Inside Personal Injury Trials: What to Know Before Court

Despite what legal dramas might lead you to believe, the vast majority of personal injury cases—somewhere between 95% and 97%—resolve outside of court. If your case goes to trial, you’re part of a small minority.

While settling a case often shortens the lawsuit process, a good attorney will always evaluate whether it makes sense to take a case to trial if the defendants refuse to offer fair compensation. Here’s what you need to know if there’s a chance your personal injury case might go to trial.

Need to Know:

• Much of the essential work of a personal injury trial is accomplished during discovery and jury selection, which occur before the trial even starts.
• During trial, both sides of a case present testimonial evidence through direct and cross-examination. They also present physical and demonstrative evidence.
• A trial culminates in each side’s closing argument.
• A good attorney will prepare you carefully for trial, ensuring that you are ready to testify and won’t be surprised by any questions or proceedings.

In This Article:

• Pre-Trial: Investigation and Preparation
• Opening Statements
• Testimony and Examination
• Closing Arguments
• How Trial Skills Help the Litigation Process

Pre-Trial: Investigation and Preparation

Personal injury cases are constructed long before trial starts. After filing a lawsuit, your attorney will proceed with the discovery phase of your case—investigating the circumstances of your accident, locating witnesses, taking depositions and issuing demands for any information that might be needed.

Discovery is typically the longest phase of a personal injury case; in some cases, it can last years. That’s for a reason. Once your attorney has filed a note of issue—indicating that discovery is completed and that a trial can go forward—your legal team, in theory, will no longer be able to admit new evidence, except in exceptional cases. A smart attorney will carefully weigh when to file the note of issue, being careful not to do so before building up your case to his or her satisfaction.

Building a good case is not just about finding evidence; it’s about making sure that all the evidence your case needs will be admissible in court. Moving items into evidence requires careful planning in order to abide by the chain of custody—that is, the process by which potential evidence is moved from one party to another to ensure accuracy and prevent tampering. For example, medical records, such as X-rays and MRI scans, need to be transmitted directly from the medical provider to the courthouse. Your attorney has to serve the proper subpoenas for each type of information needed and meet all necessary deadlines, while ensuring the availability of any witnesses you will need well in advance.

Once the note of issue has been filed, your attorney can proceed with jury selection. If discovery is about assembling your story, jury selection is about finding the right audience.

Because the outcome of a personal injury case depends upon the receptivity of its jury, good jury selection is especially critical to an effective trial process. Proceeding with jury selection also shows a defense that you are serious about taking a case to trial. Many out-of-court settlements are secured during or after jury selection, when the reality of what trial will mean starts to sink in for the defense.

Opening Statements

At the start of trial, the attorneys for the plaintiff and defense each have the opportunity to present the case in their own words. Because the plaintiff’s side has the burden of proof, the plaintiff’s attorney speaks first. If you’re concerned that this will put your case at a disadvantage, don’t be: the opening statement is not an argument. At this stage of trial, your attorney is presenting evidence which they anticipate will be introduced during the trial. Explicitly advocating for an interpretation of those facts will come later. 

If your knowledge of trial is mostly drawn from criminal cases, it’s worth noting that opening statements play a somewhat different role in civil cases, such as a personal injury case. In a criminal case, prior testimony is considered hearsay and is, generally, not admissible in court as evidence. However, in civil trials, written and recorded depositions, a form of prior testimony, are considered admissible under the law.   

Admitting a deposition into evidence offers a unique opportunity for civil attorneys. They can decide whether to introduce details of the case obtained at deposition from the start, or whether to introduce them later, through witness testimony. A skilled trial attorney will carefully weigh how to reveal your story, deciding which approach will have the greatest impact. This also underscores how important a role discovery plays in the trial process.

Testimony and Examination

Following the opening statement, the two sides, starting with the plaintiff’s side, call people to the stand to testify.

Your Own Testimony

If you are the injured party, witness testimony is likely to include your testimony. A good attorney will prepare you extensively for this moment long before the trial date, going over the questions that he or she will ask you in the process of direct examination and ensuring that you know exactly how to respond. You should not be surprised by any of your attorney’s questions, and by the time you go to trial, your answers should be second nature.

Direct examination functions like an interview; because its purpose is to help you to tell your story, its questions are open-ended. Your attorney will also prepare you for cross-examination—that is, examination by a defense attorney. A cross-examination probes your story for inconsistencies.

Unlike the “who,” “what,” “when” and “where” open-ended questions of direct examination, cross-examinations tend to consist of questions answerable by a “yes” or a “no.” While cross-examination can be nerve-wracking, the brevity of the format may help you. Witnesses would be wise to keep their responses brief and not to argue with the attorney representing the defense. That is the attorney’s job.

The Role of Expert Testimony

Expert testimony can be as vital as lay witness testimony.  A persuasive and well-credentialed expert can shape the outcome of a fiercely contested trial.  This is particularly true in cases involving labor law, the law that is applicable to construction accident cases. Because members of a jury are not always aware of the “right” way to do things on a certain type of work site, the “wrong” behavior might not stand out to them unless it is highlighted by a person with experience in the field.

For example, in a particularly challenging case handled by Block O’Toole & Murphy, our client, a delivery truck operator, was hit by a forklift in the delivery area of a Fairway supermarket after leaving his truck. When the forklift hit our client, its operator was driving the vehicle backwards—as is standard procedure for operators when driving a forklift loaded with product. A layperson’s analysis might have concluded that the forklift operator did nothing wrong, and that our client was entirely at fault for failing to be more careful while walking.

Partners Scott Occhiogrosso and Frederick Aranki, who handled the case along with partner Daniel O’Toole, investigated the scene of the accident for themselves. They quickly noticed that the supermarket did not have an appropriate receiving area for trucks to deliver goods. Instead, the trucks were delivering goods on the street in front of the store, and the forklift operators were crossing the street with the contents of the deliveries. In other words, the supermarket had failed to create a safe environment for delivery drivers and forklift operators to do their jobs. The forklift operator had contributed to these unsafe conditions by failing to watch where he was going.

Our handling attorneys retained a forklift expert who explained how a receiving area should be designed and how a forklift should be operated. His testimony helped the jury understand the nuances of the situation. The jury ultimately returned a verdict of $3,258,000 for our client, finding the defendants—both the supermarket and the forklift operator—90% responsible for the accident.

Closing Arguments

If the opening statement is about assembling the facts, the closing argument is about piecing them together. At this point, your attorney will not only explain your story from beginning to end but will also make an argument about what those facts mean, meticulously illustrating why you deserve justice in your case.

Unlike the opening statement, when the plaintiff’s attorney goes first, the closing argument allows your attorney to have the last word. This means that while a good attorney’s opening statement is planned out well in advance, some improvisation is inherent to a strong closing argument. Your attorney may reference information offered by the defense or respond directly to the defense’s arguments. He or she will remind the jury of the evidence that came up at trial, emphasizing crucial points that the jury should keep in mind before coming to a conclusion.

How Trial Skills Help the Litigation Process

While only an experienced attorney can offer insight into how your specific situation might resolve, retaining an attorney with strong trial skills will benefit your case, whether in negotiations, in building a compelling argument, or while pursuing alternative dispute resolution (ADR).

Take the trial skill of cross-examination, which is critical to many successful verdicts. In the previously-mentioned case involving the Fairway forklift, we were helped, not only by our expert witness, but by a strong cross-examination of the forklift operator from partner Scott Occhiogrosso. This cross-examination demonstrated that the forklift operator understood that there was a safer way to operate, meaning that he knowingly risked injury to others by acting as he did.

But cross-examination skills also help us to achieve excellent results in mediations. For instance, in a ceiling collapse case that settled for $2,300,000, our client and his family had repeatedly complained to their superintendent about the damage that a water leak was doing to their bathroom ceiling. With the help of a plumber, the superintendent made a temporary repair using cardboard, promising to return and make a more permanent repair the following week. Before that could happen, the leaking ceiling collapsed on our client.

By investigating, we determined that our client’s ceiling was made from sheetrock. His superintendent had neglected to use the proper methods for preventing wet sheetrock from collapsing, which would have included immediately dismantling the portion of the ceiling that was wet. This knowledge was not in itself enough to hold the superintendent responsible. We needed to prove that he understood how he should have dealt with the sheetrock. Partner Joseph Donahue accomplished this by using his cross-examination skills to conduct a careful deposition of the superintendent.

Donahue’s deposition further revealed that, while the temporary cardboard repair had been the plumber’s idea, the superintendent had not questioned the decision and had not warned the family against going into the bathroom before the permanent repair was made. Acknowledging that he was responsible for addressing big and small complaints around the building, he also admitted that the leak in our client’s ceiling was a “big complaint”—in other words, that he knowingly failed to take the problem with the seriousness that it deserved.

Contact Block O’Toole & Murphy

Our attorneys offer free legal consultations to injury victims. To speak with a Block O’Toole & Murphy lawyer, please call 212-736-5300 or fill out our online contact form. We serve New York and New Jersey.