Articles Posted in Trial Practice

The main goal of personal injury lawsuit is to make people whole after an injury caused someone’s negligence. This compensation is usually broken down into three parts: medical expenses, lost earning capacity (lost wages), and pain & suffering. However, many people don’t realize that there’s a lot more to proving a case in front of a jury.

If you suffered harm due to the action, or failure to act, by another person, group of persons, or business, you may have a personal injury lawsuit. In law books, the technical term is commonly known as a “cause of action.” A cause of action is a set of facts under which one person sues another person, business, or organization.

A cause of action can arise in a variety of ways. First, it can occur due to either an act or even a failure to act.  This means that some cases happen because someone didn’t do what they were supposed to do. Others arise because someone did something improperly. A cause of action can also arise on account of a breach of duty, or a violation of the law. This means that there is a law or other regulation that requires someone to act a certain way, and then that person or entity doesn’t meet those requirements. Obviously, the circumstances of the facts of your case will have an impact on your cause of action.

Massachusetts has been called many things throughout history, but at the top of that list should be “consumer friendly.” This is true even about our laws. They try to protect consumers instead of big businesses.

One example is a section of the Massachusetts’ Consumer Protection Act, specifically Section 93a, that affords broad protections to consumers from merchants engaging in “unfair and deceptive” practices. This includes sales and leases, debt collection, many contracts, foreclosure, landlord-tenant law, and even bad faith insurance claims.

If you have been subject to unfair business practices, the easiest course of action would be to simply come to an agreement with the business with which you have a conflict. However, if all disputes were that simple, there would be no need for laws protecting the rights of consumers. If you are unable to resolve a complaint with a merchant, i.e., an individual or business, informally, then you may decide to take legal action. 

September saw a couple of significant victories as Marcotte Law Firm is settling into its new locale.

Sean Kelly secured a not guilty verdict for a client charged with drunk driving after slamming into the rear of a car whose driver had stopped on a New Hampshire country road to turn left.  The investigating officers determined that the client had failed field sobriety tests, and they admitted to consuming alcohol an hour earlier.  The municipality did not use breathalyzers but opted for blood tests administered at a local hospital.  The suspect declined, as they later would explain due to fear of COVID.  Unlike Massachusetts, refusal to take the test can serve as evidence against the accused.  The client testified that the accident occurred because they had gotten lost and was checking GPS.  When they looked up, the vehicle ahead had stopped.  

The collision, however, was substantial.  Attorney Kelly not only questioned the officer’s conclusions on the field sobriety tests (first having mastered all the training and grading methodology taught to the police), but also argued that any deficiencies in her performance were equally explained by the severity of the collision.  The prosecution could not show beyond a reasonable doubt that whatever symptoms might have been attributed to alcohol could as easily have been due to the collision.  Ironically, our client might have been guilty of distracted driving, but was never charged with it.  Happily, they have been extra cautious since. 

The Commonwealth’s top court, the Supreme Judicial Court, gave landlords a bit of a break recently in Goreham v. Martins, 485 Mass. 54, (2020).  The decision involves the “warranty of habitability” and the ways for tenants to recover for injuries sustained on their rented premises, including cases for people who slip and fall on snow and ice.

By way of background, an injured person has a claim “in tort”, that is, that someone’s negligence caused the injury.  There are circumstances, however, when the remedy is contract or semi-contract based.  For example, there is a “warranty of merchantability” attached to products.  They have to be fit for the purpose intended.  A table saw that does not have a guard, for example, can be found not to have met the warranty of merchantability, and resultant injuries can be compensable under a breach of warranty theory.  

Similarly, the warranty of habitability assures that a rented property is fit for human occupation.  If a ceiling falls on your head, you have a claim for breach of the warranty of habitability even though the landlord lacked notice of the hazard thereby making a negligence claim very difficult.

The first part of a jury trial often gets glossed over in the movies and on TV: picking the jury. The legal system wants jurors who will hear the facts and come to a decision without any biases or preconceived notions. Getting those jurors takes some work.

Therefore, jurors go through a process called Voir Dire. This is just another way to say Jury Selection. First, the judge will introduce the parties, the lawyers, witnesses, and anyone else involved in the trial, and it will ask the potential jurors if they know any of these people. Obviously, if a potential juror is related to the Plaintiff or Defendant, he or she cannot be impartial.

After that, there are various obvious conflicts that are dealt with. That varies from jurors who would have issues serving because of childcare to someone who has a conflict because they are in a similar situation.

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