Aggressive Defense Attorney Tactics Leads to New Personal Injury Trial

By May 15, 2020Injury Law

Although lawyers are required to zealously advocate for their clients, over-zealous advocacy often leads to trouble. A recent New Jersey Supreme Court case, Morales-Hurtado v. Reinoso, illustrates how, in the eyes of the Court, an attorney’s aggressive and inappropriate tactics ended up depriving the opposing party of a fair trial. The case involved an accident in which a bus rear-ended an automobile. The Court found that many statements and questions from the defense attorney in the case were misleading and prejudicial to the allegedly injured plaintiff. For example, during his opening statement, the defense attorney made reference to one’s expectations in our “litigious society.” Statements like this are a classic example of what the Court deems to be improper and prejudicial during a trial. The Court also highlighted the defense attorney’s questions about the plaintiff’s immigration status, citizenship, and the need for an interpreter at trial. All of which are commonly considered improper at trial because such questions are only designed to appeal to prejudice and inflame and distract the jury. The Court also found that the attorney sought irrelevant information, such as whether the bus driver had been was sued by other passengers in the plaintiff’s vehicle and whether the plaintiff’s airbags deployed.  Though the trial judge gave the jury instructions to ignore some of the improper statements, the New Jersey Supreme Court found that this was not enough to effectively avoid the risk of prejudice and ordered a new trial.

The case also involved a separate major issue involving the admissibility of expert testimony. The plaintiff’s attorney hired a “certified life care planner” to offer testimony regarding his client’s likely future medical expenses over the course of his lifetime. The expert’s opinion was based on notations in medical records as well as answers to questionnaires from the plaintiff’s physicians. The trial court excluded the expert’s testimony, noting that she based her opinion on unreliable sources of information, particularly unsworn answers to the questionnaires. In addition, the expert based her opinion on one physician’s opinion who acknowledged the possibility of additional medical expenses in the future but refused to testify within a reasonable degree of medical probability that the expenses would be incurred.

In guiding the lower court’s analysis of a life care planning expert’s testimony, the New Jersey Supreme Court acknowledged that the expert witness can rely on the opinion of other experts, as long as they are expressed in terms of a reasonable degree of medical probability. It is worth noting that a life care planning expert is not a physician qualified to identify a persons’ medication or treatment, but an expert who forms an opinion regarding the probability of future medical care in reliance on facts and other data. Because of this, the expert had to demonstrate that she relied on an opinion that a physician actually held and identified with. While not ruling on the admissibility of the expert witness’ opinion, both the Appellate and Supreme Courts agreed that excluding the expert testimony was an error. The Court noted that the possibility that the expert improperly considered some information cannot cause the exclusion of the whole testimony.

Though clients often expect an aggressive TV style lawyer, this case illustrates why its important to zealously advocate within the bounds of the rules of the courtroom. Otherwise, a client could end up having to pay for two trials.

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