PERSONAL INJURY ATTORNEY - DENTON LAW FIRM LLC

Posted by: Philip Denton on Jul 7, 2022 (For The St. Louis Bar Journal Blog)

A trial notebook is a multipurpose reference and guide to the preparation and the eventual presentation of a lawyer’s case at trial. A well prepared trial notebook provides an organized outline and synopsis of your case that will assist you in preparing for trial, thinking  through the issues beforehand, and executing your planned presentation of your case. This article will identify the essential elements of a trial notebook and discuss the content relating to those elements with suggestions for preparation.  

The essential elements of a trial notebook are: 

Pre-trial matters; 

Voir Dire; 

Opening statements; 

Schedule and summary of the evidence; 

Responses to the opponent’s evidence; 

Objections, offers of proof, and preservation of points on appeal; 

Closing argument; 

Jury instructions; 

Post-trial motions;                                                                                          

 Audio-Visual trial aids, Power Points, etc. 

PRE-TRIAL MATTERS 

This section will contain: 1. the operative petition and answer(s); 2. Motions in Limine;i 3. Trial briefs;ii and 4. Any issues or matters that need to be presented to the court for consideration or for the court’s information and convenience. 

VOIR DIRE 

A comprehensive and well thought out list of questions, especially on the critical issues present in your particular case, needs to be prepared and ready to go. Problematic evidence that needs to be discussed during voir direiii may need to be first addressed with the court to ensure inquiry will be permitted in voir dire. 

In addition, case.net research on juror panel members and juror information sheets are included here. All notes taken from voir dire can be included in this section. 

OPENING STATEMENTS 

Before walking into the courtroom on the morning of trial, a lawyer must have some semblance of a written opening statement.iv At a minimum, an outline of what your evidence will show, and identification of the damages or relief you are seeking, must be prepared and contained in this section. You must state that the evidence will show or prove the essential elements of your case. A failure to do so risks a motion for a directed verdict at the end of your opening statement.  

Take notes of your opponent’s opening statements and place the notes here for reference later in cross-examination of your opponent’s witnesses, and for use in closing arguments if applicable. A transcript of opening statements, if available or feasible, would be better than notes.  

SCHEDULE OF EVIDENCE 

This section should divided into subsections: liability; damages (or relief sought); and evidentiary foundations. Although it is not always possible to present liability and damages evidence separately, nor do you necessarily want to present them separately during trial, the two subsections are presented separately here for clarity purposes.  Having a detailed list of your evidence that you intend to introduce at trial serves the purpose of identifying all evidence that needs to be introduced, and to ensure no evidence is inadvertently omitted.  Preparing a sketch calendar with the name of the witness and the day and time the witness is expected to be called helps with planning and coordination of evidence presentation. 

The evidence in the liability and damages subsections will contain a list of the witnesses you intend to call, along with a list of the exhibits you are planning to introduce into evidence with each witness. Preparing and including summaries of each witness’s anticipated testimony, a detailed list of questions that you need to ask to establish the ultimate facts that will be submitted to the jury, and a list of exhibits to be introduced through each witness, with a brief summary of their evidentiary purpose, will prove helpful. 

Of course, some evidence will not need a witness in order to be admitted and should be listed separately. This evidence includes:  answers to interrogatories; admissions; recordings of depositions, or reading of deposition transcripts; reading of documents and records self-authenticated; judicially noticed and recognized facts and documents; or items stipulated to by the parties. 

Demonstrative evidence is not introduced into evidence as such, but should be listed here as well. 

Any evidentiary foundation issues and requirements need to be listed in this subsection.  There are specific foundational requirements for various types of evidence, including qualifying an expert witness or lay witness, or introducing into evidence photographs or other media, or records of different types. Including in your trial notebook the pertinent case law and statutes supporting the introduction of witnesses and documents, or other types of evidence, helps you prepare for your opponent’s objections and, hopefully, will obviate any objection altogether. It is important that the foundational requirements of any evidence to be introduced and admitted be listed here with pertinent statutes and cases. 

RESPONSES TO OPPONENT’S EVIDENCE 

This section will contain your prepared cross-examination of the witnesses you opponent calls to testify. Any objections to the exhibits or witnesses offered should also appear in this section. Any rebuttal evidence also needs to be listed. 

OBJECTIONS, OFFERS OF PROOF, AND PRESERVATION OF POINTS ON APPEAL 

Trial lawyers often overlook, or underprepare for, trial objections, offers of proof, and preservation of points on appeal. Presentation of evidence, and the court’s admission or exclusion of offered evidence, occurs rapidly during the course of trial.  The litigant needs to know and articulate the correct form of the objections to evidence, statements and arguments made or offered by the opponent.  Appellate opinions repeatedly conclude that objections were not timely and properly made to preserve the point on appeal. Similarly, offers of proof are often ruled inadequate or improperly made, or untimely preserved, thus losing the point on appeal.  

The trial notebook can be used to prepare for the evidentiary issues and legal bases for your objections to evidence. The legal authority and arguments are thus readily available for review and use at trial.  Case law on the proper methods, place, and time in making offers of proof and preserving points on appeal can be placed in the notebook for review.  

In addition, case law supporting admission of your evidence, and arguments in favor of admission, can be placed in this section of your trial notebook.  

Remember, a litigant’s focused and calculated efforts in presentation and objections to evidence, rather than “on the fly” statements and objections, has greater persuasive force and will yield better results, as well as preserve the point for appeal.  

CLOSING ARGUMENTS 

As with opening statements, a written closing argument must be prepared before the trial starts. You will not know yet know what evidence introduced at trial will be admitted, but you should have confidence that you will have had the evidence that you need to prove your case admitted by the court.  

All of the closing argument ideas – phrases, catchy wordology, analogies, storytelling narratives, etc. – that you have thought about and collected since taking the case on day one should be placed in this section and put together in a persuasive manner. An effective closing argument is a process that takes time to create. 

A review of case law on objections and points of error to closing arguments is helpful and should be placed in this section for quick accessibility.v  

JURY INSTRUCTIONS 

Jury instructions must be prepared before trial starts. What you prepared can be modified depending on the evidence and court’s rulings during trial. A litigant should have a firm grasp on what ultimate facts contained in the applicable verdict-directing jury instructions  must be proved at trial.  

The jury instructions contained in this section should include the proposed instructions with references, and the jury’s clean copy. A written and an electronic format must be available. It is also a good idea to have an MAI 2.06 instruction available in case of an inconsistent or erroneous verdict or an error in filling out the verdict forms.  

POST-TRIAL MOTIONS AND MOTIONS FOR A DIRECTED VERDICT OR FOR JUDGMENT NOTWITHSTANDING THE VERDICT 

Some post-trial motions, such as a motion for a directed verdict, or motion for judgment notwithstanding the verdict (JNOV), are more or less boilerplate, but the motions must state the specific grounds supporting the motion. Prepare the motions in advance, to have them ready, and insert them in this section. A motion for a new trial has its beginnings in (perceived) erroneous court rulings as the case goes on. The litigant needs to record the rulings that need to be examined and researched and those notes should remain in this section.  Motions for a new trial or to amend the judgment or opinion must be filed no later than 30 days after entry of judgment. Motions for mistrial are usually oral, but a written one should be available, and submitted with leave of court after the oral motion is made. 

AUDIO-VISUAL TRIAL AIDS, POWER POINTS, ETC. 

The use of technology needs to be established with the court and your opponent beforehand. The items used should be listed in this subsection. A written copy of Power Points or similar electronic presentations should be available in the section with a copy available to the court and your opponent. 

CONCLUSION

Preparing a trial notebook will assist a litigant to organize the preparation and presentation of a case going to trial. The notebook acts as a catalog of all the evidence, theories, arguments, questions, supporting legal authorities, ideas, or information gathered, pertinent to each separate part of a trial. The notebook is individualized and flexible to meet your needs and purposes. When it is completed, you’re essentially ready for trial.  

[1] Motions in limine are essential to address problem evidence, or evidence that is controversial between the litigants, as well as evidence that injects undue bias and prejudice into the case, or where the probative value of the evidence is outweighed by its prejudicial effect. In order to preserve the point on appeal, if a ruling on a motion in limine is adverse to the opponent of the evidence being admitted, another objection must be made at trial when the evidence is admitted.  Likewise, evidence excluded as a result of a motion in limine will require the proponent of the evidence to make a proper offer of proof to preserve the issue on appeal.

[1] Trial briefs are always welcomed by trial judges.  Some courts will even require a pre-trial brief. Preparing and filing a trial brief is an opportunity to educate and otherwise inform the court on the facts and the laws of your case, potential legal and evidentiary issues, and to set up a compelling persuasive narrative.  The brief should be concise and quickly understandable, not complicated, convoluted, or labored.  Since the trial judge’s time is limited, you need to get your points across in an overall summary (similar to an opening statement) including a recitation of the most important evidence that supports your case.  Citations of legal authority supporting your position need to be included, and legal issues not covered in any motions in limine should also be discussed, but again, you need to be concise, direct, and to the point.  Your conclusion should advocate the outcome you are seeking based on the facts, evidence and legal authority.  The format of the trial brief is the choice of each attorney. The trial brief should not seek to “brief” every issue or contain all the evidence.

[1] There is extensive case law and legal literature discussing issues, techniques, and theories relating to voir dire.  The process can be subtle and complex but is vital to a litigant’s case.  Size limitations preclude a meaningful discussion here but it suffices to say that many skilled and seasoned lawyers believe that the case is well on its way to having been decided by the jurors once voir dire is complete.

[1] The Missouri Supreme Court held in Zabol v. Lasky, 498 S.W.2d 550, 554 (Mo. banc 1973), that a directed verdict may be entered following a proponent’s opening statement “wherein the facts recited in the opening statement, if proved, do not as a matter of law, constitute enough to make a submissive case to go to the jury.” However, “Counsel is permitted considerable latitude in making an opening statement, both as to what he says or what he does not say. The opening statement is not intended to contain all, or even a major part, of Plaintiff’s case, and he is not confined in his presentation of evidence to the proof of facts recorded therein.” Id. Counsel is permitted, following a motion for directed verdict after opening statement, an opportunity to correct or add to the opening statement.  Intertel v. Sedgwick Claims Management, 204 S.W.3d 183, 201 (Mo.App. E.D. 2006).

[1] A sampling of case law on closing argument: error to allow Plaintiff to ask for a specific amount of total damages for the first time in the final portion of his closing argument, Tune v. Synergy Gas Corporation, 883 S.W.2d 10, 20 (Mo. banc 1994); failure to firmly object to matters not in evidence during cross examination waived any subsequent objection to the non-admitted evidence during closing argument, Coats v. Hickman, 11 S.W.3d 798, 804 (Mo.App. W.D. 1999); counsel is given wide latitude to suggest inferences in the evidence in closing argument, even if the suggested inferences drawn are illogical or erroneous, Moore v. Missouri Pacific R. Co., 825 S.W.2d 839, 844 (Mo. banc. 1992); no error in replaying a video tape admitted into evidence during closing argument, Powderly v. South County Anesthesia Associates, LTD., 245 S.W.3d 267, 272 (Mo.App. E.D. 2008); proper to use demonstrative or graphic aids that are not admitted evidence in closing if done to illustrate a point based on the evidence but not in such a way as to suggest it is evidence or cause confusion, Friend v. Yokohama Tire Corp., 904 S.W.2d 575, 589 (Mo.App. S.D. 1995); not proper to appeal to jury sympathy because of poverty or lack of insurance or suggest liability insurance in the matter, Collins v. Nelson, 410 S.W.2d 570, 577 (Mo.App. Spr.D. 1965); comments or remarks appealing to or creating bias or prejudice improper, Delaporte v. Robey Bldg. Supply. Inc., 812 S.W.2d 526, 537 (Mo.App. E.D. 1991); adverse inference argument for failure to call a witness not equally available to both parties is allowable, and prejudicial error for the trial court to prevent, Simpson v. Johnson’s Amaco Food Shop, Inc., 36 S.W.3d 775, 777-78 (Mo.App. E.D. 2001); argument that employer was “more concerned about their profits than they were about safety” was within counsel’s latitude and discretion to argue.  Burrows v. Union Pacific R. Co., 218 S.W.3d 527, 535 (Mo. App. E.D. 2007).

Every year motor vehicle crashes on Missouri’s roads and highways result in a high number of fatalities and injuries. 1. The cost to society is enormous. Now with cell phones and wireless text messaging, distracted driver collisions are on the increase.2 Over 5,800 people were killed and 515,000 injured in 2008 by distracted drivers on our nation’s roads and highways.3 The total number of deaths and injuries from all causes of vehicle collisions and crashes is many times greater.4 A lawyer representing an injured individual or the family of a person killed on a Missouri road or highway should have a comprehensive under- standing of the applicable law, and investigative and trial preparation skills. This article is an overview of the law applicable to vehicle collision cases and a guide to the investigation and development of the case.

Review of the Law: Duty & Standard of Care: 

Missouri operators have a duty to exercise the highest degree of care.5 This standard of care applies to operators6 of automobiles, trucks, motor- cycles, construction vehicles, riding lawn mowers7, and bicycles8, and is imposed where the road or high- way is open for public travel or used for public travel even if not open for public use.9 If the operator of a vehicle is on a purely private road, driveway, or off-road pavement area such as a parking lot, then the opera- tor is only held to an ordinary care standard.10 Minors are held to the same standard when engaged in adult activities such as operating a motor vehicle 11, but when operating a bicycle, a minor is required to exercise that degree of care of a very careful minor of the same or similar age, capacity, and experience. 12 Operators of emergency vehicles,

such as ambulances, fire trucks, and police vehicles, are required to exer- cise the highest degree of care and follow the rules of the road, but are subject to the provision and exemp- tions of § 304.022.13 For instance, if an emergency vehicle has sirens on with a red or blue flashing light and is responding to an emergency, the operator can go through a red light signal or stop sign, but “only after slowing down as may be necessary for safe operation”14, and exceed the speed limit “so long as the driver does not endanger life or proper- ty”15. Violations can result in a gov- ernmental entity being held vicari- ously liable for negligent conduct of its employees under the statutory waiver of immunity provided by

§ 537.600.1(1).16 Private ambulance companies and drivers are also held liable for § 304.022 violations.17

Truck Safety & Regulations

In addition to common law standards of care, statutory and munici- pal rules of the road, and other indus- try standards for the safe operation of trucks, federal requirements pro- mulgated by the Federal Motor Car- rier Safety Administration, known as the Federal Motor Carrier Safety Regulations18 (“FMCSR”), establish additional minimum standards for the safe operation of trucks. These regulations include requirements for inspection and maintenance of equipment and vehicles, hours of service rules, qualification of driv- ers, licensing, knowledge and skill requirements, and general equip- ment requirements.19 The Commer- cial Drivers License (“CDL”) manu- al20, a teaching tool for truck drivers, contains the knowledge and skills identified in the FMCSR that a truck driver with a commercial drivers li- cense must possess. Consider plead- ing specific violations of the FMCSR and CDL manual, in addition to violations of common law, industry standards, and Missouri statutory rules of the road.

Passenger Negligence & Liability

A passenger can be liable for the negligence of the driver in certain circumstances. A driver’s negligence in the operation of a motor vehicle can be imputed to the passenger where an agent/principal relationship exists21, a joint venture exists between the owner passenger and the driver22, or, where the passenger fails to exercise ordinary care for their own safety.23 A passenger’s breach of the duty to exercise ordinary care for their own safety includes instances where a passenger knows or should have known the driver is impaired24, the driver demonstrates a visible lack of caution and the passenger fails to keep a careful lookout for dangerous situations and warn the driver25, a passenger interferes with the driver’s operation of the vehicle or the driver’s attention26, and where the passenger fails to warn a driver of imminent danger27.

Rules of the Road

Missouri statutes establish the “rules of the road” required to be ob- served while operating a vehicle.28 Violations of these statutory rules of the road constitute negligence per se and a finding of a driver’s negligence is not required.29 Violations of municipal ordinances and federal regulations, such as those contained in the FMCSR, can also constitute negligence per se.30 The MAI (6th ed.)31 identifies the most common verdict director instructions for both statutory and common-law acts or omissions constituting negligence. They are:

1. violated the traffic signal, MAI 17.01; 2. drove at an excessive speed, MAI 17.03; 3. defendant knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have stopped, swerved, slackened speed, sounded a warning, or slackened speed and swerved, slack- ened speed and sounded a warning, swerved and sounded a warning, but failed to do so, MAI 17.04; 4. failed to keep a careful lookout, MAI 17.05; 5. failed to signal an intention to turn, MAI 17.06; 6. failed to sound a horn before starting to pass, MAI 17.07; 7. failed to yield the right-of-way, MAI 17.08; 8. following too closely, MAI 17.09; 9. passed the car on the right, MAI 17.10; 10. suddenly slowed the vehicle on the highway without first giving an adequate and timely warning of an intention to slow, MAI 17.11; 11. suddenly stopped on the highway without first giving an adequate and timely warning of an intention to stop, MAI 17.12; 12. on the wrong side of the road, MAI 17.13; 13. came into collision with the rear of plaintiff’s vehicle, MAI 17.16; 14. negligence per se — in approaching the intersection intending to turn left, failed to drive the vehicle in the portion of the right half of the road- way nearest the center line, MAI 17.17; 15. negligence per se — drove at a speed in excess of the speed limit, MAI 17.18; 16. drove at a speed which made it impossible to stop within the range of visibility, MAI 17.19; 17. stopped the vehicle in a lane reserved for moving traffic, MAI 17.20; and, 18. drove while intoxicated32 to the extent that defendant’s driving ability was impaired, MAI 17.21.

Comparative Fault & Other Defenses 

If the plaintiff is negligent, then the plaintiff’s fault will be compared by the jury as a separate percentage of fault on the verdict form.33 Plain- tiff’s recovery is then limited to the defendant’s percentage of fault multiplied by the total damages found by the jury.34 A failure to mitigate damages can be submitted as an element of plain- tiff’s fault35, as can a failure to wear a seatbelt where such a failure contributes to plaintiff’s injuries.36 An unforeseeable loss of consciousness while driving is a com- plete defense to a claim of negli- gence.37 Similarly, if the defendant driver is confronted by an emergency road condition not of his own making, the defendant’s conduct will usually be excused.38

Operating a vehicle with defective brakes is a violation of Missouri’s brake statute and warrants a submission of such violation as negligence per se.39 However, a defendant can be excused from such violation if the brake failure was sudden and without warning.40 Weather conditions can provide a defense where the defendant, because of adverse weather conditions, neither had the time nor dis- tance in which to place the vehicle under control before colliding with

another vehicle.41 Plaintiff must prove that the defendant’s conduct caused or directly contributed to cause plaintiff’s injury or death of plaintiff’s decedent.42 In an excessive speed case, the plaintiff must prove that the excessive speed prevented the driver from avoiding the accident or that the collision would not have occurred except for the excessive speed shown by the evidence.43 In a failure to keep a careful lookout case, it must be shown by the evidence that the defendant driver could have seen the other vehicle in time to have taken effective precautionary action to avoid the collision.44 Evidence of prior good driving is inadmissible to show the absence of negligence in a vehicular collision case.45

Additional Defendants & Bases of Recovery
Other potential defendants and bases of a recovery are as follow:
1. An employer or principal of a negligent operator of a motor vehicle if the collision occurred within the scope and course of the driver’s employment or agency.46 2. The theory of negligent entrustment is used to bring a claim against the owner of the vehicle where the owner of the vehicle “entrusts” a vehicle to an incompetent driver, by reason of age, inexperience, or habitual recklessness, where the owner knew, or had reason to know, of such incompetency, and that the negligence of the entrustor concurred with the conduct of the entrustee to cause harm to plaintiff.47

3. Negligence of a driver is imputed to another under a theory of joint venture.48 4. Where the culpable driver’s vehicle is either uninsured or underin- sured, then the insurance company can become a defendant under a contract claim if such coverage exists and is applicable to the collision in question.49 5. Product liability claims can pro-

vide an additional claim against the manufacturer of a vehicle where a defect exists in the vehicle that causes or contributes to cause plaintiff’s in- juries.50 The doctrine of “crashwor- thiness” or “second injury” can im- pose liability against a manufacturer of a motor vehicle liable for defects in its product, producing injuries in excess of those caused by the original collision.51 For instance, in a simple rear end collision case, if the collision causes the gas tank to explode on im- pact, the manufacturer can be held li- able under the crashworthiness doc- trine for the injuries that are caused by the gas tank explosion which are over and above the injuries sustained in the initial rear end collision, if the gas tank and vehicle are defectively designed or manufactured. 6. Negligent, defective, or dangerously designed or constructed road- ways, traffic control devices, including improperly signed, barricaded, or marked roads and pavements, can bring in a government entity or contractor as a potential defendant.52 7. Missouri’s dram shop statute imposes liability for injuries or death caused by an intoxicated driver against any person licensed to sell intoxicating liquor by the drink for con- sumption on the premises when it is proven by clear and convincing evi- dence that the seller knew or should have known that intoxicating liquor was served to a person under the age of twenty-one years or knowingly served intoxicating liquor to a visibly intoxicated person.53 However, the statute also provides that a lawsuit cannot be maintained against the licensed seller where the intoxicated person is over 21 years of age and the intoxication arises out of the person’s voluntary consumption.54 8. Negligent repair or maintenance of a vehicle, where the faulty repair or condition of a vehicle causes a motor vehicle crash, can bring in the repair facility, mechanic, or owner as a defendant.55 9. A lawsuit may be maintained against a healthcare provider for pre- scribing medicines that are known to cause drowsiness and dizziness while driving and who failed to warn a patient of the adverse affects and to not drive where the patient then caused injury to a third party in a vehicle crash precipitated by the prescribed medicines.56

Statutes of Limitations

The Missouri statute of limitations for injuries sustained in a vehicular collision is generally five (5) years.57 If the injured plaintiff is under the age of 21, the statute of limitations is tolled until the plaintiff reaches the age of 21 and, then, plaintiff has until age 26 in which to institute an action for personal injuries.58 Mental incapacitation also tolls the statute of limitations.59 If the injuries result in death, the Missouri wrongful death statute of limitations of three years applies.60 If the plaintiff dies but the death is not related to the collision injuries, then the case must be maintained as a survival action wherein an estate must be opened to make the claim and is subject to probate law time period limitations. 61

Initial Investigation

The lawyer must act quickly to obtain and preserve available evidence to establish the facts of the collision, including: 1. obtaining the police report and police photographs, diagrams, charts, and witness statements, or any other investigative report or re- cords, such as fire department and ambulance reports; 2. obtaining photographs of the scene showing: the roadways and collision scene from relevant visual points, all traffic control devices, signs and road markings, collision debris if still present, skid marks or any other physical evidence of a col- lision, any obstructing objects such as trees, and damage to physical property such as poles, buildings, bridges, etc.; 3. obtaining photographs of the vehicles demonstrating damage and impact, and of the inside of the vehicle showing blood, damage, etc.; 4. obtaining photographs of plaintiff’s injuries, if visible, and other photographic or video evidence that demonstrate injuries and medical treatment; 5. obtaining measurements of the length and position of skid marks, collision marks and debris, lane widths, and, if relevant, the sequence of the traffic lights; 6. obtaining witness statements, either written or recorded; 7. filing a production request for cell phone and communication re- cords of the defendant operator; and 8. preserving and downloading data, if possible, from electronic data recorders (“EDR”) (“black boxes”) in the vehicles. Electronic Data Recorders (“EDR”), also popularly called “black boxes”, are essentially a device utilizing computer chips and sensors that re- cord data surrounding a vehicular crash. There is no current uniformity as to what information an EDR will record, and the recorder informa- tion varies widely, but, generally, an EDR will record pre-collision data for approximately five seconds and may include: pre-crash speed, use of restraints, airbag deployment status and time, brake use, and change in forward velocity (known as Delta- V).62 Although EDRs are not current- ly required in vehicles, the National Highway Traffic and Safety Admin- istration (“NHTSA”) has passed regulations that will require uniformity of stored information on EDRs and the ability to access the stored data.63

Determining & Proving How a Collision Happened

It is never simple to determine how a vehicular collision occurred. Differing eye witness testimony, differing interpretation of the same evidence, and inadequate or loss of evidence all contribute to uncertainty of what took place. Consider the following tools and suggestions to reconstruct and prove your case: 1. Use judicial notice to make calculations of reconstruction. The courts will judicially notice that normal reaction time is three-fourths of a second64, that a vehicle travels 1.47 feet per second per mile per hour it is traveling65, pedestrian walking speed66, headlight illumination distance67, and stopping distances of a vehicle.68 2. Determine the speed, vehicle directions of travel and movements, and locations of vehicles when first noticed or when evasive action, honking, or braking first occurred, the distance traveled and time elapsed between the time a vehicle was first noticed or when evasive action, honking or braking first oc- curred, until the initial collision and each further collision, and at the time the vehicles came to rest and the speed of the vehicles at the time of impact. Obtain all statements made at the scene and a description of the condition/damage of the vehicles, and a description of the condition, complaints, or relevant behaviors and actions of the parties post-acci- dent. 3. Pin the defendant down in a deposition to a version of facts69 that cannot be changed later. 4. Consult and possibly use an expert reconstructionist to identify points of impact, vehicle speeds, direction of travel, and time and distance variables, or other infor- mation about how the collision oc- curred. The expert testimony statute, § 490.06570, allows evidence of point of impact and other information that otherwise would not be admissible at trial. Consider using a standard of care truck driver expert where a truck driver’s fault is in issue. 5. Use computer animation videos to recreate events at issue or to illustrate physical properties or scientific principles that support your expert’s opinions.71 6. Determine if weather conditions, mechanical problems, health issues, use of alcohol or medication/ drugs, any type of distraction or interference to driving, or obstruction to vision, was a potential factor in the crash.

Proof of Damages

You don’t want a stingy damage award so do not be stingy when it comes to your damage evidence. Doctor and other health care provider testimony is critical. Use anatomical charts and radiographic/ CT/MRI films, or medical test re- sults to help prove and demonstrate the pathophysiology and injuries to educate the jury on exactly what the damages are about. Use, if available, the medical equipment and products and treatments that the plaintiff has had to use or endure. Make charts to demonstrate frequency of treatments, doctor visits, or other medi- cal events. “Day in the Life” videos can be powerful evidence. Nurses can help educate the jury as to the content of the medical records and meaning and significance of medical findings, procedures and results. Use a life care planner to testify as
to future care and costs to justify the damages sought. An economist can help prove loss of earnings, wages, and other economic losses such as loss of employment benefits. Testi- mony of family members and friends to prove plaintiff’s prior good health and activity level, and their observa- tions of how the injuries have ad- versely affected the plaintiff can be effective.

Conclusion

Vehicular cases vary from the relatively simple to understand and prove to those that are highly com- plex, complicated and difficult to re- construct and litigate. Never under- estimate the complexity of the crash, or the knowledge, cost, and effort it takes to zealously represent your clients in one of these cases. While this article is only a general overview of Missouri vehicular personal injury and wrongful death cases, it can represent a starting point for further study, research, and preparation.

1. 706 fatalities and 31,027 total injuries in Missouri in 2008. MoDot, 2008 Missouri State Highway System, Traffic Crash Statistics.
2. U.S. Department of Transportation, NHTSA, National Center for Statistics and Analysis, Traffic Safety Facts: Research Note, An Examination of Driver Distraction as Recorded in NHTSA Databases, (Sept. 2009).
3. Id. (“While these numbers are significant, they may not state the true size of the problem . . . .”)
4. Total deaths reported to be 37,261 and total injured is 2,346,000. U.S. Department of Transportation, NHTSA, Traffic Safety Facts 2008, A Compilation of Motor Vehi- cle Crash Data from the Fatality Analysis Reporting System and the General Estimates System.
5. Mo. Rev. Stat. § 304.012.1 (2009). The “highest degree of care” is defined as that degree of care that a very careful and prudent person would use under the same or similar circumstances. Wilson v. Shumate, 296 S.W.2d 721 (Mo. 1957); MAI (6th Ed.) 11.01.
6. The term “operator” as used in § 304.012.1 is broadly defined and includes “drivers” and other activities associated with a vehicle’s use on a highway or road, in- cluding entering and exiting, and while unloading or when parked. Teters v. Kansas City Public Service Co., 300 S.W.2d 511 (Mo. 1957).
7. Stonger ex rel. Stonger v. Riggs, 85 S.W.3d 703, 708 (Mo. Ct. App. 2002).
8. Rev. Mo. Stat. § 304.188 (2009); Root By and Through Root v. Mudd, 981 S.W.2d 651, 653-654 (Mo. Ct. App. 1998).
9. McTeer v. Clarkson Const. Co., Inc., 807 S.W.2d 174, 180 (Mo. Ct. App. 1991).
10. Doolin v. Swain, 524 S.W.2d 877 (Mo. 1975); ordinary care is defined as that degree
of care that an ordinarily careful and prudent person would use under the same or similar circumstances. MAI (6th ed.) 11.02(I).
11. Root By and Through Root v. Mudd, 981 S.W.2d 651, 654 (Mo. Ct. App. 1998).
12. Id. at 655.
13. Mo. Rev. Stat. § 304.022 (2009).
14. Mo. Rev. Stat. §§ 304.022.1 and 304.022.5(b) (2009).
15. Mo. Rev. Stat. § 304.022.5(c) (2009).
16. Mo. Rev. Stat. § 537.600.1(1) (2009); Southers v. City of Farmington, 263 S.W.3d 603,
620-621 (Mo. en banc 2008).
17. See Robinson v. Gerber, 454 S.W.2d 933 (Mo. Ct. App. 1970).
18. 49 C.F.R. §§ 389-399 (2009).
19. Id.
20. Missouri Dept. of Revenue, 2008 Commercial Drivers License Manual (revised
August 2009). This manual is virtually identical to the model manual created and published by the American Association of Motor Vehicle Administrators (AAM- VA).
21. Bach v. Winfield-Foley Fire Protection, 257 S.W.3d 605 (Mo. en banc 2008). This is an
instructive case on the subject.
22. Manley v. Horton, 414 S.W.2d 254 (Mo. 1967).
23. Worley v. Tucker Nevits, Inc., 503 S.W.2d 417, 421 (Mo. en banc 1973).
24. Miller v. Eaton, 733 S.W.2d 31, 33 (Mo. Ct. App. 1987).
25. Anderson v. Robertson, 402 S.W.2d 589, 594 (Mo. Ct. App. 1966).
26. Swinger v. Bell, 373 S.W.2d 30 (Mo. 1963).
27. Lamfers v. Licklider, 332 S.W.2d 882 (Mo. 1960).
28. Mo. Rev. Stat. § 304.014, et seq. (2009). The “rules of the road” apply where applicable to bicycle operators. See Root by and Through Root v. Mudd, 981 S.W.2d 651 (Mo. Ct. App. 1998).
29. Robison v. Cameron, 118 S.W.3d 638, 643 (Mo. Ct. App. 2003).
30. Id.
31. Missouri Approved Jury Instructions (MAI) (6th Ed.) (2008)
32. Evidence of alcohol consumption is admissible to prove negligent acts of driving, such as speeding or failure to keep a careful lookout, or to prove intoxication as an independent negligent act. Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104, 108 (Mo. 1996).
33. Gustafson v. Benda, 661 S.W.2d 11 (Mo. en banc 1983); MAI (6th ed.) § 37.07 Comparative Fault—Form of Verdict—Plaintiff vs. Defendant.
34. Id.
35. Love v. Park Lane Medical Center, 737 S.W.2d 720, 725 (Mo. en banc 1987).
36. Mo. Rev. Stat. §307.178 (2009) (The amount of plaintiff’s recovery can be reduced no more than one percent of plaintiff’s damages for failure to wear a seat belt, but only if expert testimony establishes that such failure caused or contributed to cause plaintiff’s damages).
37. Reece v. Reed, 326 S.W.2d 67 (Mo. 1959); Ferkel v. Bi-State Transit Development Agency, 682 S.W.2d 91 (Mo. Ct. App. 1984).
38. Stemme v. Siedhoff, 427 S.W.2d 461 (Mo. 1968).
39. See Sams v. Adams Transfer & Storage Co., 234 S.W.2d 593, 595 (Mo. 1950); Ruediger v. American Bus Lines, Inc., 426 S.W.2d 4 (Mo. 1967).
40. Id.
41. See Kaufmann v. Nagle, 807 S.W.2d 91 (Mo. en banc 1991).
42. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. 1993).
43. Powell v. Watson, 526 S.W.2d 318, 326 (Mo. Ct. App. 1975). See Calvert v. Super Propane Corp., 400 S.W.2d 133, 139 (Mo. Ct. App. 1966), where the court stated that “direct, specific proof of causal connection between excessive speed and injury is unnecessary, to mean that a party need not always prove at what slower speed the injury could have been avoided”.
44. Marshall v. Bobbitt, 482 S.W.2d 439, 442 (Mo. 1972).
45. Williams v. Bailey, 759 S.W.2d 394 (Mo. Ct. App. 1988).
46. Bach v. Winfield-Foley Fire Protection, 257 S.W.3d 605, 608 (Mo. 2008).
47. Evans v. Allen Auto Rental and Truck Leasing, Inc., 555 S.W.2d 325, 326 (Mo. 1977).
48. Manley v. Horton, 414 S.W.2d 254 (Mo. 1967).
49. See Krombach v. Mayflower Ins. Co., Ltd., 785 S.W.2d 728 (Mo. Ct. App. 1990).
50. See Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47 (Mo. 1999).
51. Mathes v. Sher Express, L.L.C., 200 S.W.3d 97, 107-109 (Mo. Ct. App. 2006).
52. Donahue v. City of St. Louis, 758 S.W.2d 50 (Mo. 1988); Huifang v. City of Kansas City, 229 S.W.3d 68, 75 (Mo. Ct. App. 2007).
53. Rev. Mo. Stat. § 537.053.2; see Coons v. Berry, 304 S.W.3d 215 (Mo. Ct. App. 2009). The precursor Missouri dram shop statute, Rev. Mo. Stat. § 537.053 (1994), con- tained a provision that allowed suits but only where a county prosecutor pros- ecuted and obtained a conviction of the licensed seller under § 311.310 (1994). This precursor statutory provision was severed from the statute and ruled un- constitutional in Kilmer v. Mun, Stefanina’s Pizza & Restaurant, Inc., 17 S.W.3d 545 (Mo. en banc 2000). The current dram shop statute replaced the previous statute in 2002. The author suggests raising the constitutionality of the current statute on grounds of vagueness and internal inconsistency. If ruled unconstitutional, then the prior common law in effect, pre-dram shop statute, would allow causes of actions for furnishing of alcohol without current limitations. See Carver v. Schafer, 647 S.W.2d 570 (Mo. Ct. App. 1983).
54. Rev Mo. Stat. § 537.053.4 (2009).
55. See generally Black v. U-Haul Co. of Missouri, 204 S.W.3d 260 (Mo. Ct. App. 2006).
56. Robinson v. Health Midwest Development, slip. op. WD58290 (Mo. Ct. App. 2001), overruled by Robinson v. Health Midwest Development, 58 S.W.3d 519, 522 (Mo. en banc 2001)(on statute of limitations grounds).
57. Rev. Mo. Stat. § 516.120 (2009).
58. Rev. Mo. Stat. § 516.170 (2009).
59. Id.
60. Rev. Mo. Stat. § 537.100 (2009).
61. Rev. Mo. Stat. § 537.020 (2009).
62. 49 CFR § 567.7(2009).
63. 49 CFR § 563(2009).
64. Hickerson v. Portner, 325 S.W.2d 783, 786 (Mo. 1959).
65. Donner v. Weinreich, 323 S.W.2d 746, 752 (Mo. 1959).
66. McFarland v. Wildhaber, 334 S.W.2d 1, 3 (Mo. 1960).
67. Smiley v. Farmers Insurance Company, Inc., 749 S.W.2d 711 (Mo. Ct. App.1988).
68. See, e.g., McCarthy v. Wulff, 452 S.W.2d 164, 169 (Mo. 1970); Rossen v. Oberkrom, 690 S.W.2d 181, 183 (Mo. Ct. App. 1985).
69. Lay witness opinion testimony that a driver had sufficient time or distance, or opportunity to stop or take evasive action is improper since the testimony in- vades the providence of the jury. See Mohr v. Mobley, 938 S.W.2d 919 (Mo. Ct. App. 1997).
70. Rev. Mo. Stat. § 490.065 (2009).
71. Black v. U-Haul Co. of Missouri, 204 S.W.3d 260, 265 (Mo. Ct. App. 2006); Grose v. Nissan North America, Inc., 50 S.W.3d 825 (Mo. Ct. App. 2001).