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Handling Embarrassing and Damaging Facts in Litigation

People who have suffered personal injury or other harms sometimes are reluctant to pursue legal action because they are reluctant to reveal embarrassing or incriminating details about themselves in a court setting. The facts of the incident leading to an injury may include damaging information about the injured plaintiff, such as drug use, extramarital affairs, or behavior that is prohibited by an employer. A significant part of an attorney’s job is to understand how these concerns may play a role in a case’s strategy and help the client evaluate when and where such concerns should be allowed to take precedence over other tactical concerns. One thing every potential plaintiff should bear in mind is that very few civil disputes ever go to trial. Most often, private disputes such as personal injury cases get resolved through settlement negotiations. Although such cases still involve filing court documents that can contain damaging facts about the plaintiff, they may avoid the biggest fear many plaintiffs have, of having to air their dirty laundry in a public setting, before a jury. Broadly speaking, whether a “bad fact” can be avoided in litigation will depend on its importance. Some kinds of information simply can’t be “hidden” during a legal proceeding, because they are vital to the core issues in a case. Such facts can form a key part of the defense, or they may be an unavoidable part of the story the plaintiff must tell to not be accused of dishonesty. For example, if the plaintiff was drunk while crossing against a red light, it’s unlikely that the drunkenness won’t come up, even if the defendant was speeding and texting at the time his car hit the plaintiff. The fact that the plaintiff was drinking may not be particularly damaging, or it may present serious issues (for example, if the plaintiff is an emergency medical technician and was on call at the time of the accident). Other information may have some marginal value to a plaintiff’s case, but its potentially damaging effects to the plaintiff’s personal or professional life outweigh the benefits of introducing it. Whether such information can be kept out of the legal process will depend on whether the adverse party knows about it, and whether it is relevant to a legitimate discovery request. In some situations both parties may want to keep bad facts hidden. The case of the extramarital affair offers a simple example. If the cheating couple was meeting for a liaison when one of them accidentally struck the other with a car, the purpose of their getting together might be best left off the table. The adversarial nature of litigation means that the other side of the case will always want to find the most damaging information it can to help build its case. In theory an attorney has an ethical obligation to not blackmail the other side into agreeing to a low settlement offer, but not every lawyer is ethical. It’s important for clients to clearly explain to their attorney all of their concerns about the case before it gets started, so the attorney can set expectations about what matters can be kept private and what disclosures might be unavoidable. For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury, workers’ compensation, and auto accident cases. We help clients sort out the pros and cons of different strategies, taking into account all aspects of each client’s individual needs and concerns. Call us today for a free, confidential attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.

Attacking a Defendant’s Character in Personal Injury Cases

In personal injury lawsuits the defendant’s character can sometimes become an important piece of a plaintiff’s case. The defendant’s character could involve his or her propensity to tell the truth, behave lawfully, act violently, and so on. But character evidence isn’t always relevant to the core issue of a personal liability case: whether or not the defendant is legally responsible for compensating the plaintiff for costs related to the injury. Understanding when a defendant’s character can be used at trial requires consideration of Nevada’s evidence rules. Nevada law limits when and how character evidence can be used in civil trials. Under NRS Chapter 48, a number of things must be true about character evidence before it can be used:
  • It must be relevant. In legal terms relevance means that the character evidence makes a fact of consequence in the case more or less probable than would otherwise be the case. For other kinds of evidence the question of relevance may be straightforward. For example, in a drunk driving case the individual’s blood alcohol content near the time of the accident is clearly relevant. But character isn’t always a direct issue in a case. The defendant’s character may come into play if there are questions about his or her honesty or other traits.
  • It must not be unfairly prejudicial. The character evidence’s informational value should not be substantially outweighed by the likelihood that the trier of fact (a judge or jury) will be swayed against the defendant for reasons that have nothing to do with the facts of the case. For example, if the defendant was convicted of a serious drug offense (say, selling cocaine to minors) 30 years ago but the current case involves a car accident with no connection to drug use or sales, the fact of the old conviction may not just be irrelevant, it may also be unfairly prejudicial.
  • It cannot be offered solely to prove that the defendant acted in a certain way. In a sense, this rule is another way of getting at the rules of relevance and fairness. Proving that someone has a general habit of drinking too much can’t be used to prove that the person was drunk on a specific occasion. Showing that a person has a history of domestic violence does not prove that he or she is still committing violent acts. But if the defendant tries to argue that he doesn’t drink, or that she wouldn’t hurt a fly, these character elements can become important. Note that the defendant may need to open the door for the plaintiff to use this sort of evidence. A smart attorney will avoid making this kind of rudimentary mistake.
Provided that character evidence is relevant, fair, and appropriate, it also must be offered in a reliable way. Witness testimony is probably the most important source of character evidence, but other pieces of evidence can help establish character. Social media can be a rich source of character evidence, because people often use it without considering how it might later be used against them in a court setting. The law firm of Greenman Goldberg Raby Martinez has helped injured clients in the Las Vegas area recover compensation for over 45 years. If you have questions about your personal injury case, call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.

The Role of Personal History in Injury Cases

The backgrounds of the people involved in personal injury litigation can sometimes play a significant role in the case’s outcome. To guard against undue prejudice, courts typically won’t allow evidence or testimony about a party’s background unless it has some relevance to the case. But attorneys can find ways to make seemingly unrelated matters suddenly relevant again. For example, a decade-old conviction for fraud may not be relevant to whether a driver was responsible for a car accident, but it might be important for attacking the driver’s honesty if that is at issue. Here are a few examples of how personal history can play a role in a case.
  • Limiting the scope of potential damages. A longstanding principle in civil litigation is that the defendant “takes the plaintiff as-is.” This so-called “eggshell skull rule” generally means that the defendant is responsible for compensating the plaintiff for the full scope of the injuries for which the defendant is responsible, even if the nature of the injuries are significantly worse as a consequence of an existing infirmity in the plaintiff. At the same time, defendants are not responsible for compensating plaintiffs for injuries that already existed at the time of the accident. If the plaintiff was already dealing with a serious injury, the defendant likely will not be held responsible for the costs associated with that injury.
  • Supporting or undermining arguments. A party’s personal history can raise doubts about the merits of arguments that are not adequately supported by concrete evidence. It can also help to fill in gaps in evidence to strengthen an argument. For example, a driver who left a bar and got into an accident might argue that she “hardly drinks and never drives drunk.” The plaintiff might use the plaintiff’s history of DUI convictions, reputation for alcohol abuse, or confirmed habit of drinking and driving to show that the defendant isn’t telling the truth.
  • Creating or losing sympathy. Events in a person’s past can have effects on a case that are hard to quantify. Courts are often reluctant to allow evidence that serves little purpose other than to turn a jury’s opinion about a person, but as in the example of the fraud conviction, such evidence can be relevant for important reasons and have consequences beyond the narrow purpose for which it was introduced.
For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases. Our team understands how to help clients get the most out of the facts of their case, and how to address potential problems that may be lurking in a client’s past. For a free attorney consultation about your case call us today at 702-388-4476 or send us a request through our site.