One of the most powerful tools an attorney has are words. Understanding their most efficient use comes with extensive knowledge and experience.
Failure to properly use them could result in negative consequences, ranging from reprimands to new trials.
Such was the case in Smith v. Hopper, an Arkansas Supreme Court case in which justices were divided over whether a defendant was entitled to a new trial after plaintiff’s lawyer misrepresented a certain fact to the jury during closing arguments.
The facts in question pertained to the credibility of an officer who responded to the scene of a vehicle-versus-pedestrian accident. This was a key point because the deciding factor in the case was whether the crosswalk sign, at the time of the crash, said “Walk” or “Don’t Walk.” The police officer was the only witness testifying the plaintiff told him it had said “Don’t Walk.” But first-responding paramedics couldn’t recall officers ever speaking to plaintiff, and plaintiff insisted the sign said “Walk.” So the officer’s credibility was legitimately in question.
However, plaintiff’s attorney made indirect assertion that the officer had been written up in connection with this “mess” of a report. That was not true. Plaintiff’s lawyer had based this assertion on his “subjective belief” and “humble opinion.”
Clearly, there are elements about which one can have opinions, but the issue of whether an officer is disciplined for a report that fails to meet departmental standards is not one of them. It is matter of fact. It either is, or it is not.
But these statements affected the outcome of the case. Plaintiff is not entirely without remedy here. There is an opportunity for another trial. But she will have to fight again for the $43,000 in damages she secured in the first trial.
As our West Palm Beach pedestrian accident lawyers know, this is not an ordeal people want to relive.
According to court records, plaintiff was crossing the street in the crosswalk when a motor vehicle driver turned into the intersection and struck her.
The case was not resolved out-of-court, and proceeded to trial. There, a central issue of dispute was the image displayed by electronic crosswalk sign. If it said, “Walk,” the driver would clearly be at fault. If it said, “Don’t Walk,” the case would tilt in the driver’s favor, as pedestrian could be seen as having contributed to the accident by crossing without having the right-of-way.
The officer on scene testified that immediately after the accident plaintiff told him the traffic signal said, “Don’t Walk.” A paramedic who treated plaintiff, meanwhile, couldn’t recall plaintiff ever speaking to an officer. Plaintiff testified the sign clearly indicated she could “Walk.”
All of this was presented to jurors. But then plaintiff’s attorney in closing arguments called the report a “disaster,” and said, “We feel like that (the officer) got reprimanded for that, and that’s why he said what he said.”
But there was never any evidence submitted to support this statement. The court raised this fact itself. Jurors were instructed to disregard any argument or assertion of the officer being reprimanded. Jurors then decided the case in favor of plaintiff.
Defense filed a motion for a new trial, citing “misconduct” by prevailing party. Specifically at issue was the improper statement that officer was punished for the contents of the accident report. Circuit court agreed to grant a new trial, and plaintiff appealed that order.
Plaintiff argued defendant waived right to a new trial because there was no objection to the statement during closing arguments.
Normally, if the defense would have wanted to appeal the verdict, this would have been true. But the decision to grant a new trial did not arise from an appeal. Secondly, it was the court that became aware of the error on its own, not the defense. The whole purpose of requiring an objection is to apprise the circuit court of an error. But the court was already aware of the error.
Further, circuit court listed extensive reasoning for requiring a new trial. The officer was one of three key witnesses, and the statement made by the attorney to discredit him was not supported by any evidence. This was not only improper, but may have hindered defense right to a fair trial. Thus, a new trial was warranted.
Such a mistake is totally avoidable. No injury attorney can promise a client any given outcome, but the odds of success are significantly improved when you have a lawyer who has a breadth of experience and is committed to handling your claim with the utmost care.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Smith v. Hopper, May 14, 2015, Arkansas Supreme Court
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