NICKLAUS & ASSOCIATES, P.A.
4651 Ponce De Leon Boulevard
Suite 200 Coral Gables (Miami), FL 33146
Phone: 305-460-9888
Fax: 305-460-9889
BY: Edward R. Nicklaus, Esq.
Alexander J. Perkins, Esq.

I.

II.

III.

IV.

V.

VI.

VII

I.

The level of damages a jury may award in a trucking accident case involving serious bodily injury or death always depends on the fair presentation of the evidence heard by the triers of fact. It is essential for a lawyer to reduce any inherent bias many jurors have against trucking companies and the perceived adverse reputation of truck drivers. The best way to level the playing field for a fair trial is to humanize both the trucking company and the drivers, and to preclude as much evidence that may corroborate those biases. This will keep verdicts at a fair level and keep clients out of the appellate courts.

Having the defendant driver attend the entire trial allows the jury to put a human face on the trucking company as well as the driver himself in many instances. This, of course, depends on the type of appearance your driver makes and his demeanor. Many times a good plaintiff lawyer's objective is to evoke sympathy for the injured party by vilifying the driver and truckers in general. Oftentimes, the plaintiff may drop the driver from the lawsuit at strategic times to avoid their presence and the personalizing of the corporate defendant, in order to carry out the typical David versus Goliath theme.

Considering the nature of the difficult occupation of a truck driver, their level of education, and their rates of pay, more often than not a driver will have something negative in his or her history. The good plaintiff's lawyer will make every effort to expose the driver's negative background to the detriment of the defendants, whether relevant to the accident or not as a way to inflame jurors. It is important to therefore educate the jury about the defendant driver and the livelihood of the truck driver, stressing the difficulty, the danger and stress the average driver encounters every day in the performance of his job and the level of skill and effort required in order to safely maneuver a truck through our dangerous highways, and keep freight moving. The defense lawyer may portray the truck driver as a regular, hard working family man and citizen; just doing his or her job as many of them do.

The first thing any experienced plaintiff's lawyer will do in a trucking accident is to conduct a thorough background check on the defendant driver, including his criminal and driving history. Likewise, he will attempt to discover the safety record of the trucking company and will want all information and documentation with regard to the company's hiring practices, training and, of course, the driver's qualification and employment file. The plaintiff's lawyer will look to have as many counts in his complaint as possible, including the potential for a negligent hiring or retention claim. When the truck driver has a checkered past, or is unqualified or has been reprimanded, and it gets overlooked by the company, there certainly is the potential for more damning evidence to be introduced before the jury.

Herein, we will analyze the five important evidentiary issues that both defense and plaintiff lawyers in trucking cases frequently must deal with: (1) statements made by a truck driver to law enforcement; (2) citations for the subject accident; (3) admissibility of pleas and convictions; (4) keeping out the driver's negative driving and criminal history; and (5) visual aids and their admissibility.

II.

State prosecutors and law enforcement officers have the duty to investigate traffic fatalities and to charge a (potentially negligent) driver criminally or with traffic infractions. Therefore, it is of the utmost importance for the defense attorney, especially in accidents resulting in a homicide, to immediately, if possible, communicate with an accused driver so he or she does not make any statements or admissions of guilt inadvertently at a time when emotions are high. It is usually the norm that truck drivers have been trained by their companies to be cautious about what they say until a representative of their company and/or an attorney is present. Many states have statutes that require drivers to cooperate in the investigation of an accident, and truck drivers usually feel compelled under pressure to make a statement when being interrogated by law enforcement even if they are not at fault at all.

In accidents resulting in serious injury or homicide, exposure is high and it is therefore prudent for the driver to have the services of a criminal defense attorney to deal with any potential criminal or traffic charges that may be brought against the truck driver. The added expense of retaining criminal counsel for the driver is usually well worth the cost to the trucking company or carrier in the long run. It tends to ease the concerns of the accused driver and shows the driver that the company is behind him or her. The result is a more cooperative driver, and more protection for the rights of all.

Securing the scene of a major trucking accident includes law enforcement officers speaking with witnesses, particularly the driver. The investigating homicide officer will take a statement from the truck driver and if the driver is first read his Miranda rights that will be the determining factor of whether the statement is later admitted into evidence in any civil liability trial. In Florida (as in most states), drivers have the statutory duty to provide information to law enforcement officers who are preparing a written report related either to the crash or to the homicide investigation. See Fla. Stat. § 316.006.

Concerning driver's statements, Fla. Stat. § 316.066(4) provides: “… each crash report made by a person “involved” in a crash to a law enforcement officer for the purpose of completing a crash report required by this statute shall be without prejudice to the individual so reporting. No such reports shall be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person in the crash if that person's privilege against self-incrimination is not violated…”.

The above is known in Florida as the police report privilege. See Appendix A for chart reflecting the police privilege rule on this subject in various states. However, more often than not, a statement made by a driver in a traffic homicide investigation by a skilled homicide investigator may be admissible because the driver will have likely been given his Miranda warnings. In our jurisdiction and in other states, the purpose of the police report privilege is to provide immunity for statements made by accident drivers who are compelled by Florida Statute to make a report and talk to investigating officers in the interest of public safety. White v. Consolidated Freightway Corporation of Delaware , 766.So.2d 1228 (Fla. 1 st DCA 2000). Although Florida adheres to the police report privilege, the police officers may use the police report at trial to refresh their memory as to what they observed at the scene of the crash. King v. Califano , 183 So.2d 719 (Fla. 1 st DCA 1966).

The Florida Supreme Court has clarified the police report privilege in a fatality case where “criminal” charges might be involved, stating that it is only applicable if no Miranda warnings have been given. Further, if a law enforcement officer gives any indication to a driver that he or she must respond to questions concerning the investigation of an accident, there must be an express statement by the law enforcement official to the truck driver stating, “this is now a criminal investigation”, followed immediately by Miranda warnings, before any statement by defendant may be admitted. State v. Marshall , 695 So.2d 686 (Fla. 1997). See also State v. Norstrom , 613 So.2d 437 (Fla. 1993).

Most accidents resulting in a homicide always involve two separate reports, an accident report and a traffic homicide report. As noted above, no accident report privilege attaches to statements made by the truck driver to a law enforcement officer post Miranda warnings whether the statement was taken for either type of report. It must be noted that although a statement may be inadmissible because it is contained in a police report, if that statement is overheard by another witness, or other officer, the statement by the driver may be admissible as an admission against interest. Goodies v. Finkelstein , 174 So.2d 600 (Fla. 3d DCA 1965).

Recently, my firm successfully defended a wrongful death action in the Florida Keys involving a large trucking company. We obtained a defense verdict. The Plaintiff appealed. One of the issues on appeal was that our own driver's statement ought not to have been admissible when the Florida Highway Patrol trooper testified as to what our driver said to him at trial (as it was exculpatory in nature). The Plaintiff relied on the accident report privilege for the basis of their argument that the trial court should have precluded the statement, however, the appellate court held that since the Florida trooper who performed the traffic homicide investigation and prepared the report, administered the Miranda warnings to the truck driver prior to the interview, the statement was admissible and the police report privilege did not apply (in this case we wanted the jury to hear the statement).

In cases where there are concurrent criminal charges and civil claims brought against a truck driver arising out of the same accident, a dilemma may arise when the driver invokes his Fifth Amendment rights in the criminal proceeding. In doing so, the truck driver will also be inclined to remain silent in the pending civil matter, so as not to jeopardize what is at stake in the criminal matter, i.e., jail time. This may pose a problem for the trucking company and the driver in the parallel civil suit because, in Florida, refusing to answer interrogatories and to provide deposition testimony in a civil suit will allow the jury to draw a negative inference from the driver's silence. In this type of situation, there is a conflict of interest which will often call for separate civil defense counsel for the driver and company. If the criminal matter cannot be concluded in a speedy fashion with either a good result at trial or plea bargain involving a no contest or not guilty plea, a company may want to make every effort at early resolution of the claim.

III.

As is often the case, the truck driver is issued a citation as a result of an accident. Akin to the police report privilege in Florida, there is a similar rule which precludes the admission of citations issued as a result of the accident. Aggressive plaintiff's lawyers will usually try to allude in some fashion through witness testimony or comment (this is risky and may cause a mistrial and sanctions), an implication that the defendant truck driver was charged with a violation without saying it directly. This is because it is improper for a police officer to say whether or not a party has been charged with a traffic violation. Inquiry into whether a defendant driver has received a ticket with regard to the accident in question in a negligence action will constitute prejudicial error and warrants a granting of a mistrial. Royal Indemnification Co. v. Muscato , App.4 th District 305 So.2d 228 (1974).

Although any mention of a citation for the subject accident is not admissible, there are instances where lawyer may attempt to admit past traffic citations or criminal convictions for the purpose of impeaching a traffic offender's general credibility as a witness and showing prior “bad acts”. In Florida and most other jurisdictions, past history of traffic offense convictions as substantive evidence to establish a pattern of negligent driving, attempting to imply that the defendant driver was also driving negligently at the time of the accident giving rise to the civil trial, is not admissible.

It is widely held throughout the country that in state civil trials, when lawyers challenge the general credibility of a witness, he or she needs proof of prior convictions, but, in large part, traffic offense convictions are not admissible in a civil action as proof of the conduct itself. Estate of Wallace v. Fisher , 567 So.2d 505 (Fla. 5 th DCA 1990). Prior traffic convictions cannot be used to show action in conformity therewith on a particular occasion. Fed.R.Civ.P. 404 and 608. This is the same rule where a driver is given a traffic citation for an accident that results in a civil suit and trial. That is assuming of course the driver did not enter a guilty plea. Estate of Wallace , supra.

While defending a case representing a large trucking and logistics company against the estates of a driver and passenger killed when their car rear-ended our truck parked on the paved shoulder (emergency lane) of a limited access highway, one of the issues on appeal was the trial court's admitting testimony of a state trooper that suggested that the lessor of the truck had been charged with a traffic violation for illegally parking the truck on the shoulder of the highway. The admission of the officer's was in violation of both a motion in limine order, which was heard prior to the trial, and also in contravention of the above mentioned rule regarding the preclusion of citations as evidence in a civil trial. The appellate court held that the trial court erred admitting the state trooper's testimony.

Florida law is well settled that questions suggesting that a driver has been charged with a traffic violation in connection with an accident constitutes prejudicial error. Moore v. Taylor Concrete & Supply Co., Inc. , 553 So.2d 787, 790 (Fla. 1 st DCA 1999). This rule is in place in Florida because common sense (and experience as well) tells us that, to the average juror, the decision of the investigating police officer, i.e., whether to charge one driver or the other with a traffic violation based upon the result of his investigation, is very material, if not wholly dispositive of, that jurors' determination of fault on the part of the respective drivers. Albertson v. Stark , 294 So.2d 698 (Fla. 4 th DCA 1974); See also Spanagel v. Love , 585 So.2d 317 (Fla. 5 th DCA 1991). Any testimony regarding citations issued or implications arising therefrom by police officers are also inadmissible as such statements are tantamount to a declaration that a traffic citation had either been issued or not.

Interestingly, in another trucking case we defended and received a defense verdict, the Plaintiff appealed arguing that the court erred by allowing certain citation-related comments and testimony from the Florida Highway patrolman that the estate claimed was the equivalent of telling the jury that the defendant truck driver did not receive a ticket. Thus, the testimony should have been excluded. However, the appellate court reasoned the trooper in this case, who was qualified as an expert beforehand , was offering proper expert testimony as to the analysis of the crash, and his observation and opinion were not tantamount to allowing a jury to hear “who got the ticket” or “who did not get a ticket”.

IV.

Similar to evidentiary issues concerning a statement of a driver in a police or traffic homicide report is the common problem in trucking cases that your defendant truck driver was convicted for the accident citation and/or charged and/or convicted criminally. Sometimes, the traffic court hearing is scheduled even before there is a civil claim made or before a civil defense attorney is retained. At the very least, the traffic court proceeding usually occurs while the civil lawsuit is in its initial stages. Therefore, it is important for the defense attorney and/or trucking company to immediately establish contact with the driver to find out if there has been a citation issued, whether it has been scheduled for hearing, or whether the hearing has already occurred. The plea the truck driver enters at a traffic court hearing, or criminal proceeding, can certainly be a major factor in its admissibility in a civil suit and ultimately can affect the value of the claim.

The defendant driver who is charged with a traffic violation or charged criminally can enter one of three pleas: guilty , not guilty , or no contest (also known as nolo contendre ). Obviously, it is not in the best interest of the truck driver or his company for the driver to enter a plea of guilty if he appears in person for a hearing on a non-criminal traffic violation or criminal charge. Evidence of a voluntary and knowing guilty plea to a traffic violation, whether criminal or non-criminal, is admissible in a civil action as an admission against interest, by the implication of the conduct prohibited by the ordinance. Estate of Wallace , supra.

The trucking defense lawyer must also be aware that when a driver is charged with a non-criminal violation, he or she has the option of paying the civil penalty by mail. If a person charged with a non-criminal infraction elects to pay the civil penalty in lieu of appearing, and does so within 30 days of the date of receiving the citation, the driver will be deemed to have admitted the infraction, and to have waived his or her right to a hearing on the issue of the commission of the violation. This payment of the fine is deemed an admission but it may not be used as evidence in any other civil or criminal proceeding, as opposed to a driver appearing in person and pleading guilty and paying the fine. This mail-in option is governed by Fla.Stat. § 318.14 and applies only to non-criminal traffic violations and cannot be utilized in vehicular accidents resulting in homicide. Fla.Stat. § 318.19.

For tactical reasons, the defense attorney for the trucking company and driver may want to consider advising the driver to simply pay the fine within the 30 day time period. This may be appropriate when there is a burden, inconvenience or undue expense for either the driver or the company to have the driver present at the hearing. However, the main reason for paying the fine rather than having a driver appear at a non-criminal traffic hearing is to ensure there will be no statements on the record made by the driver that the defense attorney would have to worry about at a later criminal or civil proceeding. Additionally, paying a fine in lieu of a hearing can be beneficial if the case is highly publicized by the media and there may be reporters wanting to cover the story and/or angry family members or witnesses that may be present or want to have a say on the record.

In a civil negligence action arising out of a trucking accident, the admission into evidence that a truck driver was convicted of a traffic infraction as a result of the accident at issue constitutes material and prejudicial error and warrants the granting of a mistrial. Budget Rent-A-Car Systems, Inc. v. Jana , 600 So.2d 466 (Fla. 4 th DCA 1992). In the event your driver has already been convicted in a criminal proceeding, the Florida courts have long held that a criminal conviction may not be used as conclusive proof of facts underlying the conviction in a civil suit arising under the same facts. Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano , 450 So.2d 843 (Fla. 1984).

Accordingly, where a defendant is criminally convicted by the state of Florida, the conviction has no collateral estoppel effect on a defendant in a subsequent civil suit brought by a civil plaintiff. This Florida rule is contrary to the federal rule, which has abandoned the requirement of mutuality of parties as a prerequisite to asserting the doctrine of collateral estoppel. Parklane Hosiery Co. v. Shore , 439 US 322 (1979). The exception to the general rule, that criminal convictions are inadmissible in a civil suit arising out of the same event, is when a judgment of conviction is based upon a truck driver's guilty plea. A “guilty plea” constitutes an admission against interest and is admissible as substantive evidence.

As such, when a truck driver is convicted based on a plea of guilty, the defendant will be estopped from denying his guilt for the subject defense in a civil action. This is in contrast to a plea of no contest or nolo contendre which only represents the defendant driver's unwillingness to contest the charges and does not constitute an admission of guilt and cannot be used as direct evidence of guilt in a civil suit. When a defendant truck driver enters a plea of either no contest or not guilty at a criminal or non-criminal proceeding, evidence of the plea is not admissible at any other civil proceeding, even if there is adjudication of guilt.

As mentioned previously, truck drivers may also sometimes be inclined to admit guilt or plead guilty if they are facing criminal charges and jail time, in exchange for a lesser sentence. If such a conflict presents itself, there is still hope for the trucking company to combat the civil suit, as the trucking company would not be estopped from contesting the essential allegations found against the defendant truck driver in the criminal proceeding in the ensuing civil matter. Sun Chevrolet v. Crespo , 613 So.2d 105 (Fla. 3 rd DCA 1993). The driver, not the trucking company, is charged with the traffic infractions and/or criminal violations and therefore the trucking company is not considered a party to the criminal trial, where the defendant truck driver may have admitted guilt. Thus, there was not mutuality of parties and the trucking company did not have the opportunity to fully and fairly litigate the issue of its vicarious liability for the driver. The trucking company will be permitted to contest liability even if its driver admits guilt and is convicted.

Essentially, the concern for the trucking company and truck driver defendant is that the evidence of a conviction of a traffic infraction or criminal infraction will be used against the defendants in the ensuing civil suit to inflame a jury. Under Florida law, the evidence of a truck driver's criminal or traffic conviction will not be admissible to prove the facts on which it is based in a civil lawsuit. The only evidence of a criminal conviction that may even be admissible is one based on a plea of guilty, or on one of the qualifying offenses of Florida Rule of Evidence 90.610 (or Fed.R.Civ.P. 610). Such convictions can be used only for impeachment purposes and cannot be used as conclusive proof of the facts on which the conviction is based in the civil suit.

Since a plea of nolo contendre or no contest or not guilty is not a confession of guilt, such a plea in a criminal or non-criminal traffic proceeding may not be used as direct evidence of guilt in a civil lawsuit. According, the defense lawyer may advise the driver to plead not guilty and, at the very least, no contest, so that liability may be contested by the driver and the trucking company without question in the ensuing civil lawsuit arising out of the same accident.

V.

As noted above, a truck driver's past driving record is inadmissible at trial. However, past traffic convictions may become admissible and relevant if a plaintiff has alleged active negligence against the trucking company under theories of negligent hiring/training/retention and/or a punitive damage claim. The Federal Motor Carrier Safety Regulations require trucking companies to comply with certain minimum standards when employing drivers. The onus is on the company to maintain a driver qualification file and to perform background investigations, including looking into past employment history, reference checks, past driving history, drug testing, ensuring proper training, and to perform annual reviews.

As we all know, a good plaintiff's lawyer will try to paint a picture of the truck driver as a bad person, and will attempt to introduce any negative evidence such as prior driving history and past criminal activity and bad acts. The background of a truck driver should not be relevant as to liability for the accident. However, if there are counts against the trucking company for negligent hiring, training or retention, then unrelated traffic infractions, accidents, and criminal history may become admissible.

The trucking company needs to do thorough background investigations and pay special attention to infractions including speeding, reckless driving and operating a vehicle while under the influence of alcohol or drugs. The company's driver qualification file should contain the information required by the Federal Motor Carrier Safety Statutes. The trucking company should possess and have knowledge of their driver's MVR history and accident record, before the plaintiff's lawyer obtains it. Hopefully, the company will not retain a driver in which an annual review may reveal many traffic offenses or accidents that may be relevant in a later lawsuit.

We have run into the problem before wherein truck drivers had violations from other jurisdictions that went unreported. These untimely processing of traffic violations can come back to haunt the defense in a defensible case. We have also encountered drivers who do not even know they had previous traffic convictions, because they never received a notice of hearing for the offense. This happens because many truck drivers do not have permanent addresses and frequently move or have post office boxes.

Most trucking companies outsource the job of obtaining a potential new hire's driving record to private information gathering companies. Even though this job is outsourced, trucking companies have a non-delegable duty to ensure that their drivers do not have a suspended CDL or more than two moving traffic convictions within three years. FMCSR, 49 CFR, 49 CFR, Parts 383.87, 391.23. These computer generated reports are not failsafe and, on occasion, reports rendered by these outsource companies may not be up to date due to delays in the state or county making the information available.

Although a truck driver's past driving history is not admissible to show the truck driver was acting in conformity with his past conviction on the day of any given accident, the driving history may be admissible to show the corporate negligence of the trucking company. One way for the defense trucking lawyer to prevent the jury from hearing a driver's negative driving history is for the trucking company to admit the agency of its driver.

In Florida, a defendant may not recover under multiple theories of negligence, and therefore a company's admission of agency will eliminate the negligent hiring/retention/training claim, the conduit for which plaintiff's lawyers may introduce the truck driver's negative driving or criminal history to the jury. Not all jurisdictions subscribe to this theory that negligent hiring/training/retention claims are subsumed by an admission of agency for the driver. Yet, the majority of courts have reasoned that once a defendant admits agency for the driver, the presentation of evidence to show negligent hiring/retention/training is inadmissible under the Federal Rules of Evidence, specifically Statute 403, which excludes relevant evidence on grounds of prejudice, confusion or waste of time.

The rationale is that since the employer would be liable for the employee's negligence under respondent superior, allowing claims for negligent hiring/retention/training would not entitle the plaintiff to a greater recovery, but would only serve to prejudice the employer/trucking company. Dade County v. Carucci , 349 So.2d 734 (Fla. 3 rd DCA 1977); see also Clooney v. Geeting , 352 So.2d 1216 (Fla. 2 nd DCA 1977). One caveat where evidence of a driver's driving history may be introduced despite an admission of agency is if there is a punitive damages claim. However, more oftentimes than not, the punitive damages issue is bifurcated from the initial negligence action.

VI.

Frequently, lawyers in trucking accident cases try to explain their case through demonstrative visual aids such as artistic renditions, posed photographs, reenactment videos and computer animations in order to recreate how a particular accident occurred. A plaintiff's lawyer will use such aids in order to evoke emotion or sympathy from the jury by showing the severity or gruesome nature of the collision or to exaggerate the alleged negligent acts of the truck driver. A defense lawyer will use such aids to explain a defense position to counter the emotion or emphasize a fact that is helpful.

Creative use of visual aids to express an attorney's theme of the case is obviously an effective storytelling tool and has long been recognized as such. Computer animations may show a version of how the accident occurred or reenactment or experiment videos using exemplar vehicles similar to those involved in the accident show how a truck driver negligently positioned his truck or will show maneuvering space, and alternative measures, or show views from a truck driver's perspective, or show conspicuity issues, and may display any other relevant factual issue that one contends the truck driver did or did not do to cause the accident. Thousands of dollars are spent on exhibits and occasionally the trial judge will not allow them to be used.

The litmus test to get posed photographs, animations, reenactment or experiment videos into evidence is whether they are demonstrably similar or conducted under like circumstances as the accident. Continental Casualty Company v. McClure , 225 So.2d 590 (Fla. 2 nd DCA 1969). Common variables that may determine the admission of a recreation of an event or experiment are similar lighting and weather conditions, time of year, time of day, driving surfaces, vehicles, etc. The best way to ensure that your videos or photographs are usable at trial is to produce them at the actual accident site, or under substantially similar settings or conditions, by a professional. Additionally, the calculations, measurements and science on which the videos are based must be accurate and in accordance with generally accepted principals; otherwise, the visual aid may be inadmissible as similar fact evidence. Fla.Stat. § 90.404(a).

Computer animation is commonplace in the courtroom as a tool for reconstructing accidents, particularly in high exposure cases. To be admissible as a demonstrative exhibit, computer animation must be a fair and accurate depiction of what it purports to be, which is the same foundation that must be established to admit any pictorial representation, be it videotape, motion picture or photograph. Pierce v. State , 718 So.2d 806 (Fla. 4 th DCA 1997). There have been instances wherein the court has ruled that computer animations interspersed throughout a videotape rendered the videotape inadmissible when the animations are deceptive and prejudicial in light of the entirety of the conflicting evidence. Campoamor v. Brandon Pest Control, Inc. , 721 So.2d 333 (Fla. 2 nd DCA 1998). Florida courts, however, do not allow testimony presented by way of videotape into a jury room. Young v. State , 645 So.2d 965 (Fla. 1994).

A couple of years ago, my firm worked on a trucking accident case which involved a loading dock worker being sandwiched and crushed to death between the loading dock and trailer. Our driver was attempting to couple the fifth wheel of the tractor to the kingpin of the trailer when the trailer bucked up just enough to fatally wound the worker who was standing behind the trailer for some unknown reason. Issues arose with regard to the trailer's brake adjustments, procedures with regard to proper coupling, and multiple DOT violations concerning the entire vehicle.

The plaintiff's attorney in this case hired an expert truck driver and proceeded to make a videotape to demonstrate the appropriate coupling procedure and how our driver deviated from it. The plaintiff accused our truck driver of negligently attempting to ram the fifth wheel into the kingpin of the trailer without having properly raised the trailer high enough, failing to properly apply the spring brakes, and failing to ensure that no one was behind the trailer. Plaintiffs wanted to show the jury that when a truck is coupled properly and trailer brakes are locked and applicable procedures are followed, there should be no rearward movement to the trailer. The plaintiff also tried to establish liability by showing the brakes were out of adjustment pursuant to FMSCR standards, as well as other violations cited by the DOT.

This videotape was not made at the actual scene of the accident and rather was made in the parking lot of the expert truck driver's office. Obviously, plaintiff's counsel did not seek access to our truck, therefore, he had to use an exemplar vehicle which we showed was different than the one involved in the accident. They also performed this experiment on a different type of surface than the one actually involved at the accident scene. Nonetheless, the videotape was presented to the jury over our strenuous objection. We believe the introduction of this video cost us a defense verdict and made for a point on appeal.

An example where the court barred the defendant from introducing at trial the film of an experimental reenactment of the plaintiff's accident in similar circumstances as the actual accident was in the case of Continental Casualty Co. v. Jack McClure , 225 So.2d 590 (Fla. 2 nd DCA 1969). The case involved the plaintiff attempting to collect under an insurance policy after his hunting rifle accidentally went off while he was driving across some railroad tracks. The defense attorney attempted to reenact the event to show the incident could not have happened as explained by the plaintiff. The judge barred the motion pictures' inclusion into evidence, because it was taken a year and a half after the accident, and the plaintiff's car had been sold and junked. The court reasoned that although there was an allegation that the car used for the test was in all respects like the plaintiff's, there are many variables such as tire pressure, condition of shock absorbers, and the like which make the car in which the experiment was run a doubtful duplicate.

In the event the judge does allow the jury to view unfavorable demonstrative aids submitted by the plaintiff, a defense attorney may request the judge to issue a cautionary instruction reminding the jury that the photograph, video, or animation is only one party's version of the incident. Such demonstrative aids purporting to show reenactments of an incident are subject to objection that the bias of the party or agent preparing the scene, directing and taking the pictures has intruded and affected the accuracy of the pictures. Grant v. State , 171 So.2d 361 (1965).

Generally, the Florida courts allow videos, photographs, and animations into evidence if they tend illustrate or explain the testimony of a witness. Lindberg v. State , 134 Fla. 768 (1938). Thus, demonstrative aids have been held admissible under proper safeguards by the courts. When a videotape is proffered into evidence, the trial court must be ever mindful that the artificial recreation of an event may unduly accentuate certain phases of the happening, and because of the forceful impression made upon the minds of the jurors by this kind of evidence, it should be received with caution.

Cave v. State , 660 So.2d 705 (1995). As pointed out by Wigmore Evidence , [3 rd Ed.] § 798a, “such a portrayal of an event is apt to cause a person to forget that it is merely what certain witnesses say was the thing that happened, and may impress the jury with the convincing impartiality of Nature herself.”

Video reenactments with exemplar vehicles, posed photographs, and computer animations may be admissible if they accurately portray the scene or the situation. However, there must be an awareness of the danger inherent in using posed photographs, computer animations, and video reenactments to support one's version of the facts including the tendency of the demonstrative aids utilized to unduly emphasize certain testimony and the possibility that a jury may confuse one party's reconstruction with an objective fact. Metropolitan Dade County v. Zapata , 601 So.2d 239 (Fla. 3 rd DCA 1992).

Accordingly, if a videotape reenactment, animation, or photograph involves reconstruction and reenactment, it may be subject to the objection that the bias of the party or agent preparing the scene, directing and producing the images has intruded and affected the accuracy. An attorney may also try to object to the demonstrative aids if they are mere speculation and are not based on any particular factual evidence or record testimony by a witness. Trucking lawyers should be prepared and fully capable of exploring any deficiencies in the demonstrative aids on cross or before trial, before the judge does allow the item into evidence. If a good cross examination reveals those deficiencies it can be very devastating to an opponent's case for a judge to strike an item after it is initially admitted.

Another way a trucking lawyer can challenge the admissibility of the video or animation reconstructing an accident, is by challenging the qualifications of the producer of the visual aid, and whether the methodology used has achieved general acceptance within the relevant scientific community. In other words, it must meet the Frye or Daubert test, depending on your jurisdiction. Any videotape or animated reconstruction must be provided to one's expert to review the data on which the reconstruction is based and to point out any deficiencies or flaws. Requirements of competency, relevancy, and materiality provide the basis for permitting the use of such simulations of the accident or accident scene. Sims v. Brown , 574 So.2d 131 (Fla. 1991).

In addition to reenacting the accident, the plaintiffs may try to use photographs, movies, videotapes, or animations to illustrate damages, or the extent of the injury incurred as a result of the trucking accident. Plaintiffs like to use “day-in-the-life” videos to tell the plaintiff's story, and those too are also subject to the same considerations as any other visual reenactment. Protective Cas. Ins. Co. v. Kellane , 447 So.2d 316 (Fla. 4 th DCA 1984).

An example of a day-in-the-life video that was not admissible in the Florida courts was a case in which a neurosurgeon was involved in an automobile accident and the resulting injuries left him unable to continue his practice. The appellate court ruled it was error to admit a videotape that had been shown on national television two months before the accident, depicting the doctor's surgical practice, and his life as a surgeon. This videotape contained statements by patients and family members, and therefore, the court determined that there was substantial danger of unfair prejudice because the evidence was cumulative and the jury could not reasonably be expected to consider the tape solely as an aid to understanding the doctor's reputation and loss of enjoyment of life, and to disregard the provocative, emotional nature of the inadmissible statements. Aetna Casualty & Surety Co. v. Cooper , 485 So.2d 1364 (Fla. 2 nd DCA 1986).

Likewise, a defense lawyer must be cautioned that a reenactment, animation, or posed photograph that is otherwise inadmissible may become admissible during cross-examination, if the defendant opens that door. The basic test of admissibility of a photograph or other visual aid is not necessity, but relevance. Bush v. State , 461 So.2d 936 (Fla. 1984). As such, a proper predicate for introducing a visual aid must be laid by the party seeking to introduce it into evidence. City of Jacksonville v. Hampton , 108 So.2d 768 (Fla. 1 st DCA 1959). As a general rule, the admissibility of demonstrative visual aids mentioned above are within the sound or broad discretion of the court.

VII.

These above issues are always in the forefront of every trucking case throughout the country. The actual laws may vary from state to state but result in a hard fought civil trial more often than not depends on how a trial judge rules on these issues because their effect on a jury can be devastating. Knowing and handling these issues effectively is the mark of a well prepared trucking lawyer.

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