Pezzano Mickey & Bornstein August 2018

AUG 2018

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Perspectives PMB

OF A TRIAL Anatomy

You’ve likely seen depictions of a trial on TV. Whether it was Court TV or a movie like “A Few Good Men,” you get a sense of what goes on in a courtroom between the attorneys, judge, and jury: the tense interactions at the judge’s bench, the dramatic moment when a witness is cross- examined, and terms like “hearsay” and “admissible evidence.” These terms play a very important role in determining what can and cannot be used in a trial. These terms fall under the rules of evidence: the governing rules for what evidence can be introduced in a trial. It’s what you often see on a show like Law and Order SVU — some startling new evidence is uncovered, but it’s inadmissible. For example, if a client falls on a sidewalk, and afterwards, the sidewalk is repaired by the company who owns it, the fact that it was fixed can’t be introduced in court — it’s inadmissible evidence. That might sound unfair, but there are reasons behind this rule. For one, it could discourage companies from making repairs after an accident if they think it might cause a court to find them at fault. And contrary to what we often see in the media, just because someone gets hurt on someone else’s premises doesn’t mean they’re legally responsible. There are laws in place that determine whether or not a company or individual is liable.

Some hearsay is admissible in court, and some isn’t. Testimony about what someone else said for the purpose of proving its truth is considered inadmissible hearsay. That testimony must come from the person who has direct knowledge of its truth. An example that comes up in most of my cases is this one: Say a doctor told you that you’re going to have pain for the rest of your life due to your accident. If you were to testify about this in court, it’s considered inadmissible hearsay — it’s just based on what someone else said. You would need to bring in the doctor to testify, in order for that evidence to become admissible. Jury selection is also a crucial part of a trial. In a civil case, you have six jurors, and 12 in a criminal case. You’re looking for people who can be objective, fair, and impartial — people who don’t come in with predisposed bias either for or against your client. If your client is an 85-year-old man, for example, you don’t want jurors who are going to dismiss him because he’s elderly. If your client is Muslim, you wouldn’t want people who are biased against him on that basis. Of course, you can’t always get into someone’s head. Sometimes it’s a gut feeling about a person; sometimes it’s the way they’ve answered a question or the rapport you think you might have with that juror.

Hearsay is a statement made by someone other than the person testifying. A witness might say, “Joe told me that the light was green.” That’s hearsay.


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