McDivitt Wins Appeal For Client Because We Don’t Give Up

Our commitment to our clients means that we fight for their rights and take every measure possible to deliver the results they deserve. Although we can often bypass a jury trial to negotiate a fair settlement for our clients out of court, there are times where the fight must go on. McDivitt attorneys are not afraid to go to trial or to appeal an unjust decision. In some unique cases, our attorneys have had the opportunity to change or clarify the law for the benefit of not only our client but the future of accident victims.

In a recent case Attorney Edward Lomena successfully appealed an unjust trial verdict and brought much needed clarification to laws about whether witness statements contained in a traffic accident report are automatically admissible at trial.

The Trial

A McDivitt client was injured in an automobile accident caused by someone who claimed to suffer a medical emergency at the time of the collision. The at-fault driver’s legal defense was that their client wasn’t negligent, but rather the medical emergency was to blame for accident.

At the center of the Defense’s argument was a statement given to the investigating officer at the scene of the crash. The witness stated that the at-fault driver stiffened up and fell to the right, looking like they were having a heart attack. At the time, the police officer did not collect any identifying information from the witness including name, address, phone number, or sex.

Before the trial proceeded, Attorney Ed Lomena moved to prevent the witness statement from being a part of the trial as it was inadmissible hearsay and not a credible piece of evidence. The Trial Court Erroneously ruled that C.R.S. 42-2-121(2) (c)(II) allows automatic admission of a hearsay statement within a traffic accident report.

Based solely on the unidentified witness statement the jury returned a defense verdict, relieving the at-fault driver from liability.

The Appeal

The McDivitt team was not satisfied with the outcome of the jury trial and felt it was necessary to request a new trial on the ground that the Trial Court misinterpreted C.R.S. 42-2-121(2) (c) (II).

Lomena argued that the statements within a traffic accident are hearsay and must meet their own hearsay exception to be admitted at trial. The Court of Appeals agreed with this argument and ordered a new trial with the exclusion of the original witness’ statement.

The New Trial

Our client and their McDivitt legal team now have an opportunity to go back to trial and continue the fight for justice. With the exclusion of the testimony in the police report, Attorney Lomena believes our client will have a fair shake at victory for their rights.

Please check back in as we will update this blog when the new trial moves forward.

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