Motion 17-Plaintiff's Motion for Judgment Notwithstanding the Verdict or in the Alternative for A New Trial in Car Accident Case

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Plaintiffs' Memorandum in Support of Their Motion for Judgment Notwithstanding the Verdict or in the Alternative for A New Trial

________________, ________________ (Address)(Phone)(Fax), Attorneys for Plaintiffs.

Comes now Plaintiffs, Harold D. Bender and Jan Bender, by and through their attorneys, Ezra & Associates, LLC, and in support of their Motion for Judgment Notwithstanding the Verdict or in the Alternative for a New Trial, state as follows:

BACKGROUND

This case arose from an automobile accident that occurred on March 3, 2003 between vehicles operated by Harold Bender (hereinafter “Bender”) and Kasey Hood (hereinafter “Defendant”).

On August 8, 2003, Bender filed the present action against Defendant for personal injuries he sustained in the accident.

The trial for this matter was held on December 3 - 5, 2007. The jury returned a verdict for Bender finding that Defendant was liable for Bender's neck and back injuries resulting from the accident. The jury awarded Bender damages of $3,853.25 for his neck and back injuries. The jury awarded zero damages for his pain and suffering and for his claimed carpal tunnel injuries.

Bender submits this Memorandum in support of his Post-Trial Motion.

ARGUMENT

A court may grant a directed verdict, or a judgment notwithstanding the verdict, where “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.” Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992) (quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d at 510, 229 N.E.2d 504.)

In the alternative, a trial court has discretion to grant a new trial if 1) the verdict is against the manifest weight of the evidence; 2) prejudicial conduct at the trial influenced the jury's decision; 3) irrelevant evidence prejudiced or confused the jury or influenced its view of relevant evidence; or 4) improper impeachment was allowed, especially when the jury's verdict depends substantially on witness credibility and the improper impeachment occurs with other improper statements that reflect a persistent effort to prejudice the jury. Lee v. Calfa, 174 Ill. App.3d 101,112-13 (2nd Dist. 1988). First Nat. Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 207 (1st Dist. 2007) ; Regan v. Vizza, 65 Ill. App. 3d 50, 53 (1st Dist. 1978) ; Templeton v. Chicago & North Western Transportation Co., 257 Ill.App.3d 42, 194 (1stDist. 1993).

I. PLAINTIFF SHOULD BE GRANTED A JUDGMENT NOTWITHSTANDING THE VERDICT BECAUSE, EVEN VIEWING THE EVIDENCE IN THE LIGHT MOST FAVORABLE TO DEFENDANT, THE EVIDENCE SO OVERWHELMINGLY FAVORS PLAINTIFF THAT NO CONTRARY VERDICT IS POSSIBLE.

In ruling on a motion for a judgment notwithstanding the verdict, a court does not weigh the evidence, nor is it concerned with the credibility of the witnesses; rather it may only consider the evidence, and any inferences from it, in the light most favorable to the party resisting the motion. Maple v. Gustafson, 151 Ill. 2d 445, 454.

Plaintiff seeks a judgment notwithstanding the verdict, or in the alternative, a new trial for the following reasons:

A. The motor vehicle accident proximately caused Bender's bilateral carpal tunnel syndrome, which required him to undergo the necessary surgery.

B. The motor vehicle accident proximately caused Bender's carpal tunnel in his left hand as there was no record, nor any complaint, of carpal tunnel in the left hand.

C. At the very least, the motor vehicle accident aggravated Bender's carpal tunnel condition in at least one, but possibly both, of his wrists.

Plaintiff's tendered instruction #16 states the following:

“If you decide for the plaintiff Harold Bender on the question of liability, you may not deny or limit the plaintiff Harold Bender's right to damages resulting from this occurrence because any injury resulted from an aggravation of a pre-existing condition or a pre-existing condition which rendered the plaintiff Harold Bender more susceptible to injury.”

IPI 30.21. Defendant's own medical expert, Dr. Rotman, testified at trial that the motor vehicle accident aggravated Bender's carpal tunnel syndrome. Dr. Rotman also testified that the subsequent surgery performed by Dr. Miller was necessary to treat Bender's carpal tunnel syndrome in both wrists. Furthermore, Bender never went to see anyone prior to the accident for carpal tunnel syndrome. It was only due to his physician's observations while Bender was being treated for arthritis that it was ever mentioned. For the three years leading up to the accident Bender never experienced any pain in either of his wrists, and for that reason did not seek any treatment. It was only after the accident of March 3, 2003 that he began to feel significant numbness, tingling, and pain in his wrists. It was only after the motor vehicle accident that Bender was told by a physician that he would require surgery to properly treat his carpal tunnel syndrome. The motor vehicle accident was at the very least an aggravation of Bender's carpal tunnel syndrome and the verdict should be adjusted accordingly.

D. Additionally, Plaintiff would like to incorporate any and all arguments appearing in the latter sections of this Memorandum into this section requesting a judgment notwithstanding the verdict, or in the alternative, a new trial. Such arguments include but are not limited to the following:

1. Plaintiff should be granted a new trial because the jury's verdict is against the manifest weight of the evidence.

2. Plaintiff should be granted a new trial because prejudicial conduct at the trial improperly influenced the jury's decision.

3. Defense counsel made inflammatory statements during his closing argument for the sole purpose of improperly influencing and prejudicing the jury.

4. The trial court erred in allowing irrelevant evidence to prejudice or confuse the jury or influence its view of relevant evidence.

5. Absent expert testimony, it was improper for defense counsel to argue or even imply that there is a correlation between the extent of Bender's vehicular damage and the extent of his injuries caused by the accident, as such argument is irrelevant and forces the jury to resort to mere speculation.

6. Defense counsel improperly impeached the plaintiff, Harold Bender, whose credibility was at issue, with prior statements that were not materially inconsistent with his testimony at trial, and such impeachment occurred with other improper statements made in an effort to prejudice the jury.

7. If any one of the complaints set forth above may not alone require reversal, then taken together the complaints establish a pattern of conduct intended to thwart the orderly administration of justice.

Therefore, Plaintiffs, Harold D. Bender and Jan Bender, requests that this Honorable Court set aside the jury's verdict in favor of the Plaintiffs and/or grant Plaintiffs a new trial, and grant such other relief as the Court may deem appropriate.

II. PLAINTIFF SHOULD BE GRANTED A NEW TRIAL BECAUSE THE JURY'S VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

On a motion for a new trial, the court should weigh the evidence and a new trial granted if the verdict is against the manifest weight of the evidence. Maple v. Gustafson, 151 111. 2d 445, 454 (1992); First Nat. Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 207 (Ill. App. 2007). A verdict is against the manifest weight of the evidence when the findings of the jury are unreasonable, arbitrary and not based on the evidence, or when the opposite conclusion is clearly apparent. Maple, 151 Ill. 2d. at 454-55.

A. The jury's award of zero for Harold's pain and suffering was inconsistent with its award of $3853.25 for Harold's medical bills and against the manifest weight of the evidence, thus a new trial should be granted.

The jury's failure to award damages for pain and suffering was inconsistent and not supported by the evidence. Murray v. Philpot, 305 Ill. App. 3d 513, 516 (5th District 1999). In Murray, the Appellate Court found the jury's verdict to be irreconcilably inconsistent since the jury ignored a proven element of damages which the jury is not free to disregard.Murray, 305 Ill. App. 3d at 516.

In Snover v. McGraw, the jury awarded limited damages for medical out-of-pocket expenses, medical bills, and physical therapy, but it awarded no damages for pain and suffering. Snover v. McGraw, 172 Ill. 2d 438, 443 (1996). The Supreme Court upheld the verdict due to the plaintiff's delay in seeking treatment, her ability to participate in everyday activities, the subjective nature of her complaints, and the conflicting expert testimony. Snover, 172 Ill. 2d at448. Additionally, the plaintiffs did not allege any errors of law, such as improper admission of evidence, which would affect the jury verdict. Snover, 172 Ill. 2d at 449.

However, the Court also made clear an award of medical expenses without a corresponding award for pain and suffering may not be appropriate in other cases. Snover, 172 111. 2d at 449. In making this determination in a post-trial motion among other things, the trial court should focus on the distinction between subjective complaints of injury and objective symptoms. Snover, 172 Ill. 2d at 449. When a plaintiff's evidence of injury is merely subjective and unaccompanied by objective symptoms, the jury may choose to disbelieve the plaintiff's testimony as to pain. Snover,172 Ill. 2d at 449. Similarly, a jury is free to find plaintiff's evidence of pain and suffering to be unconvincing when such evidence is primarily subjective. Murray, 305 Ill. App. 3d at 513. HOWEVER, as distinguished byMurray, when the plaintiff submits uncontroverted and/or objective evidence of pain and suffering, such evidence may not be disregarded. Murray, 305 Ill. App. 3d at 513.

The plaintiff in Snover had almost no objective symptoms of pain. Murray, 305 Ill. App. 3d at 514-15; See Snover, 172 Ill. 2d at 441. She made no complaints of neck pain. Murray, 305 Ill. App. 3d at 515; See Snover, 172 Ill. 2dat 443. The expert testimony on plaintiff's injuries was in conflict. Murray, 305 Ill. App. 3d at 515; See Snover, 172 Ill. 2d at442-43. The jury awarded damages for medical bills arising from the date of the collision through the plaintiff's initial therapy sessions, and it awarded limited damages for out-of-pocket medical expenses. Murray, 305 111. App. 3d at515; See Snover, 172 Ill. 2d at 442. The plaintiff had been involved in two subsequent car collisions and had suffered a weightlifting injury between the date of the accident and the trial. Murray, 305 Ill. App. 3d at 515; See Snover, 172 Ill.2d at 442.

In Murray, unlike Snover, there were three different doctors who found objective symptoms of injury upon examining the plaintiff. Murray, 305 Ill. App. 3d at 515. An x-ray demonstrated physical injury serving as an objective sign consistent with her subjective complaints of stiffness and spasm. Murray, 305 Ill. App. 3d at 515. The medical experts were all in agreement that plaintiff sustained a soft-tissue injury. Murray, 305 Ill. App. 3d at 515. Also, there was no evidence the plaintiff was involved in any automobile accidents between the accident and the time of trial. Murray,305 Ill. App. 3d at 515.

In this case, unlike Snover but similar to Murray, there is objective evidence of Bender's injuries to his back and neck consistent with his complaints of soreness and pain. Bender did complain of neck discomfort and muscle discomfort around the neck and back to his physicians, and those complaints are documented in the medical records. Bender received a prescription for physical therapy for neck pain two weeks after the motor vehicle accident. The medical records reflect Bender was prescribed Flexeril, a muscle relaxant, and Vicodin, a painkiller, two days after the accident. Bender was seen at Fitness Designs Physical Therapy and Sports Rehab on April 1, 2003 with a diagnosis of neck pain. At that time, the medical records indicate Bender had about 50% mobility with muscles guarding his neck. An MRI report from Twin Rivers MRI Center on March 13, 2003 showed some cervical straightening and some reversed lordosis centered at C5-C6. Bender was seen on March 3, 2003 at Anderson Hospital and x-rays of the neck at that time showed some degenerative changes and narrowing at C5-C6 and some degenerative changes in the thoracic spine. It documented in the medical records that Bender sustained a whiplash type injury to his neck as a result of the accident. There was no conflicting expert medical testimony in regard to Bender's back and neck pain.Dr. Miller and Dr. Rottman were both in agreement that Bender suffered neck and back injuries as a result of the automobile accident. Bender received full, not limited, damages for his medical expenses incurred for his back and neck treatment, including physical therapy. Like Murray, there was no evidence that Bender was involved in any other accidents subsequent to the automobile accident in this case.

Bender's overwhelming objective evidence of injury could not have been disregarded by the jury. Therefore, a new trial should be granted on the basis of the jury's inconsistent verdict.

III. PLAINTIFF SHOULD BE GRANTED A NEW TRIAL BECAUSE PREJUDICIAL CONDUCT AT THE TRIAL IMPROPERLY INFLUENCED THE JURY'S DECISION

A trial court must prevent prejudicial conduct at trial and grant a new trial if prejudicial conduct has occurred. Bisset v. Village of Lemont, 199 Ill. App. 3d 863, 865-66 (1983). Misconduct by an attorney, including improper argument, is a sufficient basis for the award of a new trial. Bisset, 119 III. App. 3d at 865. A trial court may award a new trial if it determines that the jury's decision was not based on the merits of the case, but was improperly influenced by prejudicial conduct. Bisset, 119 Ill. App. 3d at 868.

A. Defense counsel made inflammatory statements during his closing argument for the sole purpose of improperly influencing and prejudicing the jury, and Harold Bender is entitled to a new trial.

In closing argument, an attorney is permitted only to make reasonable comments based on the evidence. Regan v. Vizza, 65 Ill. App. 3d 50, 53 (Ill. App. 1978). However, it is improper for an attorney to use inflammatory language that arouses the prejudice and passions of the jury. Regan, 65 111. App. at 53; Eizerman v. Behn, 9 Ill.App.2d 263, 287 (Ill. App. 1956). Additionally, plaintiff is entitled to a new trial when the defense counsel's action may have improperly influenced the jury's assessment of the plaintiff's witness' credibility. Poole v. University of Chicago, 186 Ill. App. 3d 554, 561 (1st Dist. 1989).

In Poole v. University of Chicago, the Illinois Court of Appeals concluded that the plaintiff was entitled to a new trial when defense counsel's referred in his closing argument to the plaintiff's expert as a “liar”. The court found that the defense counsel's actions may have improperly influenced the jury's assessment of the credibility and testimony of the witness, entitling the plaintiff to a new trial. Pool, 186 Ill. App. 3d at 561. Similarly, the accusation in a defense counsel's closing argument that the plaintiff's suit is an attempt to “play the lottery” or “cash in on a lottery ticket” is improper as it is intended to inflame the jury, and gives grounds for a new trial. Schoon v. Looby, 670 N.W.2d 885, 891 (S.D. 2003) : Murphy v. Int'l Robotic Sys., Inc., 766 So. 2d 1010, 1032 (Fla. 2000) ; State v. Cruz, 71 Conn. App. 190, 206 (Conn. App. 2002).

During his closing argument defense counsel repeatedly and with strong emphasis referred to Bender as a “liar.” Multiple times defense counsel pointed to Bender and called him a “liar.” Like Poole, such an outright and inflammatory accusation, based upon statements lacking inconsistency, could only have been made to prejudice the jury's assessment of Bender's credibility. This goes beyond mere “argument,” as indicated by the Court upon objection by plaintiff's counsel. While wide latitude may be given to counsel in closing, that right is not unfettered. Repeated personal attacks - concurrent and based upon improper impeachment as discussed in Section V. hereinafter - was unduly and prejudicially inflammatory.

Additionally, during closing argument, defense counsel made the inflammatory reference to a “winning lottery ticket.” Defense counsel stated “the plaintiff is attempting to turn a tap on the bumper into a winning lottery ticket.” As concluded by the Schoon, Murphy, and Cruz courts, such a statement can only be made to inflame and improperly prejudice the jury as to the intentions and credibility of Bender.

In his closing argument, the defense counsel made inflammatory statements that were unreasonable and not based on the evidence. The inflammatory statements made by defense council, calling Bender a liar and stating he was “attempting to turn a tap on the bumper into a winning lottery ticket” were improper and meant solely to inflame and arouse the prejudice and passion of the jury as to Bender's credibility. Therefore, a new trial should be granted.

IV. PLAINTIFF SHOULD BE GRANTED A NEW TRIAL DUE TO THE TRIAL COURT'S ERROR IN ALLOWING IRRELEVANT EVIDENCE TO PREJUDICE OR CONFUSE THE JURY OR INFLUENCE ITS VIEW OF RELEVANT EVIDENCE.

A new trial is warranted when irrelevant evidence may have prejudiced or confused the jury or influenced its view of relevant evidence. Templeton v. Chicago & North Western Transportation Co., 257 Ill.App.3d 42, 194 Ill.Dec. 945, 628 N.E.2d 442 (1993).

A. Absent expert testimony, it was improper for defense counsel to argue or even imply that there is a correlation between the extent of Bender's vehicular damage and the extent of his injuries caused by theaccident, as such argument is irrelevant and forces the jury to resort to mere speculation.

It was anticipated the defendants would attempt to show photographs of the minimal damage to Bender's vehicle in an effort to show a minor accident and to refute his claim of damages. Bender made a motion in limine excluding and prohibiting the admission of and any reference to photographs showing the post accident vehicle damage and for any such further relief as this Honorable Court deemed just and proper. The Court granted such motion as the photographs would be irrelevant as the defendant has no expert testimony regarding any such correlation between the damage to Bender's vehicle and his injuries. See DiCosola v. Bowman, 342 Ill.App.3d 530, 536 794 N.E.2d 875, 880 (Ill.App. 2003). See also Baraniak v. Kurby, 371 Ill.App.3d 310, 317 862 N.E.2d 1152, 1158 (Ill.App. 2007). However, the Courtallowed testimony - over objection - of the exact same thing.

In DiCosola, the court affirmed the trial court's decision to require expert testimony to show a correlation between the extent of the vehicular damage and the extent of the plaintiff's injuries. DiCosola, 342 Ill.App.3d at 537. In support of its holding, the court cited the Delaware Supreme Court which held “a party in a vehicular personal injury case generally may not argue that there is a correlation between the extent of the vehicular damage and the extent of a person's injuries caused by the accident in the absence of expert testimony on that issue and may not rely on photographs of the vehicle(s) involved to indirectly accomplish the same purpose.” DiCosola, 342 Ill.App.3d at 537-38 citing Davis v. Maute, 770 A.2d 36 (Del. 2001).

The Davis court reasoned that “absent such expert testimony, any inference by the jury that minimal damage to the plaintiff's car translates into minimal personal injuries to the plaintiff would necessarily amount to unguided speculation.” DiCosola, 342 Ill.App.3d at 537-38 citing Davis, 770 A.2d at 40. Absent expert testimony, it is improper “to argue or even imply that there is a correlation between the extent of vehicular damage and the extent of a person's injuries caused by an accident.” Baraniak, 371 Ill.App.3d at 317-18. InBaraniak, none of the medical expert witnesses testified to a correlation between the plaintiff's vehicular damage and her injuries. Baraniak, 371 Ill.App.3d at 317.

In this case, the trial court excluded the photographs of the vehicle but erred by allowing the defendant to inquire on direct and cross-examination, argue and/or then imply a correlation between the vehicular damage and Mr. Bender's injuries, which indirectly accomplished the same purpose as allowing the jury to view the photographs of the vehicle. Like Baraniak, none of the medical expert witnesses testified to such a correlation and the jury was left to merely speculate as to the validity of any correlation. Additionally, defense counsel, over numerous objections by plaintiff's counsel, used the minimal damage to Bender's vehicle to criticize Dr. Miller's testimony as a medical expert.

During the testimony of Bender and Dr. Miller, and during his closing argument, defense counsel, over numerous and substantial objections by counsel, made many references to the minimal damage of Bender's vehicle to draw a correlation with his injuries. Such references were irrelevant and highly prejudicial as they were made without any expert testimony and did nothing more than allow the jury to speculate as to the validity of any such correlation.

The Court's allowance of the testimony of “light damage” to the vehicle rendered its granting of the Plaintiff's Motion as to the photographs a nullity and non sequitur. Essentially the Court forced the Plaintiff - during trial, and after ruling that DiCosola prohibited such information before the jury - to “choose” his poison, when none of the testimony should have been before the jury as no expert's evidence was provided as to its relevancy. The Court stated that people can testify as to what they observed but not if it causes unsupported speculation as it did here. A witness statement that little damage was done to the vehicle is the same as photographs depicting the same. If the photographs were properly excluded on foundational grounds, the testimony was equally to be excluded. The Court allowed the defendant to do through testimony exactly what it could not do through photographs. Under either scenario, the information was unsupported, speculative and not allowable under Illinois law. DiCosola, 342 Ill.App.3d at 537.

V. PLAINTIFF SHOULD BE GRANTED A NEW TRIAL DUE TO THE IMPROPER IMPEACHMENT OF PLAINTIFF, HAROLD BENDER.

Improper impeachment can serve as the basis for granting a new trial, especially when the jury's verdict depends substantially on whether the jury finds the witness to be credible and the improper impeachment occurs with other improper statements that reflect a persistent effort to prejudice the jury. Lee v. Calfa, 174 Ill. App.3d 101,112-13 (2ndDist. 1988).

A. Defense counsel improperly impeached the plaintiff, Harold Bender, whose credibility was at issue, with prior statements that were not materially inconsistent with his testimony at trial, and such impeachment occurred with other improper statements made in an effort to prejudice the jury.

A prior statement of a witness, in order to be capable of being proved for purposes of impeachment, must be materially inconsistent with his testimony. The test to be applied in determining inconsistency is that the inconsistent statement must have a reasonable tendency to discredit the direct testimony on a material matter. Grabner v. American Airlines, Inc., 81 Ill. App. 3d 894, 899 (1st Dist. 1980). A witness's inability to recall a fact prior to trial, for example, at a deposition, is not inconsistent with his later recall at trial. Grabner, 81 111. App. 3d at 899. In Grabner, the Illinois Court of Appeals concluded that a witness' ability to recall two conversations during his testimony at trial was not inconsistent with his ability to remember only one conversation at the time of his deposition. Grabner, 81 Ill. App. 3d at 899.

During the direct examination of Bender, when asked whether he was diagnosed with carpal tunnel prior to the automobile accident, he stated “I do not recall, but apparently I was.” During cross-examination, defense counsel improperly impeached Bender by referencing a deposition taken in preparation for trial in which Harold replied in the deposition to the same question by only stating “No.” There is no inconsistency between these statements. Bender's inability to recall that fact prior to trial at his deposition is not inconsistent with his later recall at trial. Neither statement was untruthful. Defense counsel spun this alleged inconsistency to mislead the jury into believing Bender was lying under oath on the witness stand. To further compound his improper impeachment and cross-examination, during his closing argument defense counsel repeatedly and with much emphasis improperly referred to Bender as a “liar.”

An improper impeachment based upon statements that are not materially inconsistent, coupled with such outright and inflammatory accusations, could only have been made to prejudice the jury's assessment of Bender's credibility. Therefore, defense counsel improperly influenced and prejudiced the jury as to Bender's credibility.

VI. PLAINTIFF SHOULD BE GRANTED A NEW TRIAL AS DEFENSE COUNSEL'S IMPROPIETIES WHEN TAKEN TOGETHER AS A WHOLE REQUIRE SUCH TO BE GRANTED.

The trial court has the duty to prevent prejudicial conduct at trial and to grant a new trial where such conduct has occurred. Lee, 174 Ill. App. 3d at Ill., Improper argument and misconduct by an attorney is a sufficient basis for the award of a new trial. Lee, 174 Ill. App. 3d at 111.

A. If any one of the complaints set forth above may not alone require reversal, then taken together the complaints establish a pattern of conduct intended to thwart the orderly administration of justice.

In Lee, the court considered some, but not all, of defense counsel's alleged improprieties to determine whether any improper conduct was so prejudicial as to deprive either party of a fair trial. Lee, 174 Ill. App. 3d at 111. The record revealed that defense counsel improperly created prejudicial inferences against plaintiff throughout the trial. Lee, 174 Ill. App. 3d at 111. Counsel accused plaintiff of wanting a “palace,” insinuating plaintiff wanted more than he deserved.Lee, 174 Ill. App. 3d at 112. Defense counsel suggested during cross-examination of the plaintiff that plaintiff's testimony was impeached by prior inconsistent statements, however, such impeachment was incomplete and improper. Lee, 174 Ill. App. 3d at 112. Defense counsel's attempted impeachment was improper since the outcome of the case would be determined by plaintiff's credibility and such impeachment was intended to cause the jury to doubt plaintiff's credibility. Lee, 174 111. App. 3d at 112. The court also noted defense counsel outrageously attacked plaintiff's expert witness during closing argument implying that plaintiff's counsel and its expert conspired to manufacture false testimony. Lee, 174 Ill. App. 3d at 113. The court held “while any one of the complaints set forth above would not alone require reversal, when taken together with defense counsel's outrageous attack on plaintiff's expert witness ... during closing argument, the complaints establish a pattern of conduct intended to thwart the orderly administration of justice. Lee, 174 Ill. App. 3d at 112. In the court's view, “defense counsel's remarks cannot be classified as isolated and inadvertent as they reflect a persistent effort to prejudice the jury. Lee, 174 Ill. App. 3d at113.

Similar to Lee, the conduct in this case by defense counsel also establishes a pattern intended to disrupt the orderly administration of justice. As in Lee, defense counsel improperly impeached Bender. Such impeachment occurred with improper, and inaccurate, statements made in an effort to prejudice the jury and cause them to doubt his credibility.Those improper statements included multiple outbursts by defense counsel during his closing argument when he emphatically referred to Bender as a “liar.” Also, defense counsel consistently referred to the minimal damage to Bender's vehicle in order to improperly draw a correlation between the minimal damage to the vehicle and Bender's injuries resulting from the collision. Defense counsel went so far as to accuse Bender of attempting to turn “a tap on the bumper into a winning lottery ticket,” thus insinuating Bender was demanding more than he deserved.

In addition to defense counsel's persistent effort to prejudice the jury, the trial court, over numerous and substantial objections by plaintiff, allowed defense counsel to imply a correlation existed between minimal damage to Bender's vehicle and his injuries resulting from the accident. Without expert testimony, such an argument was irrelevant as it did nothing more than caused the jury to resort to unguided speculation.

Like Lee, all of these listed improprieties had the cumulative effect of substantially prejudicing the plaintiff, Harold Bender, and depriving him of a fair trial. Therefore, a new trial should be granted for the plaintiff, Harold Bender.

WHEREFORE, Plaintiffs, Harold D. Bender and Jan Bender, requests that this Honorable Court set aside the jury's verdict in favor of the Plaintiff and/or grant Plaintiff a new trial, and grant such other relief as the Court may deem appropriate.

________________, LLC

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