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Don’t Believe Perry Mason – What Really Happens When A Surprise Witness Shows Up at A Personal Injury Trial?

Published January 25, 2018 by Bruce Millar
Don’t Believe Perry Mason – What Really Happens When A Surprise Witness Shows Up at A Personal Injury Trial?

If you happen to be a fan of old television programs, you may have learned everything you know about law from re-runs of Perry Mason. That 1960’s television icon never lost a case. Perry was forever finding a witness to upset Prosecutor Hamilton Berger’s applecart at the last possible moment.

At the risk of throwing your legal education into question, we must tell you that in courtrooms, there are rules. Pre-trial orders are established prior to trial among the parties concerning the ways in which the trial might proceed. One example is the process of discovery. Long before lawyers get to the courtroom both sides already know precisely which witnesses will testify, but also what those witnesses will say. Perry’s last minute surprise witness would probably not make it to the witness stand.

Sometimes pre-trial orders can make it difficult for one side or the other.

A 1985 Atlanta Injury Case We Can Learn From

In the case of  Minnick v. Lee, 174 Ga. App. 182 (1985) just such a problem occurred when an expert witness turned up just a day before the trial was to begin. This particular case had been 4 years in the making after a young man lost his life when the sports car in which he and a friend were travelling hit the trailer of a parked, disabled, semi-truck. Both young men died instantly. The parents of one young man brought suit against both drivers and the owner of the trucks for wrongful death.

A Crash Into Parked Semis Camping Out for the Night

At the time of the accident two trucks were parked at the side of the road. In addition to the disabled truck, there was a second one owned by the same company parked behind it. Both drivers were asleep in their bunks. The trucks were surrounded by flashing red warnings.

Prior to the trial, both teams of lawyers had agreed to a pre-trial order that prohibited witnesses whose names and addresses had not previously supplied to the other side from taking the witness stand. In the interest of fairness, the judge considered the testimony of the witness outside the presence of the jury. The judge determined that the testimony of the witness was not ‘rebuttal’ (which could have been allowed) by nature and would not be heard. He also found the testimony to be cumulative – meaning just more of what other witnesses had already offered – so, in consequence, did not amend the pre-trial order and the witness was not heard.

At the end of the trial, the court ordered a direct verdict in favor one of the two truck drivers, and allowed the jury to rule on the other defendants. That verdict was also in favor of the other defendants. The parents appealed.

The Difference a Witness Can Make

The appellate court found that the testimony of the ‘surprise witness’ would have been valuable in that it offered a completely different conclusion as to the precise location of the trucks in relation to the lanes of traffic and may have changed the verdicts had the judge amended the pre-trial order as was his right.

In the end, the appellate court concluded that the directed verdict in favor of one driver was appropriate.  The court found that the trial judge did, indeed, make a mistake by not amending the trial order. The matter was sent back to be tried again.

We all agree to the need for rules. Imagine how much fun football would be if, before each game, the rules of the game were tweaked and changed according to the wishes of the referees on the field. Many a final score would be different if the matter of who could play and how were a matter of the referee’s whim.

Courtroom rules must always be seen first in light of the way they uphold the law itself. Fair and thoughtful application of the statutes and the spirit of the law is part and parcel of what makes our system of justice the best in the world. The law must always be even-handed.

Hire Our Injury Law Team

Faith in the way justice is meted out is a cornerstone of what makes our nation work. At The Millar Law Firm are devoted to those rules that make it possible for victims to find justice in the end. It is in that spirit that we invite you to speak to us about the facts in your case. If you’ve been injured by the negligence of someone else, we want to help you make it as close to right as possible. Call us today for a free review of your case. Perhaps we can help.

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