Tuesday, August 31, 2010

Did you know you can read a "code " as part of your direct case?

I remember being on trial about ten (10) years ago on a wrongful death Labor Law case in front of Justice Frederick Sampson in Long Island City. I was having fits trying to get "my arms aound " The Dead Man's Statute . For any of you who have tried a case in front of Justice Sampson you know he is a real stickler on the rules of evidence and understands and enforces compliance through his stern evidentiary rulings. I have seen many an attorney frustrated beyond belief not able to lay the proper evidentiary foundation to even admit photos into evidence.
So anyway, this trial involved an individual who who was using an electric snake at a worksite and due to the frayed condition of the tool, coupled with the owner's failure to maintain a "ground fault circuit interrupter" my client was electrocuted and died. My engineer purchased an exemplar "ground fault circuit interrupter " to display to the jury. Real issues also existed as to whether there were was any conscious pain and suffering at all.
With all these issues facing me, I turned to " Broder's Trial Tactics and Techniques". If you don't have it, get it! Anyway , while trying to really understand the 'Dead Man's Statute ", I came across one of my greatest finds as a trial lawyer; the concept and the legal support which allows you to read a "code section" into evidence as part of your direct case at trial. Yes, Industrial Code 23, The Administrative Code etc. This is done not during jury instructions , but on your direct case.
In my case, frayed power tools constituted a specific Industrial Code 23 violation. So I followed the procedure outlined by Broder. I had a so-ordered subpoena issued for Industrial Code 23 and served it on the law librarian at Sutphin Blvd. Next day ,when the Court asked me to call my next witness, I proudly stood and announced my intention to read the code section to the jury. Over objection by all 3 defense counsel, Jusice Sampson allowed the reading. Standing two feet from the jury I read the appropriate section to them regarding frayed power tools. Great two minutes!
After that trial[which settled with the jury out], I read the code on many other occasions and "tipped off " my good friends on how it worked.
Moral of the story; You can always learn something new.

No comments:

Post a Comment