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Great Personal Injury Trial Preparation Advice

Massachusetts cases generally do not go to trial for no reason. Most personal injury cases are based in tort and, accordingly, there is a three-year statute of limitations, which starts accruing at the time of the accident and ends three years later. That means every plaintiff and his or her respective lawyer has three years to engage the defendant and his or her insurance carrier to try to work out a settlement. Although a certain degree of posturing will always occur, when there are fundamental differences of opinion on the issues of either liability or damages or both, cases can become difficult, if not impossible, to settle. This may be your first (or only) personal injury case. If that's the case, take some general trial advice.

First off, make sure you and your lawyer are fully prepared for trial. That involves extensive discussion with your personal injury lawyer to ensure he or she fully comprehends and understands all the facts of your case. Time and time again I have seen cases go to trial with the lawyer and the client arguing about the facts of the case. This is unnecessary and creates reservations in the mind of the jury. Make sure you're both on the same page.

Next, make sure all witnesses, including yourself, are well prepared to testify. That doesn't just mean feeling good about going to court and having a jury decide what's right. Most people, maybe including yourself, do not frequent courtrooms. Courtrooms are likely outside of your comfort zone, as is the idea of a jury, of people in the community, listening to every word about your case, including your own testimony, in deciding whether you win or lose. Needless to say, that can be nerve-racking. The better you prepare, not only regarding the facts of the case, but also for the mental state likely to be in in the courtroom, the better you are likely to fare.

Make sure you are familiar with how to get to the courthouse and where in the courthouse your courtroom is located. The last thing you need is to be running around frantically in the courthouse trying to find your courtroom--or worse yet, driving around the neighborhood trying to find the courthouse. Do a trial run the week before, so you know exactly where you're going. While you are at it, make sure all your witnesses know exactly where they are going as well.

Talk to your personal injury lawyer about how you should dress for court. The lawyer does not want any surprises the day of trial. Avoid this unnecessary mistake.

Practice answering likely questions prior to the day of trial. If you don't think through how you're going to answer questions, you raise the likelihood that you will make a mistake in answering them. It would simply be a travesty if the facts were on your side but you stated them in a manner that's difficult to follow and lost the jury in the process. Make sure when you state your answers, you come across clearly, articulately, and credibly.

When you are on the witness stand, be sure to listen to the entire question asked and then answer only that question. You are not up there to provide a dissertation of the facts. Answer the specific question asked of you. While we are on this point, if you hear the word "objection" by the other attorney, do not proceed to answer the question. The question is being objected to, and the judge needs some time to rule on the objection. If you answer it too quickly, the objectionable testimony will reach the ears of the jury and it will simply be too late to stop it--you can't unring a bell, as they say.

Although you likely will have prepared extensively to testify, it is not uncommon for a witness to attempt to speculate as to the answer to a question, even though the witness is unsure of the truth. When the lawyer asks you a question specifically requiring you to speculate, that question is objectionable, and you should be instructed not to answer. Sometimes, a lawyer will ask a question that doesn't necessarily call for speculation but for which you do not know the answer. Many witnesses in that scenario--in an effort to keep things moving and keep compliant with the process--will begin to speculate and verbalize that speculation as knowledge of the facts. Don't do that. Nobody wants you to speculate as to what you think might have happened. That is completely irrelevant. Our system works by establishing the facts, including what we all know to be facts, and then the jurors' job is to weigh those facts and determine what they think likely occurred. If you don't know the answer, say "I don't know." If you are confused by the question, say "I don't understand the question. Please ask it a different way."

Do not jump to agree with a leading question. Hopefully, your lawyer has adequately explained the definition of a leading question. A leading question is a question which already assumes an answer. An example would be: "You ran the red light Mr. Smith, didn't you?" Leading questions are only permissible on cross-examination, and they go very quickly. The opposing lawyer will get you into a rhythm of answering the questions and if you're not careful, you'll answer one incorrectly. You don't want to answer a question incorrectly that accidentally destroys your personal injury case.

From time to time, a witness will realize that he or she has answered a question incorrectly. It is not uncommon for a witness to realize that the lawyer asked a question earlier and that, although the witness answered the question confidently at the time, the witness now realizes that he or she answered incorrectly. The best practice in this scenario is for the witness to correct the previously answered question as soon as possible. You want to do that for two reasons: first, you don't want the jurors to have the wrong answer in their minds for any longer than necessary. Second, you don't want your credibility be negatively impacted by your testimony based on the inference by the jury that you have made several other misstatements. It can be awkward, but you need to correct your previously incorrect statement as soon as possible.

There is truly a limitless list of things you could do to prepare to go to trial. Hopefully you had extensive discussion in preparation with your personal injury lawyer and have worked on all these and other preparatory tasks to better ready yourself for trial. If that's the case, I recommend you continue researching the issue until you feel confident about walking into the courtroom. Good luck!

Categories: Personal Injury, trial, advice

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