Deposed a defendant last week who refused to admit she did anything wrong. She was driving her commercial vehicle, went too fast, slid on ice and snow, spun out perpendicular to the road, went across the road and crashed head on into my client’s truck.
He had seen her coming and pulled to the side of the road and stopped by then. Pictures show the road completely icy. She flat out refused to admit she did a single thing wrong. The problem is, her lawyer is likely to admit liability in opening statement to defuse the situation at trial.
What to do? Here it is in three steps:
1. Nail her down in deposition with the following.
You didn’t do anything wrong.
You take absolutely no responsibility.
Wouldn’t change a thing if had to do it over.
Didn’t learn any lessons from this.
If you didn’t do anything wrong, you still drive like that today and are gonna drive to the courthouse for trial like that.
Unless there’s a jury verdict in this case you won’t change a thing.
2. Go to trial.
3. At trial, when they try to late admit liability to keep evidence out and take the wind out of your sails remind them of a little Missouri law: An admission of fault by defendant should not prevent plaintiff from putting her evidence relating to liability before the jury.
All my evidence of negligence will come in. And its some old, good law – back to 1934.
Most recently in Ingram v. Rinehart, 108 S.W.3d 783 (Mo. App. W.D. 2003), defendant admitted liability but the trial judge allowed counsel for plaintiff to present evidence of fault including direct and demonstrative evidence that the defendant was drunk at the time of the incident, testimony about what led up to the incident itself and its aftermath, and photographs of the incident scene.
The Court said:
“The party bearing the burden of proof is not bound to a party’s admission. Franklin v. Byers, 706 S.W.2d 230, 231 (Mo. App. 1986); Ruppel v. Clayes, 72 S.W.2d 833 (Mo. App. 1934). Instead, that party may elect to present evidence to prove the issue at a jury trial. Ruppel, 72 S.W.2d at 835. Furthermore, that testimony and evidence was also admissible because it was directly relevant to the disputed issues regarding plaintiff’s special damages and their claim for punitive damages. There was no error admitting the challenged testimony and evidence.”
The rationale underlying this longstanding rule in Missouri is that “[a] colorless admission by the opponent may sometimes have the effect of depriving the party of the legitimate moral force of his evidence . . . ” Wigmore on Evidence, 3d Ed. § 2591.
Back in 1934, the Ruppel v. Clayes, 72S.W.2d 833, 835, 836 (St. L. 1934), court held that even when a defendant makes an unqualified or limited admission of liability, a plaintiff has the right to introduce evidence relevant to the issue of liability. The court said:
arties, as a general rule, are entitled to prove the essential facts, to present to the jury a picture of the events relied upon. To substitute for such picture a naked admission might have the effect of robbing evidence of much of its fair and legitimate weight. No exception lies to the admission of relevant evidence under such circumstances.”
4. Tell the jury the late admission is just to play a game with the jury – to try to manipulate them.
5. Ask the jury for a bunch of money to fully, not partially, compensate your client.
6. Tell this story so defendants and their lawyers stop playing this game.