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You have suffered a horrific accident because of somebody else's carelessness and now you are recording all the details about all the pain and all the difficulties that you undergo each day. You have filed a personal injury lawsuit, and the defense attorney asks you whether you have kept a diary about the events that occurred. How should you respond to such a question. Advantages of Keeping a Pain Journal After a terrible accident, you could be at the hospital or at home recuperating. If you want to keep a pain journal and record everything that is going on with you, then it is poignant for two reasons. First, this journal documents the problems exactly that you are having day to day. Secondly, this journal helps you to go back and see how much improvement you have made over a period. Be Honest about Your Journal Now, when you decide to file a personal injury lawsuit, the defense attorney will have the opportunity to question you, during pretrial testimony known as a deposition, which is held under oath. One of the questions that the defense lawyer is most likely to ask you is whether you have kept a diary or journal, where you have kept notes about the problems you had and the treatments you received. The Defense will Question Your Different Entries in Your Journal If you have kept a pain journal, and you answer yes, what that means then is that the defense will now be entitled to see everything that you have written down in the journal. This is significant and the defense will want to do this for a key reason. The defense will want to fish for information that has nothing to do with your injuries, but can be used against you at trial, or information that shows your injuries are really not that serious. If you are keeping a pain journal or diary about all the problems, you are experiencing after the accident, just remember, the defense is going to ask you this question, and you have to respond honestly. When you accept keeping a diary, you will have to provide the defense a copy of it. The defense will thoroughly go through your diary and read every single line to find out all sorts of information. Then the defense is going to ask questions about the different entries you have made in your journal. Hence, keeping a pain journal or diary, documenting your suffering and treatment is magnificent, since it provides you with information about what you went through and the progress of your treatment. However, you will have to reveal the existence of this diary if asked during a deposition, and provide a copy of the same to the defense. The defense attorney will use the information in your diary to disprove your claim or mitigate the seriousness of your injuries. Gary Silverstein Gary Silverstein has been a partner of Rosenberg, Minc, Falkoff & Wolff since 2001, and an associate of the firm since 1989. Mr. Silverstein graduated with a Bachelor of Science degree from State University of New York College at Oneonta in 1983. Mr. Silverstein holds a degree of Juris Doctor from the University of Miami School of Law, having graduated in 1988.

Is there a certain number? How many witnesses do you need to prove your civil case in New York, whether it is an accident case, medical malpractice case, or a wrongful death case. The answer is that it depends. Every single case is different, and will have its own set of facts. For example, you are a patient in a hospital, and you believe the doctor and hospital violated the basic standards of medical care. In such an instance, you will need multiple medical experts to come and testify on your behalf. Additionally, you might also need other witnesses who saw and witnessed what went on at the hospital. It could be the person sitting right near you and so on! Do not rule anyone out and treat everyone respectfully! You may need all the help you can muster in the end to win this case. What happens in a car accident case, where you are going through an intersection and somebody goes through the red light and hits your vehicle? In this case, only one or two witnesses might be available who actually saw the action sequence when the accident took place. Additionally, you will need medical experts to come in to testify about the injuries you have suffered and your medical condition. You need to Prove Liability However, the main question is, how many actual witnesses do you need to show that there is liability or responsibility on the part of the people whom you have sued for violating the rules of the road or violating the basic standards of medical care that caused you harm and injury. Based on this information, it all depends on what the set of facts were, what the circumstances were, whether there were other witnesses that saw and observed what actually occurred. On top of this, it will depend on the specialty, the type of problem you had, and what problems you are likely to have in the future because of your injuries. Therefore, there is no clear-cut simple answer, which says you only need two witnesses in a car accident case, five witnesses in a medical malpractice case, and so on. It does not work that way, since each case is so distinct. You need to look at what was done wrong, who caused the harm, who was negligent, and who violated the rules of the road or the standards of medical care. Witnesses are Critical After the lawyer has studied your case, he will start piecing together what actually happened, and which witnesses are vital to show to the jury that you are more likely right than wrong. However, it is always critical to produce witness or witnesses in support of your claim, even if the liability or wrongdoing is obvious. Secondly, in both accident cases and medical malpractice cases you will need medical experts to come and testify about your injuries, the treatment you are receiving, whether you will need ongoing treatment, or surgery in the future. In an accident case, people who have actually witnessed the accident will be important, whereas in a medical malpractice case there will be several things explained to the jury from your medical records by expert medical witnesses. Therefore, the number and type of witnesses will vary depending on the peculiarities of the individual case. There is nothing wrong with plenty of witness who all say the same thing but some witnesses are going to be more favored by your attorney than others. Gary Silverstein Gary Silverstein has been a partner of Rosenberg, Minc, Falkoff & Wolff since 2001, and an associate of the firm since 1989. Mr. Silverstein graduated with a Bachelor of Science degree from State University of New York College at Oneonta in 1983. Mr. Silverstein holds a degree of Juris Doctor from the University of Miami School of Law, having graduated in 1988.

Trying to Picture the Accident Scene In every type of car accident, it is critical for the accident lawyer to go to the accident scene, and to see for himself where this incident occurred. There is an important reason for this. After the accident, you the injured victim are going to consult an accident attorney and you are going to explain to him, how the accident occurred. The attorney will try to form in his mind the picture of the accident scene, and he will most probably ask you additional questions inquiring about: How many intersections there were How many lanes of moving traffic there were Was the area residential or commercial Was there parking on either side of the road Was the incline of the road uphill or downhill Was the accident site just after a curve The accident lawyer will ask you many questions about the accident scene to form a correct picture in his mind. It is Critical for the Lawyer to Visit the Accident Scene However, even if you provide photos of the scene to your lawyer, taken from different angles, there is no substitute for him than going to the accident scene and looking himself. Even if those pictures have been printed out in large copy on a panoramic setting, nothing equals the human eye and mind being on that location. Visiting the scene will give your lawyer the correct perspective of where you were coming from, and the perspective of the other driver who came and hit your vehicle. All this is critical for truly understanding the dynamics of how the accident occurred. The lawyer cannot formulate in his own mind the correct accident scene by simply relying on your sentences or word pictures. Unless he physically visits the accident site, he will not be able to envision exactly what occurred as already stated. A stellar and committed lawyer will not only visit the accident scene, but also ask you to come along, so that you can point out different landmarks on the way, where your vehicle was going, and from where the other vehicle was coming before it hit your car. By doing this, the lawyer will gain a correct understanding about exactly what happened, including: Where you were at the time you saw certain events Where the other car was At the moment of impact where all this occurred in relation to the roadway, the intersection and the surroundings All this is critical for your attorney to know, so that he can correctly grasp who was responsible for the accident. If the lawyer does not visit the accident scene, he could be leaving out important details that may be critical for proving the claim of his client. The defense will be trying to prove that you are at fault for the accident or partially at fault for the accident. If your lawyer is unable to counter these defenses effectively, you will either lose your case or your compensation will be drastically reduced. If your attorney does not visit the accident scene then perhaps they are not taking your case as serious as they should. Gary Silverstein Gary Silverstein has been a partner of Rosenberg, Minc, Falkoff & Wolff since 2001, and an associate of the firm since 1989. Mr. Silverstein graduated with a Bachelor of Science degree from State University of New York College at Oneonta in 1983. Mr. Silverstein holds a degree of Juris Doctor from the University of Miami School of Law, having graduated in 1988.

During closing arguments, can a lawyer turn around in front of the jury, and call the opposing lawyer, a liar? A Lawyer cannot Call the Opposing Lawyer a Liar The plaintiff's lawyer says its black, the defense will say white, one side says yes and the opposing side says no. For, everything claimed by the plaintiff, the defense would say just the opposite. Is the defense lying or being untruthful? Is the defense lawyer shading the truth? When the plaintiff's lawyer obtains the opportunity to address the jury with his closing remarks at the end of the trial, can he tell the jurors that the defense attorney is a liar. The answer is no. A lawyer cannot call the other lawyer a liar in his closing remarks. Point Out the Inconsistencies and Untruths However, there may be instances where the people who are being sued have said things that are contradictory compared to what they have stated earlier, or said untruthful things. The defense may also have tried to hide the truth. The plaintiff's lawyer can show all such contradictions to the jury. He can show all this without actually coming out and saying that the defense was lying. The plaintiff's lawyer can reveal all the inconsistencies of the defense to the jury, but he cannot call the defense lawyer a liar or say that he has been lying throughout the case. The jurors are smart enough to recognize if there are inconsistencies. If there were untruths, the lawyer would have brought that out during the course of the trial. The lawyer will have the opportunity in his closing remarks, to explain to the jury how the defense has shaded the truth, by showing all the inconsistencies in their statements. Too Bold; Going too Far The lawyer can even tell the jury that they cannot possibly believe the defense; however, he cannot declare outright that the defense lawyer is a liar or that he has been lying to the jury throughout the case. The jury is smart, they would have observed the inconsistencies, and will actually know that the defense is lying, and there is no necessity for lawyer to say this. The lawyers should allow the jury to come to that conclusion on their own. The lawyer simply has to highlight the many inconsistencies in not only what the defense is saying but also about the things that their attorney has stated. The goal of the plaintiff's lawyer should not be to focus on the defense's lawyer or his antics during the course of the trial, but rather to show the jury that there have been inconsistencies, there have been untruths, and there have been shading of the truths. Therefore, because of all this, the lawyer can tell the jury that they cannot possibly believe the defense's witnesses. The lawyer can also tell the jury about his witnesses, the statements they have made are consistent, and that they have credibility. This will show the clear differences between the witnesses of both sides. Gary Silverstein Gary Silverstein has been a partner of Rosenberg, Minc, Falkoff & Wolff since 2001, and an associate of the firm since 1989. Mr. Silverstein graduated with a Bachelor of Science degree from State University of New York College at Oneonta in 1983. Mr. Silverstein holds a degree of Juris Doctor from the University of Miami School of Law, having graduated in 1988.

You have been involved in a significant car accident and you get in touch with the insurance company of the careless driver. The company wants to settle the case with you, but before that, they want you to sign a document called a release. Should you ever sign such a document, before you have spoken to your attorney? The insurance company of the careless driver has ongoing discussions, and finally they decide to make you an offer. You think the offer is quite reasonable, but before they can send you the check, they want you to sign a document called a general release. This document, says that you can never come back and bring a lawsuit against their client. Now, do you go ahead and sign this immediately, so that they can send you the check? Or, would it better to have the document reviewed by your attorney, who handles accident cases on a daily basis. The Insurance Company will make a Small Offer The insurance company, most likely is not going to be giving you full value for what your injuries are truly worth. Insurance companies do this because they know you do not have experience valuing this type of injury. They know you do not have experience negotiating with the insurance company. Hence, unless you are totally confident and have years of experience doing this, you may be at a significant disadvantage to sign that release in expectation of obtaining that settlement check right away. An Experienced Accident Attorney can Provide the Right Advice On the other hand, an attorney who handles these types of cases everyday is going to know exactly what your injuries are, he is going to know what the insurance coverage is, he is going to have an ongoing discussion with the insurance company, and he will be able to document and support all the problems you are having now. Your lawyer will also know the type of health problems you are likely to have in the future. You really do not know what your health problems are going to be in the future, unless you have spoken to medical experts. If you need further surgery or rehabilitation in the future, who is going to pay for it? You should realize that when you sign that general release document you will end your ability, and you will cut off all of your rights to after and sue the person who is responsible for causing the accident. Hence, when you sign the release, you are giving up all of your rights and you cannot initiate a lawsuit in the future against the careless person. Therefore, it is pivotal to consult with your lawyer first, as he knows what your injuries are worth, and whether the settlement offer is fair and equitable. Unless you do this, you might end up with an amount that is pitiful and does not cover your costs, and you will not be able to sue the driver in the future. And you will realize you just made a colossal mistake. Robert Wolff Robert H. Wolff is a member and partner of the prestigious New York City Personal Injury Law Firm of Rosenberg Minc, Falkoff, & Wolff, LLP. Mr. Wolff graduated from SUNY Albany, cum laude, in 1978 with a B.A. in Psychology and American History. Thereafter, he attended St. John’s University School of Law, where he was a member of the Moot Court Team and the Criminal Law Society, graduating in 1981 with a Juris Doctor’s degree.

Your personal injury case has gone to trial and the judge has declared a mistrial. How soon afterwards will your case be retried? Reasons for Declaring a Mistrial The answer is that it depends. Here is an example. A lawyer is representing a person in a personal injury case. The person is staying at a resort and he has been injured in a sledding accident. The lawyer keeps referring to the sled that his client was on, as a pie pan or a pie dish, because the sled was nothing more than a saucer about thirty inches in diameter that was made by that person in their garage. The judge had a legal reason for not allowing the lawyer to refer to the sled as a pie pan. However, the lawyer kept referring to the sled as a pie pan, in front of the jury. The lawyer wanted to convey to the jury and make them realize that the sled was a child's toy, which his adult client was riding when he went down the hill, as the accident occurred, and suffered injuries from. Every time the lawyer referred to the sled as a pie pan, the defense attorney objected, the judge sustained the objection, and specifically told the lawyer not to use the term. However, the lawyer continued to do it, in his client's interests. The lawyer knew that there was the possibility of the judge declaring a mistrial when he called the sled, a pie pan, the fourth or fifth time. However, the lawyer felt he had to keep doing it, in order to convey to the jury that what his client was riding was clearly inappropriate for an adult. In such a situation, if the judge declared a mistrial, he would have yelled at the lawyer or have admonished that attorney in a clear tone. However, the lawyer has an obligation to his client, to represent him as fully and properly as the lawyer can, without overstepping the bounds of what is proper. In this case, the lawyer believed that he was not overstepping the bounds, and he believed the law was on his side. If the judge declares a mistrial, in all likelihood, he would dismiss that jury. The two attorneys would then have to go back to the jury selection process, and begin choosing a fresh jury, all over again. In all likelihood, this would be done on the very same day that the mistrial was declared. When will the Retrial Take Place However, there are instances where the judge can have the attorneys come back a day, a week, or even months later because there might be other legal issues that might have to be resolved before the new trial can start all over again. Hence, there is no dictating for sure when the case will be retried. It will depend on how monumental the case is, and whether there are legal issues pending that need to be resolved, before starting another trial. Robert Wolff Robert H. Wolff is a member and partner of the prestigious New York City Personal Injury Law Firm of Rosenberg Minc, Falkoff, & Wolff, LLP. Mr. Wolff graduated from SUNY Albany, cum laude, in 1978 with a B.A. in Psychology and American History. Thereafter, he attended St. John’s University School of Law, where he was a member of the Moot Court Team and the Criminal Law Society, graduating in 1981 with a Juris Doctor’s degree.

If you can no longer have sex because of the personal accident injuries, you have suffered, due to doctor's carelessness; you can claim compensation, by filing a personal injury lawsuit. However, how does one actually prove this during the course of the lawsuit? How to Show You are Unable to have Sex with Your Spouse This question comes up many times. The client will tell his lawyer that as part of the injuries he has suffered, he no longer has the ability to engage in sexual intercourse, and how can he prove that. This can be done in a number of ways, through your medical records. During the course of time, you are recuperating and under care of a doctor, you would have told him about the specific complaints and the problems you were having. You are also likely to tell him about the things you can no longer do. Many patients do not like to talk about this topic, even with their doctors. However, the reality is, this is the key way, your lawyer will be able to show in court that you are more likely right than wrong, and your claim is actually true. Questions the Defense is Likely to Ask at the Deposition When you file a lawsuit against a doctor, claiming that he has violated the basic standards of medical care, your lawyer will have to obtain all your medical records to confirm the claim that there were violations of basic standards of care, and these violations caused your particular injuries. On the other hand, the lawyers of the hospital or doctors whom you bring the case against, will be doing the same investigation, it will be just many months later. They will also look into your medical records to find out: What complains did you have What health problems did you have What did you tell the doctor What did the doctor's examination show Is there a physical reason why you no longer can engage in sexual relationships with your spouse Based upon your medical records, the defense will form an opinion or conclude in their own minds whether you are able to engage in sexual activity. Additionally, during the course of your lawsuit, the defense will have the ability to question you during the deposition, about what you can and can no longer do. The deposition is a question and answer session held under oath, well before the trial. At this session, the defense lawyers will have the ability to ask you questions about the injuries you have suffered and what are the things you are unable to do or have difficulty doing because of those injuries. This is how you show that you are unable to have sexual relations with your spouse. The defense cannot place a hidden camera (or perhaps not hidden) in your bedroom to see if you are able to have sex or not. It does not happen that way, instead, they rely on your testimony, and the doctor's information in your medical records, to determine whether, what you are claiming is in fact true. You also do not have to record you and your wife in bed failing to have intimacy for anyone to believe you. That is not necessary. Robert Wolff Robert H. Wolff is a member and partner of the prestigious New York City Personal Injury Law Firm of Rosenberg Minc, Falkoff, & Wolff, LLP. Mr. Wolff graduated from SUNY Albany, cum laude, in 1978 with a B.A. in Psychology and American History. Thereafter, he attended St. John’s University School of Law, where he was a member of the Moot Court Team and the Criminal Law Society, graduating in 1981 with a Juris Doctor’s degree.

Can You Switch Trial Judges Your personal injury case has come up for trial, and it is assigned to a particular trial judge. Now if you do not like this particular judge, can you go ahead and switch trial judges? The answer is no. You will not be able to change the judge just because you do not like him, or just because he has made rulings against you. However, there are very limited instances where you can have a particular trial judge removed from the case. This means, you have to ask the judge to recuse himself, or excuse himself from trying that particular case. However, in order to do that, you should have a poignant and concrete reason. The Judge has a Connection with the Defendant For instance, it is a medical malpractice case and you are suing a doctor for violating the basic standards of medical care, and you have suffered significant injuries because of that violation. In this scenario, this judge who is assigned to your case happens to be a patient of this doctor you are suing. Now you will have to ask the judge to excuse himself from the trial. Your lawyer will tell the judge, "Your honor, we have learnt that you are in fact a patient of this doctor we are suing, and therefore we are asking you to recuse yourself". The judge will then give both the lawyers the opportunity to put forward their arguments. After hearing both sides, the judge will have to make a decision about excusing himself from this case or not, because there was some connection with the doctor. The lawyer might have claimed that because of this connection, it is possible for the judge to favor the doctor. If the judge accepts this possibility, he might recuse himself from the case. There should be a Valid Reason for Asking to Switch Judges There might be other instances where the connection is not so obvious, and the judge might not accept any arguments and will not excuse himself from the case. Hence, just because you do not like the judge, or you do not like the judge's rulings of his prior cases or of your present case, it does not mean you can ask the particular judge to excuse himself and bring in a new judge. Unless there is a valid reason and there is a prolific argument that shows a strong connection of the judge with either of the two parties, the judge cannot be switched. Secondly, it is the judge who is assigned to your case, who will take the decision to recuse himself or not. This means, unless the judge feels he is going to be biased to any one of the parties of the case, he is not going to excuse himself. Robert Wolff Robert H. Wolff is a member and partner of the prestigious New York City Personal Injury Law Firm of Rosenberg Minc, Falkoff, & Wolff, LLP. Mr. Wolff graduated from SUNY Albany, cum laude, in 1978 with a B.A. in Psychology and American History. Thereafter, he attended St. John’s University School of Law, where he was a member of the Moot Court Team and the Criminal Law Society, graduating in 1981 with a Juris Doctor’s degree.

In your car accident case, the insurance company does not want to pay you, what you think your case is worth. What is the likelihood that they are going to increase their settlement offer as your case progresses towards trial? There is Various Possibilities when You can Reject Settlement Offer The answer is that they might, but then again they might not in regards to the title above. Every case is individual and unique. Let us say, the defense actually makes you an offer to settle the case, and you decide for whatever reason that the money they are offering is not sufficient. You have the expectation that you think that as the case progresses to trial, before it actually goes to trial, at some point they are going to increase the offer and negotiate a settlement. Not any Higher Can such a thing happen? The answer is yes, it can happen. However, there is a flipside to this coin. One of the directions this track could take is that the defense might actually withdraw their offer. The defense might turn around and say this is our final offer and no other amount that we propose in the future will be higher than this one sitting right in front of you now. In such an instance, you may have no choice but to go ahead with the trial if you believe that monetary figure does not fairly represent the painful and financial setbacks you have endured. Your attorney and you will have to convince the jury to provide you with compensation that correlates to your costs (medical and otherwise) and suffering, and await their verdict. Another scenario that could happen is that the defense can reduce their offer. Hence, when they hear you have rejected their offer, and the case is progressing to trial, they can say that they have reassessed the matter, and found that they had offered too much. Now they make you an offer that is less than their original offer. In such an instance, you will have to decide whether the reduced amount is acceptable or whether you would like to go to trial and accept the jury's verdict. It appears there are many different directions this process can take, and you should not necessarily expect that since you turned down their initial offer, they are going to increase the amount. This is true during the negotiation process as well. You might think that if you keep rejecting offers during the negotiation, the defense is going to keep increasing their settlement amount as your case nears trial. You may think that they will start to believe that you know more than them and that your pain & suffering was that severe. This may not be so at any particular point in the negotiations process. Then you might be stuck in a predicament of being left with no choice but to go ahead with the trial and hope for a favorable jury verdict and there is not any unforeseen circumstances that arise. Listen to the Advice to an Acute & Standout Attorney Rejecting a settlement offer should not be based on a gamble or based on the expectation that the defense will keep increasing the amount before the trial commences. Therefore, it is critical to have a marvelous and sharp accident lawyer, who knows the true value of your case, he is confident of proving your case in court, and thinks he can convince the jury to award you with a sizeable compensation. So basically, whenever any settlement offer is made, your lawyer will discuss the matter with you, and advise you whether it is wise to accept the offer or not. Robert Wolff Robert H. Wolff is a member and partner of the prestigious New York City Personal Injury Law Firm of Rosenberg Minc, Falkoff, & Wolff, LLP. Mr. Wolff graduated from SUNY Albany, cum laude, in 1978 with a B.A. in Psychology and American History. Thereafter, he attended St. John’s University School of Law, where he was a member of the Moot Court Team and the Criminal Law Society, graduating in 1981 with a Juris Doctor’s degree.

If a settlement offer is made in an accident case, wrongful death, or medical malpractice case, does your attorney have to inform you about the settlement offer. The answer is yes, your lawyer has to tell you about the settlement offer. Your Attorney is Legally Obliged to Inform You About a Settlement Offer Your attorney not only has a legal obligation to tell you about the settlement offer, but he also has an ethical obligation in revealing to you that a settlement offer has been made. The bottom line is when the defense makes an offer of settlement to your attorney, your attorney must convey to you this offer by telling it over the phone or by meeting you personally. Your lawyer must discuss the settlement offer with you, because you are the one who has to make the actual decision about whether or not to accept the settlement offer. You have to understand the risks and benefits of accepting or rejecting the settlement offer. Your Attorney is Obliged to Give You His Recommendations Your attorney not only has the obligation of informing you about the settlement offer but also to provide you with his legal opinion, using his experience and knowledge, about whether or not this is the final offer, or whether or not he can get you additional money. Based upon this information and based upon your own knowledge and experience, you have to make a decision whether or not you can accept or reject that settlement offer. Your Attorney cannot Force You to Take the Offer However, you need to keep in mind that even if your attorney tells you not to accept the offer, you can still go ahead and accept that settlement offer. If you accept it, your attorney then has the obligation to notify the defense that the offer has been accepted and case has been settled. What happens on the other hand if your attorney tells you to accept the settlement offer, since he feels the defense is not going to offer anything more. Suppose you reject his advice and you say that you are not going to take the settlement offer as you case is worth much more, and you prefer to go to trial. Now does your attorney have the obligation of transmitting this information to the defense and also go forward and take your case all the way to trial. The answer to this question is also a yes. Your attorney is obliged to convey your decision to the defense, even when you are rejecting the offer, and he is also obliged to continue, and fight your case at trial. This is usually what goes on when a settlement offer is made in an accident case or medical malpractice case. Your attorney has the obligation to not only inform you about it but also give his recommendations about whether or not you should accept the offer or reject it. However, your lawyer cannot force you to agree with his recommendations, and ultimately you only have the power to make this decision. Your lawyer will have to go by whatever decision you make, and even if it means fighting at trial against his recommendations. Robert Wolff Robert H. Wolff is a member and partner of the prestigious New York City Personal Injury Law Firm of Rosenberg Minc, Falkoff, & Wolff, LLP. Mr. Wolff graduated from SUNY Albany, cum laude, in 1978 with a B.A. in Psychology and American History. Thereafter, he attended St. John’s University School of Law, where he was a member of the Moot Court Team and the Criminal Law Society, graduating in 1981 with a Juris Doctor’s degree.

This is a true story. A woman was walking down the intersection of 23 rd Avenue and 1 st Avenue when she was hit by a truck. A lawsuit was brought against the truck driver, the company that owned the truck - a construction company at that - and the lawsuit went to trial. At the trial, the plaintiff's lawyers wanted to question that truck driver about how he could miss the huge signs screaming road safety erected on the busy crosswalk where the accident happen. As luck would have it, the truck driver had bailed on the court and ran for his life (or freedom or responsibility). Despite repeated calls and an investigating team trying to track him down through his last known address, the driver could not be found. Asking the court to 'strike' answers Despite the long arm of the law, such incidents do happen once in a while. It is called a 'No Show' on part of the defendant. So what does the plaintiff do in such a situation? The short answer is that in most of these cases where one party does not show up in court on the appointed time, the case is decided in favor of the other. But is does not happen in a simple way. There is a legal procedure behind this which begins with the lawyer of the opposing party asking the court to 'strike' the answer of the 'No Show' party. Before a trial begins in court, the lawyers from both the opposition and the defendant's party allege and accuse the other party of certain actions which they consider improper. Each party then has to create a list of answers to these allegations made against them by their opposition, and this is admitted into court as that particular party's 'Answer'. In certain cases, such as when a particular party decides to not turn up in court for trial, the opposition party's lawyer can ask the judge for special permission to strike the answers of the defaulting party. If the judge rules that the defaulter's answers can be stricken, it means that all the allegations and claims made against that party were in fact correct and the opposition party wins the case without any further ado. Proving damages If the lawsuit pertains to specific damages; as in the above mentioned example where the New York woman was suing for damages against the truck driver and the company owning the truck, then the plaintiff has to prove in court that the defendant actually owes them money. In the case of the New York woman, once the driver of the truck decided to run away instead of facing trial, the case had already been decided in her favor on the issue of liability. The trial then moved to a trial on damages where the lawyers argued over how much money the truck company owed the accident victim. The driver's No Show made it easier for the woman's lawyers to win her case, but she still had to fight for the compensation that was owed to her. It is good to see some common sense in America these days. Robert Wolff Robert H. Wolff is a member and partner of the prestigious New York City Personal Injury Law Firm of Rosenberg Minc, Falkoff, & Wolff, LLP. Mr. Wolff graduated from SUNY Albany, cum laude, in 1978 with a B.A. in Psychology and American History. Thereafter, he attended St. John’s University School of Law, where he was a member of the Moot Court Team and the Criminal Law Society, graduating in 1981 with a Juris Doctor’s degree.

After the defense has presented all of its witnesses in a trial, it is up to the prosecution to decide whether or not they would like to call in rebuttal witnesses. The use of rebuttal witnesses rests on the discretion of the trial judge. And though they can be useful in punching holes in the defendant's theory of the case, a rebuttal witness is not a chance for the prosecution to present its entire case again. The use of rebuttal witnesses is mainly done in order to contradict or refute evidence that the defense has offered to the court during its presentation. Why go for a Rebuttal? During the course of the trial, there will be times when the prosecution is stopped from presenting evidence or discussing key issues. The prosecution's experts too may be prevented from talking about these aspects of the trial. Now, during the defense's presentation they too are required to put experts on the stand who would provide evidence to support the defense's theory of the case. Let's say that the defense's experts end up talking about the same issues and trial aspects that the prosecution was disallowed to discuss earlier on. The prosecution can then ask the trial judge for permission to bring in rebuttal witnesses to contradict the arguments presented by the defense. And since it is the defense lawyers who themselves have brokered conversation on the taboo topics, the judge in all probability will allow the prosecution to bring in their experts for a rebuttal. A Prosecution’s Response The integral aspect to note here is that the use of rebuttal witnesses depends entirely on the foundation laid by the defense. Also, unless the defense has presented any evidence which the prosecution's rebuttal witnesses can contradict and prove to be untrue, there is no point in asking for a rebuttal session. For instance, if the defense presents evidence about the defendant's alibi, the prosecution may call a rebuttal witness to contradict or refute this evidence. Like the other aspects of the trail, the rebuttal session too is dependent on the defense's theory of the case. A trial judge will grant the prosecution permission to call in rebuttal witnesses only after deciding that the defense's presentation leaves room for contradictions. Keep it Short and Aim for the Kill A rebuttal session is generally very quick, so it is important to focus only on the most important aspects of the trial. Defense lawyers are generally very eager to ensure that no new topics are introduced during the rebuttal session. Once the prosecution has presented their contrary evidence in the rebuttal session, the defense is allowed to cross examine the witness and they can even ask for a surrebuttal to disprove the rebuttal witness' evidence. But in practice, this very rarely happens. A rebuttal witness is a card that experienced attorneys play only to win and not every case needs a rebuttal for victory. So, do not worry if your attorney does not plan for a rebuttal, but in case he does, make sure that the rebuttal session discredits the defense's theory completely and ensures your victory. Robert Wolff Robert H. Wolff is a member and partner of the prestigious New York City Personal Injury Law Firm of Rosenberg Minc, Falkoff, & Wolff, LLP. Mr. Wolff graduated from SUNY Albany, cum laude, in 1978 with a B.A. in Psychology and American History. Thereafter, he attended St. John’s University School of Law, where he was a member of the Moot Court Team and the Criminal Law Society, graduating in 1981 with a Juris Doctor’s degree.