Personal Injury & Wrongful Death

Bus accidents were the subject of action taken by The National Transportation Safety Board this week. The NTSB is the federal agency charged with investigating major transportation accidents. On Tuesday, it strongly criticized regulators at the Department of Transportation for lax oversight of the commercial bus industry.

The NTSB voted to cite the National Highway Traffic Safety Administration for failing to implement recommendations that could lead to new safety equipment on buses, including seatbelts and stronger roofs and windows. They have been urging NHTSA to enact their recommendations since 1999.

The vote came after investigators for the NTSB disclosed findings from an investigationof a Jan. 6, 2008, rollover bus crash in Utah that killed nine passengers and injured 43. It was one of a string of deadly commercial bus accidents involving passenger ejections over the past two years. Included was the Bluffton University bus crash here in Atlanta. Our lawyers represented one of the seriously injured students in that crash.

Rule No. 8 of 12: The successful cross-examiner listens carefully to what the witness says in response to his questions on cross-examination.
As set forth above, counsel should know what a witness will say in response to each question posed. No question should be asked that the answer is not known in advance. Nonetheless, sometimes, an answer more favorable than anticipated may be given by the witness or impeaching or contradicting of yet another witness. By listening closely to what the witness says on cross-examination, counsel can make sure that they take advantage of any “openings” provided by the testimony. It may be that one answer was anticipated but yet a better answer provided which creates an opening for an entire new line of examination. In short, as set forth in our entry above, if counsel is to be a good cross-examiner, counsel must learn to listen, not only to the witness’s direct testimony, but also to responses to the cross-examination underway. Many times, opportunities can be lost if counsel is too focused on their pre-prepared outline and is not listening closely to what the witness is actually saying from the witness stand.

In addition to representing victims of trucking accidents and automobile accidents, the Georgia injury lawyers at Finch McCranie, LLP also represent victims of nursing home abuse and nursing home neglect. including patients who have sustained decubitus ulcers (bed sores), falls and brutality in nursing homes. Consequently we have seen, first-hand, how victims of nursing home abuse or neglect suffer when those facilities don’t adequately take care of the people for which they are paid to care. It has been our experience that the owners of nursing homes under-staff these facilities and under pay many of the employees who actually do the hard work of caring for elderly and disabled people.
This week I read about the efforts of a Republican state representative in Tennessee who had the gall to propose to the Tennessee House of Representatives that they pass legislation placing caps on damages in lawsuits against nursing homes. Fortunately for the citizens of Tennessee, the proposal failed in a House subcommittee. What a politician will not do to try to get votes or protect the interest of big business never fails to surprise us. One can hardly imagine what the state of care would be for elderly and disabled people in nursing homes if it we not for the fear of a large damage award to keep them in line. In the last few month, the citizens of this country have all witnessed what happens when unregulated big business runs wild with no regulation or oversight. The old saying, “It’s always all about the money” is a true statement. The only way to hold business accountable for their negligence is for there to be financial consequences for their conduct.
P.S. The proposal was denounced as the “Kill Old People Cheap Act” by a Democrat representative who voted against the bill!

Rule No. 7 of 12: The successful cross-examiner listens to the witness’s direct testimony.
When a witness is called by the other side to testify against one’s client, one must be very careful to listen to that witness. Even if counsel has had the benefit of taking the deposition of the witness and has a beautiful outline to be used for anticipated cross of the witness, counsel must nonetheless listen very closely to the actual testimony given before the jury. It may be that the witness changes their testimony or offers less damaging testimony than was anticipated. It would make little or no sense to adhere to a pre-prepared outline script in such a situation. Counsel must be willing to adapt a proposed cross-examination outlined for any witness. The best way to do this is to listen carefully to what the witness is saying.
During cross-examination, counsel must keep his notes to a minimum because taking notes can be distracting and can interfere with listening to what the witness is saying. If proper investigation and discovery has been done, counsel should know what the witness will say in any event, but there have been many cases where witnesses do slightly alter their testimony, thus causing for a change in the cross-examination of that witness. Listening is the key to this rule.

Rule No. 6 of 12: The successful cross-examiner stays calm and collected whatever happens.
During the testimony of a witness, particularly where the witness is providing very damaging testimony, counsel cannot flinch or otherwise demonstrate through body language that his client’s case has been hurt. Counsel must always stay calm and collected because body language many times can betray counsel’s representation of their client.
When a witness is being evasive or refuses to answer questions or asks counsel questions from the witness stand, counsel must not argue with the witness or answer any of their questions, but rather must stay calm and collected and stay in control of the witness. As long as counsel consistently reflects a professional demeanor, this communicates to the jury confidence in one’s cause.

The Georgia injury lawyers have written before that with the growing popularity of ATV’s or All-Terrain Vehicles, serious injury and death cases are on the increase in Georgia, especially among children. Yesterday, we read about a 12-year-old Alto, Georgia girl who was killed last Friday night about 8:30 p.m. in an accident involving an all-terrain vehicle in Banks County. According to the Georgia State Patrol the girl was driving the vehicle when it overturned on private property. A 15-year-old passenger, who was not identified, was injured and taken to Northeast Georgia Medical Center. Unfortunately Georgia is one of only five states with no ATV safety legislation. Between 1982 and 2003 there were 177 fatalities involving ATV’s. Of the 177 deaths, one third were children under 16. In 2004, there were 12 fatalities involving ATV, 50% of which were children under 17.

Almost all ATV accidents involving fatalities or serious injuries occur while violating one or more of the Consumer Product Safety Commission’s “Rules of ATV Operation”. These rules are as follows:

A. Children under sixteen should not ride adult-sized ATV (90 + cc’s).

Rule No. 5 of 12: The successful cross-examiner never asks an open-ended question such as “why” unless it does not care what the answer is.
In discussing rule 4 above, we gave a good example of why you do not ask open-ended questions. If you ask a witness “why?” they will tell you. In other words, they will give a speech, which usually will hurt your client. If you are cross-examining a witness, by definition, that means that the witness has been called by the other side to offer testimony against your client. If you ask them an open-ended question, you are giving them a chance to speak. Thus, you should usually ask questions that ask for a yes or a no response. You should not even ask those questions unless you know what the answer is going to be.
In some circumstances, you really do not care what the answer is. For example, if a witness has been paid by a magazine for their story and they are alleging that a celebrity defendant has allegedly committed a sexual assault against their friend, you can ask them all kinds of questions about, “Isn’t it true that they were paid for their testimony?” etc. Of course, they will deny it, but if you have evidence that they hired an agent, were paid by the magazine, etc., then it does not really matter what they say because they will be sufficiently impeached before the jury in any event. Always ask leading questions that suggest the answer you want. Avoid open ended questions such as why or how and you will follow this rule.

We have previously written about dangerous toys containing magnets which can be swallowed by small children. Last week, toy manufacturer Mega Brands America Inc. consented to pay a $1.1 million civil penalty for failing to promptly report promptly dangerous magnetic building sets which it manufactured. The sets have been blamed in the death of a child.

As we reported, tiny magnets can fall out of toys and be swallowed or inhaled by children. If more than one magnet is swallowed, they can attach to each other and cause intestinal perforation, infection or blockage.

In December 2005 Mega Brands, formerly Rose Art Industries Inc., reported the death of a 22-month-old child to the CPSC. He died when he swallowed magnets from a Magnetix set, which attached to each other in his small intestine and created a fatal blockage.

Rule No. 4 of 12: The successful cross-examiner never asks a question unless he knows what the answer will be or doesn’t care what it is.

Unless counsel is fully prepared, has fully investigated the case and has conducted necessary discovery, this rule is difficult to follow. On the other hand, if counsel knows everything about the case then there is no reason why this rule cannot be followed and, in fact, it should be followed in all cases. Otherwise, disaster can strike.

There is an old story that illustrates the rule. A witness apparently in the 1800’s witnessed a fight between two men. It was dark outside and the witness had a poor angle on the fight. (The defendant was being tried for biting a man’s ear off and the witness admitted that he did not see the defendant bite the man’s ear off.) Counsel on cross-examination successfully was able to show that the witness could not see the alleged assault and battery for which the defendant was being tried. Rather than sitting down after establishing this on cross-examination, counsel asked one question too many. “So if you didn’t see him bite it off, how do you know he bit the ear off?” The witness answered: “Because I saw him spit it out.”

Rule No. 3 of 12: The successful cross-examiner avoids the appearance of pettiness, nit-picking or unfairness to the witness.
Even though we practice in an adversarial system, there is no necessity to be adversarial with the cross-examination of each and every witness. Righteous indignation needs to be saved for appropriate occasions where the witness is clearly lying or needs to be exposed for some form of aggravated misconduct. Counsel must reserve outrage and indignation for the proper case.
If trial counsel is unfair to any witness or is otherwise petty, the jury may subliminally hold this against counsel and by definition counsel’s client. Thus, the third rule of successful cross-examination is to be fair but firm in the cross-examination of all witnesses and where appropriate, adversarial, provided the case justifies it.