and you heard about that you post online activities about your daily life, you put up pictures of yourself and your girlfriend and your friends online?
A. Yes.
Q. I'm going to go through those social media pictures with you.
A. Okay.
Q. So you just talked about trips, so since this accident, you've been to Vegas with your buddies?
A. Mm-hmm.
Q. Yes?
A. Yes, correct.
Q. St. Martin with your girlfriend?
A. Yes.
Q. San Juan, Puerto Rico with your girlfriend?
A. Yes.
Q. Punta Cana?
A. Yes.
Q. The Yucatan Peninsula, Playa del Carmen.
A. Yes.
Q. And where is Happy Bay Beach in St. Martin?
A. That was one of the trip stops that the tour made. After showing the jury the great life the plaintiff is living traveling to resorts in the U.S. and trips he has made outside of the country he is asked: 
Q. You are aware, Mr. Arcuik, that your online presence is not compatible with what your testimony is, the photos and the video, everything you put online show that you're living a normal life, with a nice family, nice friends, doing all the things that you want to do with absolutely no restrictions, you are aware of that? His answer won the case
:A. I'm doing them with having consequences of pain. If you are able to depict a plaintiff as severely exaggerating the extent of his or her injury, or completely fabricating a claim, a Brooklyn jury may turn the plaintiff out of Court. The proper use of social media postings, which must be exchanged in advance of trial, can be the best part of your case if used effectively. The younger the plaintiff, the more chances his or her social media accounts show every aspect of their lives. Often the social media postings help the defense in ways your own witnesses can never accomplish.

Read the transcript here.