SC Lawyer, Nov. 2003, #1. Beyond the bar November 2003 Wreck this! Evidence in auto accident cases.

• Author: By Warren Mo\xEFse

South Carolina Lawyer

2003.

SC Lawyer, Nov. 2003, #1.

Beyond the bar November 2003 Wreck this! Evidence in auto accident cases

South Carolina LawyerNovember. 2003Beyond the bar November 2003 Wreck this! Evidence in auto accident casesBy Warren MoïseQuestion: Why do they call him a "chicken lawyer?"

Answer: Because all he handles are necks and backs.

Introduction

Snicker if you will, but there's money in them necks and backs. Personal injury attorneys know that when large masses of metal with people inside collide at high speeds on the highway, serious injuries can result. Moreover, there is little doubt that within the, uh, flock of auto accident lawyers are found many of South Carolina's most experienced and effective litigators.

A substantial number, if not a majority, of jury trials in common pleas courts involve auto accident negligence cases. Although the evidence rules are the same as in other litigation, certain scenarios repeatedly surface more often in wreck trials. For those members of the Bar who don't often try such cases, this column is for you.

Basic liability issues

Before a lay witness may testify about how an accident happened, he must have personal knowledge of it. Fed. and S.C. Rs. Evid. 602. In auto accident trials, this means that a foundation must be laid showing that the witness saw the accident. However, unlike other witnesses, parties may admit matters about which they have absolutely no personal knowledge under Rule 801. This guarantees that almost every wild guess, off-color joke or other stupid thing your client volunteers about the case might come into evidence. For example, a lay witness probably cannot testify that he fell asleep, ran a red light and woke up after the collision; because he was asleep, he would have no personal knowledge of the traffic light's color. A party, however, can make such an admission.

The vehicles' speeds often are a critical issue in auto cases because driving over a posted speed limit is negligence per se and evidence of recklessness. A witness who saw a vehicle before an accident may testify that it was stopped, but if it were moving, admissibility is a bit more complicated. A foundation must be laid showing that the witness has some basis for judging the speed, and even then the issue is discretionary. A judge will probably look at factors such as: (a) whether the...