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This month's trial found us back in Nassau County before Judge Thomas Feinman on a case that has been up and back to the Appellate Division, Barrera v. Klinger, 111 A.D.3d 862, 977 N.Y.S.2d 42 (2013), and has dragged on for five years. This is a case that has been defended on the issue of damages for years, yet the jury tossed the plaintiff on liability grounds within a half hour of deliberations. The facts included an early Saturday morning intersection accident in Great Neck with both drivers claiming they had the right of way at a traffic light. The roads were empty, there was no witnesses, and no video. A police officer was a block away, heard the tremendous impact, and rushed to the scene, but he was not a witness. How do you convince a jury to toss the case based on the plaintiff's failure to meet his burden of proof?
On paper, the liability split typically would have been 50% against each party. Often a win like this is more dependent on what your adversary does not do as opposed to what you can do with the facts at trial. The plaintiff in this case was an undocumented alien, who testified at trial with a Spanish interpreter. The plaintiff had criminal convictions for driving while intoxicated and admitted to operation of a vehicle without a license. Much to the plaintiff's lawyers chagrin, he showed up a trial with a newly minted "Mike Tyson like/ Gang Tattoo" blazoned across his neck, highly visible to the jury. The kind of tattoo that says I never want to work at a job where I have any responsibility. The one that makes middle age, working class, Nassau County jurors gasp.
Every trial, no matter how long you have been at this, should provide a lesson. The lesson from this case was air your dirty laundry in jury selection. If this was your client, would you have been better served to bring up the convictions, the tattoo, the interpreter issue, in jury selection? Half the room in Nassau would have excused themselves on the DWI conviction alone. If you have a client with "issues", you have to explore that issue in jury selection no matter how long that takes. If the jury pool is properly vetted, at least the door is not closed on your case before you begin. Waiting until summations to explain you client's past indiscretions is fatal; by then the jury will hate you and your client. Hoping your adversary did not do his or her homework on your client is also an error. Consider some voir dire topics:
Ladies and Gentleman, as you know this case is about an accident that happened on May 1, 2012. You will be asked to determine who was a fault and we contend (your adversary's client) caused the accident and we intend to prove that to you. I have some concerns that I want to raise with you now and I ask you to tell me how you really feel about these issues. Please don't hold back. I need to know if you can be fair to "use your client's first name" knowing he has these issues in his past.
Then use the time to talk about your client. You can use this to your advantage if he got his life back together, "John is now working 6 days a week, 12 hours a day, to support his family. He came here like millions of others, poor, with no education, did not speak the language and he made some really bad decisions. He committed a crime (describe), was convicted, went to jail, and paid his debt to society. I need to know if that fact alone will prevent him from getting a fair trial here, in this Court, five years later.
At this point you have to sit back and take it. Listen and do not try to explain. You want the jurors to talk. You will be surprised at their opinions.
At least you will have a fighting chance.
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