Plaintiff Claims Improper Attorney Conduct In Sacramento Car Accident Trial, Part 6 of 9

The following blog entry is written to illustrate a common motion filed during the post-trial stage of civil litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident case and its proceedings.)


Over the objection of counsel for the plaintiff, defendant’s counsel engaged in what can be described as nothing less than misconduct.

In the case of Smith v. Covell. (1980) 100 Cal.App.3d 947 at 959 the court says that questions which calls for patent hearsay evidence cannot be brought in the back door on cross-examination of a party or for any other reason. That court rejected at page 960 claims by counsel that such questions were for the purpose of impeachment holding that such claims do not barr the evidence from being presented based on the hearsay rule. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In this case, over objection of counsel, defendant’s attorney questioned Dr. Lee and Dr. Gold about medical records which were not admissible under Evidence Code section 1271 or 1272. Objections were made at the time counsel for the defendant attempted to question the doctors concerning medical records which they did not prepare and which did not contain any information concerning the claims of the plaintiff. All of this was for the purpose of trying to demonstrate that the plaintiff did not complain of neck injuries over an extended period of time.

Such records include Exhibit 181 for identification which was written on March 17, 2005, by unknown persons. Counsel for the defendant asked questions concerning this document over objections that it lacked foundation, and was nothing more than hearsay to elicit responses that this document does not show any claim for a neck injury.

Without having the author present in the courtroom to be cross-examined there is no way to know what information was elicited or not, and what comments were made or not. Another example is Exhibit 182 for identification which is an endocrinology note from an RN. Again, over objections for lack of foundation and based on hearsay, the court allowed defendant’s counsel to again ask whether or not there was any mention of a neck injury on March 21, 2005, without weighing the proper foundation from the author of the note or even attempting to establish who the author was.

Plaintiff presented In Limine Motion No. 3 to the court prior to trial in an attempt to exclude such hearsay materials from introduction. Attached hereto and marked as Exhibit F and incorporated herein by reference is In Limine Motion No. 3 which sets forth additional authorities which would prohibit counsel for defendant engaging in blatant attorney misconduct by attempting to ask questions of witnesses who were not the authors of the documents and who did not rely on the documents in reaching opinions and conclusions to testify that this plaintiff did not have the complaints of neck pain prior to March of 2005.

The court by allowing such evidence allowed counsel for the defendant to engage in conduct which is prohibited and to attempt to introduce evidence which otherwise should have been precluded for lack of foundation, hearsay, and pursuant to Evidence Code sections 1271 and 1272. Thus, it is respectfully submitted that the court should again grant this motion for new trial based on such irregularities. (See Part 7 of 9.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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