Personally, I find it a little odd when car accident victims swear at the at-fault driver after an accident. I know people cause car accidents and I don’t have great expectations of those strangers.
But that is a minority view. The f-bomb is de jure at car accident scenes in Maryland (and, road rage statistics tell us, probably in every town from here to Tripoli).
Johnson v. Downing Facts
In Johnson v. Downing, federal District Court Judge Ellen L. Hollander weighed in on the admissibility of heated conversations between drivers after the accident. Our lawyers do not see many Maryland car accidents in U.S. District Court. But I assume this case involves an out-of-state plaintiff and an accident in a jurisdiction that is not historically a bed of roses for victims. So it makes sense for the attorney in these types of cases to take advantage of diversity jurisdiction and file in federal court.
Plaintiff’s auto accident attorney filed a smart motion in limine to bar testimony at trial that the Plaintiff was cursing at the scene of the accident. This is good lawyering, right? The jury is far less likely to like a plaintiff who is cursing at the scene of the accident. Should have much a jury likes that plaintiff have and impact on its award? No. But it does. A jury might also conclude that the person who overreacts to the happening of an accident might excessively complain about her injuries.
Okay, so what did he reportedly say?
The defendant testified that the plaintiff was “visibly upset” at the scene and said: “What the f-u-c-k were you doing[?]” Defendant further testified that, in response, he told the plaintiff to “watch [his] mouth,” because the defendant’s young child was in the defendant’s car. To that comment, plaintiff allegedly responded: “I don’t give a f-u-c-k about your son.” At his deposition, plaintiff claimed that, at the scene, he merely exchanged insurance information with the defendant.
It is not a leap to think this would prejudice a jury. I’m now prejudiced. Because I have a hard time believing that anyone who would say all of that, particularly the second line, is likely to be a good person having a bad day. I mean, it could be… But probably not. So you listen to the F-bombs this plaintiff was throwing out in this case and it does not get you thinking this is a great person you want to give a money award.
I always tell my client the best impression to leave the jury with is that you have malice towards no one. The best image for the jury is a life that is like a box of chocolates except for the car crash.
Defense Argument in Johnson v. Downing
The defendant’s lawyer argued that this is a leap that the jury can and should be able to make because it “speaks to the nature and extent of Plaintiff’s damages.” Not a great argument, but it is the best one the insurance company’s lawyer had. Defendant’s lawyer also threw out what is even more of a reach: the F-bombs after a car accident reveal the plaintiff’s “state of mind, motivation, and intention in bringing this instant lawsuit.” So, the argument goes, that he was mad underscores he is faking his injuries and filing a revenge lawsuit. That is just dumb. (Yet I’ll admit it would probably impact my damage award if I were a juror.)
Judge Hollander’s Opinion
Judge Hollander found that testimony on this was “wholly irrelevant and immaterial to the issues of causation and damages” and that, even if relevant, the potential of unfair prejudice to the plaintiff would outweigh the probative value of the claim.
In the immediate aftermath of a vehicular accident, it is not entirely unusual for someone involved in an accident to become upset or agitated. Even assuming that plaintiff cursed, as defendant contends, and recognizing that such conduct is certainly impolite, plaintiff is not on trial for the appropriateness of his conduct or his demeanor at the scene. Moreover, it is clear from the defendant’s version of events that the plaintiff did not engage in the protracted use of profanity. To the contrary, the defendant attributes two sentences to the plaintiff, each containing one curse word. Nor is it clear from the defendant’s deposition testimony that plaintiff even realized that the defendant’s young son was in the car when the plaintiff stood at the driver’s window. Perhaps most important, there is absolutely no basis for the defendant’s claim that the profane comments are relevant to show plaintiff’s motive in fabricating his claim of personal injuries, in retaliation for damage to plaintiff’s historic vehicle.