CUSHNER & BLOOM, P.C.

BROOKLINE, MA  02446

Tel. (617) 608-0019

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The Elements of A Personal Injury Jury Trial

The Jury's Role:
In any civil jury trial, such as in an auto accident case, the jury hears the evidence and
decides what the facts of the case are.  In deciding the facts of the case, the jury has to
decide which testimony to believe and which testimony not to believe.  The jury may
believe everything a witness says, or part of it, or none of it. In considering the testimony
of any witness, the jury may take into account:

             (1) the opportunity and ability of the witness to see or hear or know the things
                   testified to;
             (2) the witness' memory;
             (3) the witness' manner while testifying;
             (4) the witness' interest in the outcome of the case and any bias or prejudice;
             (5) whether other evidence contradicted the witness' testimony;
             (6) the reasonableness of the witness' testimony in light of all the evidence;
                   and
             (7) any other factors that bear on believability.

Plaintiff's Burden of Proof:
The injured person who brings the law suit is called the "plaintiff."  A plaintiff may
recover on his/her claim if he/she proves the following things, by a "preponderance of the
evidence":

                    (1) That the person being sued for causing the accident, called the defendant,
                          was negligent; and
                    (2) That defendant's negligence was the "legal cause" of the injuries and
                          monetary losses that the plaintiff suffered.

A "preponderance of the evidence" simply means evidence that persuades the jury that
the plaintiff's claim is more likely true than not.  To put it differently, if one were to put
plaintiff's and defendant's evidence on opposite sides of the scales, plaintiff's evidence would make the scales tip slightly on the plaintiff's side.

Negligence
Auto accident cases usually deal with that area of the law known as the law of
negligence.  It is a broad area of the law, and it has many applications.  Generally,
negligence means the failure to exercise that degree of care that the ordinarily
reasonable, cautious, prudent individual would have exercised under all the facts and
circumstances existing in some particular situation. In other words, negligence is the
failure to exercise that degree of care that a reasonable person would exercise under the
circumstances.

Negligence may be doing something that the ordinarily reasonable, cautious, prudent
person would not have done under all the facts and circumstances existing at a particular
time and place.  It may also be the failure to do something that the ordinarily reasonable,
cautious, prudent person would have done under all the facts and circumstances existing
at a particular time and place.

In Massachusetts, violation of a law of the road (e.g. running a stop sign) is evidence of
the defendant's negligence and may be considered by the jury if the traffic law violated
was intended to prevent the type of harm that occurred in this accident.

Proximate Cause
The "legal cause" of an injury is a cause which is a "substantial factor" in bringing about
the injury.  In determining whether the defendant's conduct was the "legal cause" of the
plaintiff's damages, the jury determine whether the defendants' conduct had such a
substantial effect in producing the injury as would lead reasonable persons to regard it as
a cause. Causation is incapable of mathematical proof, since no person can say with
absolute certainty what would have occurred if the defendant had acted otherwise.  Juries
are permitted to draw upon ordinary human experience as to the probabilities of the case.

Damages
If the defendant is found negligent, the plaintiff is entitled to recover an award of
damages that will place him in the position he was in immediately before the defendant's
negligent act.  In other words, the plaintiff is to be compensated for all past, present, and
future harm caused by the defendant's negligence. The elements that make up the
damages the plaintiff may recover include, but are not necessarily limited to, the
following:

                    1. the reasonable value of necessary medical care incurred and which
                        will be incurred in the future;
                    2. fair compensation for the diminution in earning power, that is, the loss
                        of the capacity to work and earn a living; and
                    3. fair compensation for physical and mental pain and suffering and
                        reasonably probable future physical and mental pain and suffering.

There is no formula by which the jury will determine the amount of damages, other than
to apply common sense and reason in weighing the evidence of the nature and
extent of the injuries received.  Mental suffering can consist of sadness, depression, grief,
anxiety, worry, embarrassment, terror, ordeal, shock or apprehension.  By mental
suffering, it is meant any mental anguish or emotional distress, as distinguished from
physical pain and suffering.  This factor may also include mere loss of enjoyment of life
as a result of  the defendant's conduct.

            ATTORNEY STEVEN BLOOM IS AVAILABLE TO REPRESENT INJURED PERSONS, WHETHER THERE CASE CAN BE SETTLED OR NEEDS TO GO TO TRIAL. 

Attorney Steven Bloom has been representing injured persons since 1985, included those injured in auto accidents, motorcycle accidents, bicycle accidents, public transportation accidents, slip and fall accidents, snow and ice fall downs, work accidents and persons injured due to medical malpractice.  He has handled cases involving those suffering from minor soft tissue injuries to death cases.  At Cushner & Bloom, P.C., my clients always get the attention of the attorney handling their case.  I know that my clients' questions are important to them and therefore make it my policy to try to return all telephone calls as soon as possible, and almost always within 24 hours.