SigalebLAWg Failure to Submit Your Evidence Can Have Devastating Consequences

Failure to Submit Your Evidence Can Have Devastating Consequences

It seems axiomatic for an attorney representing a client in a lawsuit that when you have evidence against your opponent, you should use it.  Sometimes the failure to do so can be for strategic reasons, such as the fear that the evidence will open the door to some other evidence that is actually damaging to your client.  Sometimes the evidence is planned for a purpose that never comes (that seemed to be the case in the Rod Blagojevich trial, when the government reportedly withheld evidence from its case in order to use it during a rebuttal that never came because the former Governor (surprisingly) never testified).  Sometimes the failure to produce helpful evidence seems to be a mystery.

In the recent case of Simmons v. Reichardt (4th Dist. 2010), a woman was injured on a trampoline on her friend’s mother’s property while playing a game called “popcorn” with a mutual friend and a child.  The plaintiff was sitting in the middle of the trampoline while the others jumped around her, trying to “pop” her in the air.  The trampoline bottomed out, and plaintiff hit the ground and was allegedly injured as a result.  She sued both the friend and his mother, alleging that (1.) the friend and his mother both knew of loose springs in the trampoline and (2.) did not warn plaintiff about either the loose springs, or that the weight of all the people on the trampoline might cause the “bottoming-out” result that caused the injury.

In pertinent part, the friend won summary judgment because he did not own either the trampoline or the property, and thus had no duty to warn plaintiff of anything.  Statements by the friend after the fact that he knew of the loose springs were considered vague by the court and not showing of prior knowledge.

The plaintiff filed a motion to reconsider, with two pieces of evidence that were not originally presented: (1.) an affidavit of the friend’s ex-wife, who testified the friend purchased the trampoline during the marriage and kept it after the divorce; and (2.) the friend’s own deposition testimony, where he admitted he bought the trampoline before moving to his mother’s home.  However, under the law, if one wants to introduce new evidence during a motion to reconsider, one has to show the evidence was new or unobtainable during the original proceedings.  Though the plaintiff argued she did not know of the ex-wife’s knowledge until the 13th hour (which the court rejected), there was no good reason given why the defendant’s deposition testimony was not presented to the trial court in the first place.  The trial court said the new evidence was improperly offered and rejected it, along with the motion to reconsider.  The Appellate Court said the trial court ruled correctly based on the evidence properly presented to it at the time.  Summary judgment for defendants affirmed.

The lesson from this case is that an attorney needs to be prepared enough to (1.) recognize the important evidence in one’s case and (2.) timely present it.  I have seen litigants acting without an attorney go to trial having left their important evidence at home, because they did not realize they needed it.  The Judge’s usual question: “when did you think you were going to need it?”  As Simmons demonstrates, an attorney also needs to be extra careful to make sure he/she does not leave the important evidence at home, either.  The opinion mentioned a summary judgment checklist offered by the federal courts in central Illinois, and whether you use that (or something similar) or not, an attorney has to be knowledgeable and prepared enough about the case to recognize and offer critical evidence.  A good tool I have heard (and recommended) for this is to make a spreadsheet or chart of all the elements of the case, and all the defenses against the case, and list the evidence you have that proves/disproves each element.  When you are done, you will know exactly what evidence you have, why it is important, and what holes still need to be plugged in.  This is one way to help one avoid the same result as the Simmons case.

For those who were expecting an expose’ on trampolines, sorry.