 |
 |
 |
||
Contact Us
|
Continued... Page 7 > The Visualized Opening Statement A recent case is instructive on both the procedure and the possibilities of using effective visuals in opening statement to persuade a jury. Todd Holman was 21 year old college student and gifted athlete who was seriously injured while a passenger in a left-turning Audi Fox. An oncoming Honda Acura T-boned the Audi, literally splitting the vehicle in two pieces. In the ensuing lawsuit, the oncoming driver's insurance company made a reasonable settlement based on evidence that the Acura was exceeding the posted speed limit, going 60 m.p.h. in a 30 m.p.h. zone. However, the insurance company for the driver of the left-turning Audi refused to admit fault for this accident under the deception doctrine, claiming that the speed of the oncoming Acura deceived of the driver into thinking that a left turn could safely be made. When boiled down to the most critical element, the liability in Holman v. Mullan hinged entirely on what the driver of the Audi could see as he began his left turn. As the disfavored driver under the rules of the road, the jury would be most interested in the question of whether the driver of the Audi should have seen the oncoming Acura and known to yield the right of way. To this end, plaintiff's counsel then retained a competent accident reconstructionist and an experienced filmmaker to create and film visibility studies under similar conditions as the night of this accident, using exemplar cars. Needless to say, the end result of this effort was a fifteen-second film that was extremely damaging to the deception doctrine defense of the Audi driver. It showed that the Audi driver could have clearly seen the oncoming Acura from at least three blocks away and never should have attempted the left turn. Once the filmed visibility study recreated the view available to the defendant driver, the question needed to be asked where this evidence would be most effective at the trial itself. In asking this question rhetorically without reference to what is ìusually done,î my answer was ìopening statement, of course.î Of course, the traditionalist view is that a piece of evidence such as this ìsimply isn't allowedî in opening statement. Yet, I could find nothing in reported cases forbidding the use of visual evidence of this type in opening statement. So, why not? Instead of always taking the rear view mirror approach of ìwhere is the precedent?î I devised a plan to try and preadmit the videotape of the visibility study for use in opening statement. In Holman v. Mullan , a formal pretrial motion was filed before the trial judge to preadmit the filmed visibility study as evidence for all purposes, including its use in opening statement. Both the accident reconstruction expert and the filmmaker were scheduled to appear at the pretrial hearing for foundation purposes, even though they would later testify in the trial as well. Although this added some extra expense to the expert witness budget, this was money well spent because of the potential outcome of using this evidence where it would do my client the most good, in opening statement. |
|||
Disclaimer | Sitemap | Contact Us | 2008 All Rights Reserved | Site Developed by Catherine Flemming | Designed by Suryn Longbotham |
||||