There's this photograph.
It has a lot of useful information in it.
It describes the accident scene.

It was taken moments after the accident.
By a bystander.
It shows the position of the cars immediately after the accident.

It shows the horrible injuries caused by this careless driver.
It's gory.
It's accurate.

It's clear as day.
This bystander deserves an award for being in the right place at the right time.
This photograph has captured the immediate aftereffects of this traumatic accident.

The jury needs to see this.
Words alone do not describe this accident scene.
There's no video of the accident.

There's no video of EMS on scene.
There's no video of the police on scene.
But there is this single photograph.

You sue the driver of the car who hit you.
Seeking money as a form of compensation.
For all the harms, losses and damages you suffered.

The other driver crossed over the double yellow line.
He hit you head on.
This accident was preventable.

This accident never should have happened.
It was during a sunny day.
The moron who hit you wasn't paying attention.

He was looking down at his cell phone.
He was in the middle of texting someone.
Then he dropped his phone on the floor.

As he reached down to look for it, he pulled the wheel.
His eyes were focused on the floor of his car.
Not on the road.

In a fraction of a second his car crossed the double yellow line.
He was traveling at 45 mph.
Your car was also traveling at 45 mph.

In opposite directions.

The impact was horrific.
The noise alone was shattering.
The airbag deployed immediately.

It exploded right in your face.
Your head was jerked back into the headrest.
Your face was hit with shrapnel from the exploding airbag.

That photo shows the airbag, deflated, sitting on you.
That photo shows blood.
That photo shows where the cars ended up after the accident.

It's an important photograph.
One glance at that photo and you'll know how this accident happened.
One look at this picture and you'll see where the accident happened.

Our investigator found the bystander who left her name and number with the police officer.
She revealed she took this photo.
She was nearby.

Her apartment was on the third floor and had a perfect view of this location.
She voluntarily gave our investigator a copy of this photograph.
During the lawsuit, I gave a copy of this photo to the defense lawyer.

He was entitled to know and see any photographs I had obtained about this accident.
So I sent it to him.
I told him who took the photo.

I gave him the name and address of the woman who took the photo.
I explained how our investigator tracked this woman down.
I explained how we learned her name; from the police report.

If this case went to trial, I told him I intended to use this photograph at trial.
He didn't have any objection.
I knew he wouldn't.

I had exchanged all the information I had about the photograph.
During your lawsuit the defense lawyer had a chance to question you during a question and answer session known as a deposition. 
He spent a few hours asking you lots of questions about what happened and what injuries you suffered.

He then pulled out this photograph.
He asked you questions about what was contained in this photograph.
You answered as best you could.

The opposing attorney asked how your lawyer came into possession of this photograph.
You didn't know, but your attorney did.
Everything in the photograph was accurate.

It showed how things looked seconds after the accident happened.

The defense refused to accept responsibility for your accident.
They refused to offer a dime.
That meant your case was going to trial.

You were going to trial to determine liability.
To determine if the driver you sued was careless.
To determine if he violated the rules of the road.

In New York, in these car accident cases, instead of trying liability and damages together, we try liability first.
That means the jury will only determine if the other driver was careless and caused harm.
If the answer is no, then there's no need for a jury to sit there to evaluate your injuries.

Your case is over if the jury says 'No'.
In that case, you'd get nothing.
If the jury says 'Yes', then your trial will move onto the damages phase.

That part of the trial will be for them to determine how much money you are to receive for your injuries.

Your case finally gets to trial.
Six members of the community are listening to the evidence and testimony.
Their goal is to determine whether you are slightly more likely right than wrong.

They don't have to sit there for days or weeks making absolutely sure that what you're saying is right.
They only have to decide that you are slightly more right than wrong that what you are saying is true.
You now get up to testify.

Your lawyer asks you all about how this incident happened.
He has you describe in vivid detail the events leading up to that fateful moment.
He walks you through, moment by moment, what happened until that fateful impact.

Then, after having you describe in many word pictures what occurred, he pulls out the photograph.
The one we talked about earlier.
The one that his investigator tracked down.

This is the same photo we provided to the defense attorney.
The same photo you were shown during your deposition.
The same photo that the defense lawyer had in his file for a year now.

The defense knew I'd be offering this photograph into evidence.
He knew I'd use this photo if your case went to trial.
He didn't have any objection.

"Mr. Jones, I'm showing you a photograph and want you to look at it." I say.
"Does that photograph show where your accident took place?"
"Does that photo show the weather conditions at the time of your accident?"
"Do you know who took that photograph?"
"I learned later it was a bystander named Jane," you say.
"Does that photograph accurately depict the position of your car immediately after the impact?"
"Does that picture accurately show the airbag deployed?"
"Does this photo show the condition of your face after the accident?"

"Your honor, I offer this photograph into evidence," I say to the judge.
The judge looks over to the defense lawyer and asks "Counselor, do you have any objection to this photograph coming into evidence?"
"No Judge, I do not," the attorney replies.

I next expect the Judge to say "Fine. Mark the photograph in evidence as Plaintiff's Exhibit #1. You may show it to the jury now."

Instead, I hear this...
"I'm denying your request counselor. This photograph is NOT being admitted into evidence," the Judge says.
"What? What did you say Judge? You're NOT admitting this photo into evidence?" I ask with a hint of incredulity.

"Judge, there's no objection from my opponent! I laid a perfect foundation for this photograph. My client has authenticated the photo. The jury needs to see this photograph. It's the only one showing the accident scene," I argue.

The judge isn't having any of it.
"Denied. That photograph is NOT coming into evidence," the Judge says with finality.
"But why not?" I demand to know.

The judge gives some cockamamie answer that makes no sense.
"Judge, I ask you to reconsider," I plead.

"I ask you to consider an offer of proof outside the presence of the jury," I beg.
"Judge, the defense has no objection to this photograph going into evidence. So what's the problem? Why would you prevent me from getting this photo into evidence?"
"I said denied counselor, move on," the Judge says.

Can he do this?
Can the judge keep this photograph from the jury even though my opponent and I agree it should come into evidence?
The answer is yes he could.

It doesn't mean it's the right decision, but since the Judge controls everything that happens in the courtroom, he controls what comes into evidence.

If the judge makes the wrong decision and I ultimately lose the case, I can appeal on that precise issue.
It's highly unusual for a judge to keep out a photograph especially if both attorneys agree it should come in.
Especially when this photograph accurately shows the scene immediately afterward.

There are instances where the photos are too gory and might inflame the jury.
In that instance the judge might decide that putting those photos in front of the jury will get them angry and riled up.
Maybe it will make them too queasy because of how gory they are.

But that's not the case in this scenario I've been talking about.
Instead, both sides agree this photo should come into evidence.
The judge refuses.

He's likely wrong.
In all likelihood, I'll have to appeal.
I believe he'll be reversed on appeal.

To learn more about what happens if both sides agree to put this photograph into evidence, I invite you to watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer