You were on the way to a motel.

She was sitting in the front seat.

Your wife didn't know. Your wife didn't suspect anything.

She was your girlfriend. Maybe she was your mistress. Yet you were married.

En route your little rendezvous, a careless driver crossed the double yellow line and hit you head-on. You suffered horrible injuries. You needed emergency surgery. You needed steel rods, pins and titanium plates put inside of you to put you back together.

You know that the driver of the other car was negligent and careless.

You know that if it were not for the other drivers' carelessness, this accident never would've happened.

You are determined to bring a lawsuit seeking compensation for the harms and injuries you suffered because of the other drivers' neglect.

Even after the accident, your wife didn't know.

She didn't know you were having a secret relationship.

She didn't know there was a woman in the passenger seat at the time of your accident. The police never told her. You never told her. She never suspected.

What you didn't plan on was that during the course of your lawsuit the defense asks you if there were any witnesses to the accident.

You know that your girlfriend saw everything. Thankfully, she was not hurt.

But you have a dilemma. A moral dilemma. Also a legal dilemma.

You know anything disclose her name during the course of your lawsuit, your wife is going to learn that she was in the car.

You know that your wife is going to ask why she was in the car.

You also know that your wife is going to figure out what was happening. You also know, following this line of logic, that this will not end well for your relationship or your marriage.

On the other hand, what if you refuse to turn over the name of the woman was in the car with you? Can you do that?

Can you refuse the defense attorney's request to learn if there were any witnesses to the accident?

In all likelihood, the police report will reflect who was in the car and whether there were any passengers. The police report will also reflect who in the car was injured and where they were sitting.

If you refuse to provide the name of the witness who clearly was in the car with you, you're going to run into some significant legal problems that will directly impact your case.

First, the defense knows there was an eyewitness, based on the police report. Since she was in YOUR car, they ask your attorney for the name and address of this witness.

Your attorney asks you for her name.

You tell your attorney, in confidence, what was going on, but make him promise you that he won't disclose her name.

Bad move.

The defense asks again.

Your attorney hems and haws and delays answering.

The defense asks once more.

You're making excuses. They're getting the idea that you might be trying to hide something.

That makes them energized to learn exactly who this witness is.

Is there something this witness knows that will help the defense? Is that why you're not turning over the name and address?

Your attorney tells you that when you give pretrial testimony at your question and answer session known as a deposition, the defense will ask you, under oath, if there were witnesses in the car.

If you refuse to answer the question, you will run into a very significant legal problem with the court.

If you answer the question falsely, you run the risk of perjuring yourself.

That means the defense attorney will catch you in a lie if you claim there was no eyewitness in your car. Remember, your credibility is EVERYTHING in a civil trial. If the defense lawyer catches you in a little white lie, he will make a huge deal about it at trial and during closing arguments.

In fact, when the judge gives legal instructions to the jury at the end of the trial, one of the instructions, called falsus in uno, talks about what the jury can do if they find that a witness has lied about one thing. 

It means that the jury can disregard EVERYTHING the witness has testified about if they find he has lied about a simple little thing. 

That would be really bad for your case. Really bad.

If you refuse to release your girlfriend's name, the defense can ask the judge to prevent you from giving certain testimony. They can also ask the judge to prevent you from bringing in the eyewitness to support your claim that something was done wrong.

Also, another legal instruction that the judge might give the jury is to tell them they can infer that the reason you have chosen not to reveal the name of your eyewitness is because it would damage your case. Whether that's true or not doesn't really matter.

What matters is that they know there was an eyewitness.

They know you refuse to tell them who it is.

What matters is that you have refused to produce this witness, or the judge has prevented you from bringing the witness into court to support your version of what happened. Then, the jury can infer that the only reason you have failed to identify who this witness is, is because what she saw could harm your case.

That's what I meant earlier when I said that failing to reveal who this eyewitness is could destroy your case.

You're at home debating whether to sue...

Now that you are recuperating after your accident and deciding whether to bring a lawsuit, you need to come to grips with your choices and your options. If you fail to tell the defense who the eyewitness is, it will have significant repercussions for your lawsuit that you may not recover from.

No matter what option you choose, there is a very good likelihood that your wife will find out who was in the car with you. That will have significant and possibly irreparable harm to your relationship with your wife.

None of these options are ideal for you...but, the key question you need to ask yourself is...

If you don't bring a lawsuit within the time you have to sue, you will never be able to recover compensation for all of the harms, losses and injuries you suffered all because the other driver was careless. Is that how you want to live the rest of your life? With signficant disability that prevents you from doing all of your life's daily activities as before your accident?

The choice, as always, is up to you.

To learn even more about this exact real-life scenario, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer