This case is a reminder that court trials of personal injury cases require a very skillful handling of procedural matters, and adapting quickly to changing circumstances. A case that seemed buttoned up went “south” because of a procedural error on the part of the attorney. Here are the specifics…
Jaime Gamboa was a passenger in a car involved in an accident with Dorothy Metzler. Gamboa sued Metzler, claiming that she had caused the accident by failing to yield at a stop sign. In response, Metzler claimed that Gamboa and his driver were at fault.
At trial, Gamboa’s personal injury attorney, Hermilio Iniguez, planned to call eight witnesses. Five of those witnesses testified on the second day of trial, a Wednesday, but the day’s proceedings were cut short because of scheduling problems with his other witnesses. So, the judge and the parties agreed on a revised schedule for the remaining witnesses: Gamboa’s three other witnesses would testify on Thursday, two in the morning and one in the afternoon. Robert Anderson, an expert witness called by Metzler, would also testify Thursday afternoon, leaving only Metzler’s last witness for Friday.
Based on the revised schedule, Metzler’s personal injury attorney, James Curran, contacted Anderson and asked him to testify on Thursday rather than Friday, as they had originally planned. In contrast, Iniguez forgot to call one of his morning witnesses to alert him to the need to testify Thursday morning. Thus, the witness was not available until Thursday afternoon. Because of this change, Anderson did not begin testifying until an hour after he was supposed to.
Iniguez began to cross-examine Anderson at 4:12, even though the judge had scheduled the examination to last only until 4:30. Finally, at 5:04, the judge told Iniguez to stop cross-examining Anderson. Iniguez objected to the interruption, but neither requested to continue the cross-examination the next morning nor proffered what additional evidence he expected to elicit from Anderson if allowed to continue.
Friday morning, the judge permitted Iniguez to attempt to contact Anderson to see if he could return, but he could not be reached. The judge refused to delay the trial any further.
After hearing from Metzler’s last witness and the parties’ closing arguments, the jury rendered a verdict finding Gamboa’s damages to be $111,000, but finding Metzler only 10% at fault, meaning she would be liable for only $11,100.
This episode illustrates that personal injury attorneys must be able to quickly adapt to changing circumstances. When the judge altered the schedule of witnesses on Wednesday afternoon, Curran promptly rescheduled Anderson’s testimony, but Iniguez forgot to notify one of his witnesses of the change. This delayed Anderson’s testimony and forced the judge to cut Iniguez’s cross-examination short.
Then, though Iniguez objected to the judge’s interruption, he did not ask to continue the next morning. If he had, Anderson might have known that he would need to return. Worse, Iniguez neglected to proffer any additional evidence he expected to elicit from further cross-examining Anderson. This doomed Gamboa on appeal, because it left the record devoid of any evidence that cutting off Iniguez was detrimental to Gamboa’s case. Had Iniguez been more mindful of the changing circumstances in the case, he might have obtained a better verdict and award for his client in the trial court or given him a fighting chance on appeal.
About the author
David Hameroff is an experienced personal injury attorney in Tucson. If you sustain injuries due to the negligence of another driver, call our Tucson office at (520) 792-4700 to discuss the elements of your case.