By Martin S. Cedzidlo, Esq.

You are trying an auto case involving a low-speed, two-vehicle crash and the property damage photos appear, on their surface, to involve limited damage to the autos.

You know that defense attorneys try to show these photos to the jury, and argue, sometimes outside the scope of evidence rules, that light damage to the auto means light damage to the plaintiff.
 

How does the plaintiff’s lawyer combat this?
 

The answer is to start with your opening statement. You cannot wait, or waste the opportunity, to discredit the defense before they even get the chance to show the photos or allow the jurors to believe that the photos are important, because science has proven they do not matter.

 In your opening, bring up that the defense will attempt to show the jury photos. Since attorneys  are limited in their opening statements to talking about what evidence the jury is expected to hear from the witness stand, you can say something like, “The defense is likely going to show you photographs of the autos in the collision and try and convince you  that the photos  have relevance to the case.

“But I am just letting you know that while the courts have determined that you are allowed to see the photos, at the end of the case the judge is going to give you a warning that the photos have no value whatsoever concerning the injuries in this case, because science has proven that they don’t.” 

The purpose of this cautionary instruction during the opening is to make the jury think when the photos are being shown to them. You cannot let the jurors see the photos during trial, and then wait to convince them after they have seen them that those photos do not matter.

You want the jurors to ask, “Why is the defense even showing me these photos if the judge is going to warn me about them?” The plaintiff attorney’s goal is to convince  jurors to reject the idea that the photos are important before they ever see them. Plaintiff attorneys  must condition and train the jury what evidence is important, and what is not, before they hear it.
 

When the photos are shown, always ask the judge to give the jury charge, known as the Brenman charge at the same time. This is set out in the New Jersey Supreme Court case Brenman v. Demello. Sometimes the judge will give the instruction before the photos are even shown to the jury, and this helps tremendously, because the  jurors are being warned that they are being given something that is untrustworthy, and this  affects how they view and respond to the photos.
 

In your summation, you must continue the assault on the faulty evidence. In the same way that you might tell the jurors that the defense doctors who testified were unreliable for various reasons, you should  tell the jurors that the photos are unreliable, and the judge is about to explain why that is so. 

Do not wait for the judge to get to that portion of the charge. Instead, in your closing, say something like, “Now the defense has shown you photos of the cars. And the defense has suggested to you that these photos are something you should consider in your deliberations. But did any witness get on the witness stand and tell you that the type of injuries the plaintiff suffered could not be caused in such a crash?

“No. No one did because science tells us that this is blatantly not true. And the judge is about to tell you that based upon a famous court case, called the Brenman case, scientific evidence shows  that a plaintiff can suffer horrible, permanent injuries where there is very little property damage, and that the plaintiff can suffer no injury at all in collisions where they is significant property damage.

“And the court determined in that case that if you are going to be allowed to see these photos, you have to be warned about them, and have the judge explain to you that they mean nothing and are scientifically unreliable. 

“So why is the defense attorney showing you photographs that are completely unreliable? Because the defense does not have any scientifically reliable evidence to rely on. If they did, they would have relied upon that evidence and not photographs that have no scientific validity and are meaningless. It shows you how desperate the defense has become in this case.”

In cases where you are faced with the challenge of a disbelieving jury pool, and low impact damage photos, you must aggressively attack the entire premise of the defense’s case. That attack must begin with the very first opportunity that you are given in openings and continue through to the very end.  Make the jury believe that the judge agrees with the plaintiff. 
 

Martin S. Cedzidlo, Esq. is a partner at Jae Lee Law in Fort Lee, NJ, where he focuses his practice on automobile accident, malpractice, premises liability and Workers’ Compensation cases. He can be reached at MSCedzidlo@gmail.com or at 201-346-3800.