Non-Suit on liability, where to go from here?

What is the name of your state (only U.S. law)? California.

Posting here in hopes of some guidance for my grandmother.

In 2007 my grandmother was involved in a 3 car collision as one of the injured parties. The driver at fault was a 90 year old man.

After 4 years alot has happened with regards to the accident. First off, the insurance company refused to pay for her medical bills. She was forced to sue. Months before her trial her lawyer dropped her case, and submitted documents on her behalf (without telling her) that she would be proceeding pro per (as her own council).

The trial was set for this week. She, having no legal knowledge, didn't go about alot of things the way she should have. The worst being that she didn't have the police officer who wrote up the incident on her witness list. Because of this she could not put the traffic report into evidence, and in the end could not prove negligence of the defendant without it.

The judge ruled in favor of a Motion For Non-Suit filed by the defense on Wednesday, after my grandmother rested her case without proving negligence. I've been trying to find ways to fight it through endless google searching but haven't had much luck.

I was also looking to see if we could do anything on grounds of judicial bias, as the judge seemed very bias'd toward my grandmother from the start. She made statements along the lines of my grandmother not knowing what she was doing (well obviously not). She also seemed to argue the defense's case more than the defense's council. Often times objecting on the defense's behalf, and talking down toward my grandmothers witnesses as if they were doing things wrong (made them look stupid).

I'm wondering what we can do now at this stage.

Could we refile? What are likely problems that will arise if we do refile?
Could we make an appeal of some sort, or get the witness list amended to include the officer? I've tried finding forms to amend a witness list without any luck.

She definitely didn't get a fair trial, so there must be something we can do. I'm pretty disgusted that the law doesn't protect regular non-lawyer citizens from being tossed about in the legal system like headless chickens..

Thanks for any help.

The police officer probably couldn't have said much anyway and the police report is never admissible evidence as it is hearsay. She chose to go to trial without a lawyer even though she had no idea what she was doing and she lost; unless the action was dismissed without prejudice (and I can't imagine why it would be), she is most likely out of luck. She can have another lawyer review the case to see if he can find any error of law that would allow an appeal, but she can't appeal just because she didn't like the decision, and she CERTAINLY can't appeal without a lawyer.

The court system is NOT designed for amateurs; that's what small claims court is for. If your case is too big for small claims, you either need a lawyer or you need to spend a LOT of time in the law library and observing trials to learn the rules.

=ecmst12;2745584]The police officer probably couldn't have said much anyway and the police report is never admissible evidence as it is hearsay.

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if the officer is there to respond to questions on the report it isn't hearsay. That is most likely why the report was not admitted as it was because without the officer there, the report was hearsay.


depending on exactly what the court has ruled, there might be a possibility for your grandmother to continue the suit. She really needs to speak with a lawyer who can direct her but I believe her time, if she actually has any action, is very limited.

(a) Only after, and not before, the plaintiff has completed
his or her opening statement, or after the presentation of his or her
evidence in a trial by jury, the defendant, without waiving his or
her right to offer evidence in the event the motion is not granted,
may move for a judgment of nonsuit.
(b) If it appears that the evidence presented, or to be presented,
supports the granting of the motion as to some but not all of the
issues involved in the action, the court shall grant the motion as to
those issues and the action shall proceed as to the issues
remaining. Despite the granting of the motion, no final judgment
shall be entered prior to the termination of the action, but the
final judgment in the action shall, in addition to any matters
determined in the trial, award judgment as determined by the motion
herein provided for.
(c) If the motion is granted, unless the court in its order for
judgment otherwise specifies, the judgment of nonsuit operates as an
adjudication upon the merits.
(d) In actions which arise out of an injury to the person or to
property, when a motion for judgment of nonsuit was granted on the
basis that the defendant was without fault, no other defendant during
trial, over plaintiff's objection, may attempt to attribute fault to
or comment on the absence or involvement of the defendant who was
granted the motion.

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No, the reason the report is hearsay is because except in very rare cases, the officer did not personally witness the accident, and is only documenting what he is told by the other parties or witnesses.

If for some reason the officer personally observed some piece of evidence at the scene that would have proven her case completely, WITHOUT having to comment on what the statements given to him were, then there might have been a reason to call him, but I wouldn't think that would be too common. Even when a police report assigns fault, it's usually based on what he was TOLD by one or both of the parties, or another witness (in which case the witness himself would need to testify).

ecmst12 said:

No, the reason the report is hearsay is because except in very rare cases, the officer did not personally witness the accident, and is only documenting what he is told by the other parties or witnesses.

If for some reason the officer personally observed some piece of evidence at the scene that would have proven her case completely, WITHOUT having to comment on what the statements given to him were, then there might have been a reason to call him, but I wouldn't think that would be too common. Even when a police report assigns fault, it's usually based on what he was TOLD by one or both of the parties, or another witness (in which case the witness himself would need to testify).

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Really? You mean the recording of the physical scene upon his arrival is not first hand knowledge? Reporting what he was told by any of the parties is not first hand knowledge? Now, I'm not saying knowledge of the facts of the accident but knowledge of what any party said to him. Of course they both are but hey, for some reason you don't think they are material and factual.

and an officers testimony of what he saw at the scene and his determination goes a long way to support another's claim of how the accident transpired.

and very little proves a case completely. It is a compilation of all the evidence. The officers could generally add a lot to a trial.

She tried finding another lawyer.
None would accept her.

She didn't know of any way to proceed with her case (it had already been set in motion by her previous lawyer) other than to go forward.

Of course law and courts are not for amateurs, but she had literally no clue what to do, and nobody was willing to help.

She asked for help from several people, and all she got as a response was "I can't help you." because they didn't want to become legally responsible. Not that I can see how a simple "this form might help you" or "Try filing this motion" would be considered as legal advice.

As for the police report being hearsay... That sounds extremely odd to me. I've viewed a criminal proceeding and the DA was able to get an officer to read the report for that trial, and all the report was made up of was interviews with parties that witnessed the event. The officer was not present to witness the crime...

But if that's the case, then how could she have possibly proven the accident?

The judge barred her from even mentioning the defendants name in her own testimony. And because he was never named, this Non Suit came about.

justalayman said:

Really? You mean the recording of the physical scene upon his arrival is not first hand knowledge?

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His testimony would be first hand knowledge. The report itself is however not admissible by itself.

Reporting what he was told by any of the parties is not first hand knowledge?

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Depending on what the "party" in question is, that's pretty much the definition of hearsay. Some is admissible, some isn't.

. Not that I can see how a simple "this form might help you" or "Try filing this motion" would be considered as legal advice

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but that is legal advice and it does bind the attorney giving that advice to a relationship with your mother that could be a serious problem for him.

As for the police report being hearsay... That sounds extremely odd to me. I've viewed a criminal proceeding and the DA was able to get an officer to read the report for that trial, and all the report was made up of was interviews with parties that witnessed the event. The officer was not present to witness the crime...

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right but notice, the officer that wrote the report was reading his own report. That is my point and that is why your mother could not get this particular report entered as evidence.

The judge barred her from even mentioning the defendants name in her own testimony. And because he was never named, this Non Suit came about.

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I thought is was because she couldn't prove negligence. There is a huge difference there. As I said before, depending on what the judge ruled, she may still have an opportunity to continue this. If there is some issue that allows a nonsuit, is some situations you are allowed to correct it and continue. That all would depend on how the judge ruled in this case.

FlyingRon;2745742]His testimony would be first hand knowledge. The report itself is however not admissible by itself.

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and that was my point. With the officer there to testify to the facts he stated on the report were true and accurate and all and is available for questioning, the report can be admissible. Misto was claiming that is was simply because it was a report and that made it inadmissible. The report can be admissible if it is removed from being considered hearsay by the officer being there.

Depending on what the "party" in question is, that's pretty much the definition of hearsay. Some is admissible, some isn't

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as I understand it, if, as an example, party 1 said she was going straight and party 2 ran into the passenger side of her car; that information is hearsay, at least as far as the officers report since he is simply writing what he was told. Now, the officer can testify that that is what party 1 told him. The facts are still hearsay but the written report of them is no longer hearsay. It is a statement by the officer to what he was told.

Additionally, the officer can testify that the damage and evidence at the scene does or doesn't support that claim. The report would be entered into evidence as the officers understanding of the situation and as to his interpretation of the situation.

silent_j said:

She tried finding another lawyer.
None would accept her.

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THAT is the most telling aspect of the case...

Well, she could have withdrawn the suit. The fact that no lawyer would take the case is a really good indication that she didn't have a chance of winning even if she'd HAD a lawyer.

They wouldn't take it because she was dropped so close to the trial date. At least that is what was given as the excuse by any lawyer she asked. I'm sure there was also a "not worth my time" aspect to it, because the likely payout she was asking for wasn't a huge amount of money. Just enough to cover her medical bills.

If she'd had help I don't see how she wouldn't have won, since the only reason she lost is because she had no idea how to go about her case, not due to lack of evidence (since it existed, just wasn't allowed in). If she knew how to fight to keep her evidence in, she wouldn't be in her current position.

Since it seems I wasn't clear enough when I explained the non-suit motion, I'll try and explain a little more in depth.

Her witness list didn't have anyone on it that could prove that the guy hit her.
They were all witnesses meant to prove she was healthy before, and unhealthy after.
She also had an expert medical witness who just so happened to be her foster daughter. Because of this relationship, the judge threw out her expert testimony, and all medical facts related to it.
She didn't put the officer who wrote the report on her witness list because the defense had him on theirs (yea I know, big mistake).
Because he was not on the witness list, the only evidence of the accident she could put in was her own vehicles damage pictures. She was not allowed to put in pictures of the middle car, or the car at fault. She was also not allowed to mention either of those vehicles, and the people inside.
With the officer's report, she would have been able to put in the above pictures, as they were attached to the file.

So the non-suit was filed because she rested her case (after her witnesses were all called) without being able to put the guy at the scene, all because she was not allowed to mention him, because the report was not in evidence.

If she could, now, amend her witness list to include the officer, and therefore his report, she should be able to prove he was there. I am trying to figure out if she still has that opportunity, since she has already rested.

silent_j;2745988]They wouldn't take it because she was dropped so close to the trial date. At least that is what was given as the excuse by any lawyer she asked. I'm sure there was also a "not worth my time" aspect to it, because the likely payout she was asking for wasn't a huge amount of money. Just enough to cover her medical bills.

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that is the problem. Everybody thinks a lawyer should take every case on contingency. The fact is; when there isn't a lot of money to be won, the person needs to plan on paying hourly.

She also had an expert medical witness who just so happened to be her foster daughter. Because of this relationship, the judge threw out her expert testimony, and all medical facts related to it.

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not unexpected. The relationship soured the deal but if the daughter's credentials did support he qualification as an expert witness, mother could still have used if she argued it properly.

She was also not allowed to mention either of those vehicles, and the people inside.

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she should have been but I suspect it was what she was trying to say about them.



.

If she could, now, amend her witness list to include the officer, and therefore his report, she should be able to prove he was there. I am trying to figure out if she still has that opportunity, since she has already rested.

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don't know. Have you read the rules of civil procedure concerning this? Depending on the judges ruling, she might be able to correct the problem. That is something you will have to determine.

justalayman said:

don't know. Have you read the rules of civil procedure concerning this? Depending on the judges ruling, she might be able to correct the problem. That is something you will have to determine.

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That's where I'm lost. I haven't been able to find any way to add a witness to the list, what motion it would require or whatever. If I knew what it was called, what rule etc., I would research if it's a possibility.


And the foster daughter had been an expert witness before, in other trials, so her credentials were fine. The judge didn't really give my grandmother much time to argue to keep her in though, doing what I would describe as "lecturing" both the witness and my grandmother for the majority of the hearing.
As I mentioned before, she didn't treat both sides equally, and had probably dismissed most of what my grandmother had to say before she even said it. Bias based on lack of experience, I suppose, but bias all the same..