Let's say there's a car accident at an intersection here in New York.

Let's say that Sally was with her friend and was taking a video of her friend being silly. Miraculously, the entire accident (and what color the lights were at the time) was captured on this quick and dirty video.

After the accident, we learn that this bystander has this video.

The video clearly shows we had the green light.

This video clearly shows the defense went through a red light.

This video shows the driver of the other car was careless and caused you harm.

Let's say for our example that we don't disclose this video to the defense. Instead, we want to keep it secret and then spring it at them at trial. We are hoping that by forcing the defense to go to trial that will increase any offer the defense will make to try and settle your case.

Can we get away with this?

Well...here's what will happen at trial if we have not turned over this video to the defense during the discovery phase of your case and did not notify the defense that there was a witness to this car accident...

"Your honor, I call Sally to the witness stand," I say.

"Judge, who is Sally? She's not on any witness list provided by plaintiff's counsel!" the defense attorney argues.

"Counsellor, who exactly is Sally and what will she testify about?" asks the judge.

"She's an eyewitness to the accident. She will testify that the other driver went through a red light. In addition, she will testify that she has a video of the actual accident and impact and will show that video to the jury," I reply.

The defense attorney is jumping up and down. His blood vessels are about to pop. He's screaming "Judge! That's inappropriate! This is an ambush! We had no knowledge of any eyewitness. We had no notice of any video! We asked plaintiff's counsel if there were any eyewitnesses or any videos and their reply was 'no and no'. This is outrageous. We never had an opportunity to question this witness or take her pre-trial testimony!"

"We never had an opportunity to view the video she took," the defense lawyer screeches.

The judge looks over to me for an explanation...

"Well counsellor, what do you have to say?"

It doesn't matter what I say at that point. Want to know why? Because I have no legal grounds to stand on. The only possible explanation I could raise would be that we just learned of this witness and her video and didn't have enough time to notify the defense. 

However, in this scenario, that would not be correct. In this example, I explained how we knew this at the time of the accident. It is now years later and we're springing this on the defense.

Want to know what the judge will do in this scenario?

"Counsellor, this witness cannot testify, nor will this video be shown to anyone. You failed to give the defense any notice about an eyewitness despite their asking you for any witnesses. You also failed to notify the defense that you had a video showing the accident. As a result, you are precluded (prevented) from putting on this witness, you are precluded from showing the video and you are most certainly prohibited from raising any video throughout this trial," the judge rules.

This type of trial by ambush was done away with many, many years ago. Waiting to spring a trap on your adversary at trial will cause you more harm than good today. 

Today's civil litigation in car accident cases, medical malpractice cases and wrongful death cases are totally different. There is an air of discovery. ALL information surrounding the case MUST be disclosed during the discovery phase. Whether it gets into evidence at trial is a different story, but a really smart attorney would have immediately notified the defense that there were eyewitnesses to the accident.

He would then provide the defense with witness information including their name and address. This way, the defense could contact those witnesses and determine for themselves what they observed and witnessed. Doing so is actually a great strategy when you know the witnesses have observations that are favorable to your case.

The same is true for a video depicting the actual accident. 

We would get a copy of the video. Then, we'd send the defense a copy of the video describing when it was taken, how it was taken and by whom. If favorable to us, again, this puts us in a stronger negotiating position when we decide to begin negotiating with the defense.

There is no way an attorney can keep this information secret and hope to spring it on an unsuspecting defense at trial without incurring the wrath of defense counsel and especially the judge.

The better practice is that immediately after the lawsuit is started and the defense asks for medical records and accident reports and photographs, we let them know right away who the eyewitnesses were. If we have already obtained statements from these eyewitnesses we will always send a copy of those witness statements to the defense. Same is true with the video.

My goal is to give them everything, as soon as possible. I want the defense to know we have eyewitness support, witness statements and video to support our claim that their client, the careless driver, was in fact negligent and careless. I want the defense to realize, at the beginning of the case that their client is legally responsible for my client's significant injuries.

Doing that puts us in a favorable light and puts the defense on the defensive. It also gives us greater negotiating leverage.

Waiting does nothing but creates danger for the trial attorney.

To learn even more about what witnesses are needed to prove damages in a car accident case, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer