You are injured in a car accident. Or in a slip and fall at a local business. Or a neighbor’s dog bites you. Say you live in Clifton, where I practiced law for the first 19 years after I opened my own office. I still consider myself a Clifton personal injury lawyer. What do you do?
The first thing, of course, is to get necessary medical treatment. Right, after that, though, your next move should be to hire an experienced personal injury lawyer.
The applicable law will determine how good of a case you have. At a personal injury trial, the judge instructs the jury as to what the law is. These instructions are called jury charges.
Recently, the New Jersey Supreme Court revised several jury charges applicable to cases that personal injury lawyers handle. This post is the first of several that I hope to write in the near future on these changes.
Suppose there is a key witness in your case. You didn’t know him before the accident. He doesn’t live in Clifton. But he saw everything that happened. He saw how you were not at fault. The police listed the witness and what he said about the accident in their accident report.
Yet, for some unknown reason, the witness does not appear at trial. The other attorney asks the judge to charge the jury to hold the no-show against you. That is, the lawyer wants the judge to tell the jurors that they can assume that, because the witness failed to appear, he, in fact, would have testified unfavorably to your case.
CAN A NO-SHOW WITNESS BE HELD AGAINST YOU?
Will the judge comply with such a request? Under the applicable jury charge, recently revised, the answer is no.
Rather, to instruct a jury as the defense attorney requested, the judge would have to first find that the uncalled witness was peculiarly within your control only. Or that there was a special relationship between you and the witness. Or that you had superior knowledge of the identity of the witness or of what his testimony would be.
But here, the witness was a stranger to you. You didn’t know him, or what he would say, any better than the other side. Therefore, his non-appearance can’t be held against you.
Still, you will not receive the benefit of the witnesses’ testimony either.
To avoid this problem, make sure that you hire a savvy personal injury lawyer. The risk of a no-show witness can be minimized by your personal injury lawyer properly subpoenaing all fact witnesses.