Despite ranking 41st this year, Alabama’s liability climate is neutral for growth and job creation. Alabama has a rule-of-law Supreme Court majority and the legislature has enacted significant legislative liability reforms. The state has fallen backward in overall monetary tort losses, dropping to sixth worst among the states. An anti-reform majority controls the state legislature.

The Supreme Court rule-of-law majority has been weakened somewhat by the election of two activist justices, including Chief Justice Sue Bell Cobb. Activist Deborah Bell Paseur and rule-of -law appellate court Judge Gregory Shaw are running for an open seat on the Supreme Court. The outcome of the race does not threaten the rule-of-law majority; however, a win by Paseur would continue to weaken that majority. The plaintiffs’ bar will seek to undo the transformation
of the state from “tort hell” in the early 1990s to a rule-of-law state. Retiring Justice Harold See, former Chief Justice Perry Hooper, and former Attorney General Bill Pryor led this rule-of-law transformation.

Alabama remains a state to watch.

We disagree with this assessment - if anything our state has swung too far in favor of businesses but it is interesting to see what the tort reformers think about us.

Before this happens, we will have had a Jury Instruction Conference with the Judge to give the Judge what we believe the law should be. The defendant will do the same. Sometimes there is a lot of disagreement; at other times there is not much disagreement, but in any event, the Judge will make his or her decision as to what the law is in this case. If there are instructions that we think are wrong that are to be given or that we feel should be given that the Judge refuses to, then we will object to those to preserve that issue for possible appeal.

After we make closing argument the Judge will read the Jury instructions. Some of these are difficult to understand while others (and this is the trend particularly in Jefferson County with the presiding Judge Scott Vowell) will make these instructions in as plain of English as possible. We applaud this trend as we want the Jury to understand what the law is.

After the end of the instructions, we will again object to any instructions which are improper and will object to the refusal to give proper instructions that we have requested.

The Jury will then be sent to the Jury Room to deliberate and this signals the most difficult part of the trial oftentimes for the lawyers and the parties, and that is the waiting part. It could be waiting 2 hours or 2 days for the Jury to make its decision. There is always the thought on both the part of clients and the lawyers about things that could have been done differently or may be that could have been said differently, but ultimately, there has to be a trust that what was done was the best at the time and it is now in the hands of the Jury.

In our next blog post, we will discuss what happens after the Jury has a returned a verdict and what your options are based upon how the verdict came out.

There are a number of different schools of thought as to the best way to make closing arguments. Truthfully, there are so many different ways to do it and it completely depends upon the circumstances of the case and the style of that particular lawyer. How did the case go? How much freedom will this particular judge allow? What has been the attitude of the defendant and the defense counsel? What sense do we have of the jury either being with us or skeptical of us.

Since we bear the burden of proof we make the first closing argument and then the defense makes its closing argument, and then we have the final closing argument to make.

It is always a challenge to know what to say and what to leave out. There is a temptation to throw everything at the jury, but in our experience it is better to carefully select the most important and the most persuasive items and trust that the jury will recall the days or weeks of testimony on all of the other details. We do this so that we do not bore the jury or insult the jury and also, we want to highlight certain items. If you highlighted everything in a book, then nothing would stand out. Highlighting by definition means that there are some items which will not be addressed.

After closing argument, the judge will instruct the jury on the law and then the jury will deliberate and return its verdict.

You should not see any questions which are open-ended questions such as “Why were you driving at that speed?” or “Why was your truck overloaded?” Instead, the questions will be more along the lines of – “Your truck was overloaded” or “You were going over the speed limit when you crashed your truck into my client’s car”. The defendant truck driver will either have to admit that this is true or deny it.

A question will not be asked in cross-examination unless we have the ability to show that a denial of the question is a false answer.

When you are being cross examined, it is very tempting to want to fight with the lawyer and argue with the lawyer, but this should be avoided. Our series on ways to answer questions and depositions addressed this, particularly the fourth critical aspect of answering questions which discusses that you should only answer the question and nothing more.

Cross-examination is a very important part of the trial as this is where the lawyers are allowed to test the truthfulness of witnesses on the other side.

Our next blog post will address Closing Argument.

Direct examination is distinguished from cross-examination in that there are no leading questions allowed. A leading question is one which suggests the answer to the witness. Direct examination questions typically are who, what, when, why, and how questions. It is important for us as lawyers to not try to become the star of the show but instead to let the jury see and evaluate and experience that our client is testifying to. If our client is talking about the pain that resulted from the truck crashing into their car, then we want the jury to be focused on that and to not pay attention to us. If a client is talking about the difficulties that the injury has left him with, we want the jury putting themselves in the shoes of our client and experiencing that. The best way for this to happen is for the jury to hear it from the client, in her own words, with her own emotions.

There is a great deal of preparation which must be undertaken in order to prepare you for a direct examination certainly expect our clients to give us as much time as we need with them, so that they can testify truthfully as to what happened and not be nervous, unclear or focused on the process of testifying instead of focused on the substance.

We want our witnesses and our clients to focus on the substance of what happened and be able to communicate that clearly to the jury so that the jury can use that in making its decision as to who should win the case and how much in damages should be awarded to our client.

In our next blog post, will look at Cross-Examination.

This is the time to capture the interest of the jury and to lay out the facts that will give the jurors a logical and reasonable basis to come to the right decision on the case.

It is the time to engage that jury on an emotional level so that they can put themselves in the shoes of our client and understand the pain and the loss that our client has suffered due to the negligence of the defendant.

Finally, it is the time to begin convincing the jury that your side is the right side for them to be on.

The plaintiff makes the initial opening statement, and then the defendant has an opportunity to make an opening statement in response. If your only experience in seeing opening statements is on TV, (and this is true for almost all parts of a trial) then the actual opening may be different than what you have expected. Whether the opening is long or short, whether we use power point or very simple visual aids, understand that what we are trying to accomplish is to educate and persuade the Jury to ultimately render a fair verdict in your favor.

Our next topic will be Direct Examination of witnesses.

In this part of the trial, your lawyer will ask questions seeking to understand different attitudes and beliefs and experiences of each particular juror. For example, if the lawsuit involves a semi-truck which ran the plaintiff off the road and paralyzed the plaintiff, then it’s important to understand each potential juror’s experience with driving next to large trucks and also dealing with paralysis. Perhaps one juror has a friend who was paralyzed and he has a certain mindset about that and somebody else has an entirely different mindset. There is no right or wrong answer that a juror can give - what we want is a truthful answer, so that we can seek to understand.

Every person has biases and prejudices. Any one who claims to have no bias and no prejudice is simply not telling the truth or is a truly unique human being. What we try to accomplish in the jury selection process is to understand those biases and understand those prejudices so that we can ask a question that may get the potential juror thinking about their own bias and prejudice so that they can set that aside and truly be fair and render a fair verdict.

This part of the trial is critically important and is the first opportunity we have to directly speak to the jurors, and it is our only opportunity to interact with the jurors.

We will continue this series by going through the various parts of a personal injury trial in Alabama, so as to give you a good overview of what will happen if your case proceeds to trial.

We were pleased to see a blog post from Ken Shigley about a proposal to test at risk truckers for sleep apnea. Hopefully this will help detect problems and allow truckers and their employers to safeguard not only the truckers but the innocent drivers of cars who share the roads with truckers.

If you have any questions about a truck wreck or automobile accident, please feel free to contact us.