Thursday, December 22, 2011

Schrenker v. State, 919 N.E.2d 1188 (Ind. Ct. App. 2010)

In Schrenker v. State, Michelle Schrenker and her husband Marcus were the subjects of an action by the Indiana Securities Commissioner.  Marcus Schrenker was registered as an investment advisor with the Indiana Securities Division, and he and Michelle were principals in investment firms called Heritage Wealth Management (HWM), Heritage Insurance Services (HIS), and Icon Wealth Management (Icon).  The offices were leased to both Marcus and Michelle, and Michelle kept the books and was chief financial officer (CFO) for the three firms. She was paid $ 11,600 monthly, and the State asserts she “did not consider her position as CFO to be simply a title”  She was the majority shareholder and a director of HWM.  She handled the books, recordkeeping, and accounting for HWM and Icon, and had the authority to write checks and withdraw money from the HIS account.
The Indiana Securities Commissioner sought the appointment of a receiver over Michelle Schrenker’s assets.  The trial court granted the appointment.  The appointment was premised on the trial court’s conclusion that the advisor materially aided her husband and his corporations in violating the Indiana Securities Act and she was jointly and severally liable with and to the same extent as her husband and his companies by virtue of her position as Chief Financial Officer of three companies.   The advisor had access to one of the company’s checking account.  There was a substantial casual connection between the advisor’s culpable conduct, in the form of withdrawing investor funds from one company account, and the harm the investors suffered in the form of lost money.  She materially aided her husband in violating the Securities Act.  The appellate court affirmed the trial courts appointment of the receiver stating that it did not abuse its discretion.

Monday, December 12, 2011

Police Report and Officer Testimony Admissibility in Indiana

Whenever you are involved in a truck accident a police report is typically created by an investigating officer. This report is made by an officer who is only at the scene after the accident occurs. He or she interviews witnesses, takes down information about the accident itself, and may or may not make a conclusion as to who caused the accident and/or issue a citation to the person that he or she concludes was at fault.

As you can imagine, the conclusions of a police officer as to who caused an accident can be quite persuasive to a jury, convincing them a defendant caused the accident, or conversely that it was plaintiff’s fault and he or she should not receive damages from the defendant. Therefore, there is often litigation concerning whether the police report, the conclusions it draws, and the investigating officer’s testimony, are admissible evidence in a truck accident lawsuit, and what each side argues is typically related to who the officer says caused the accident.

Investigative Reports by Police and Law Enforcement Personnel Are Hearsay

Although a general exception to Indiana’s hearsay rule is for public records and reports Indiana Rule of Evidence 803(8)(a) makes an exception to the exception, declaring that “investigative reports by police and other law enforcement personnel” are still hearsay. That means that these accident reports, and the evidence they contain, are typically not admissible into evidence in Indiana.

However, the investigative officer is often called to testify in car and truck accident lawsuits, meaning that there are typically some parts of the officer’s testimony which are admissible. Below are some examples of the types of things an officer can testify about, and what he cannot. What follows discusses some general rules of law, but there are always exceptions and factual distinctions between cases which could result in a different outcome. This is especially true in evidentiary law, some of which is based on the discretion of the court regarding the issue of undue prejudice, which is why an experienced truck accident attorney should be consulted.

Officer Can Testify As To Observations He or She Made At Accident Scene but Generally Not the Cause of the Accident If They Didn’t Observe It Personally

One of the reasons courts have given for not allowing an officer to testify about the issue of causation, i.e., who caused an accident, is because they did not typically observe the accident themselves. Typically, investigative officers come to the scene of the accident only after it has occurred, and rely on eye witness statements to make their conclusions. That is exactly what a jury is supposed to do, so since they didn’t actually see it themselves police officers aren’t generally allowed to share their conclusion about who caused the accident, or how the accident occurred.

On the other hand, an investigating officer is often asked to testify about what he did observe at the scene of the accident as a neutral third party. This can include the position of the vehicles and other post-accident information. In addition, there may be questions about observations the officer made of the injured parties, and what they said about how they felt right after the accident, such as any complaints of pain and in what areas of their body.

Often statements of the witnesses are considered hearsay, and the officer cannot testify about them. However, there are quite a number of exceptions to this hearsay rule, and if one applies an officer may testify as to those statements too. One of the most common of these include when a person admits fault for an accident. Since this an admission against interest, and a statement by a party opponent, it is not considered hearsay at all and an officer can testify about what a party said on this subject.

Sometimes Police Officers Can Be Qualified As an Expert and Provide Conclusions about Causation

There is one exception, when an officer is qualified as an expert witness, when he or she is able to testify as to his or her conclusions about who caused the accident. Typically, the court will consider the officer’s years of experience and any training he has had in accident reconstruction in determining whether he can be qualified, and it is in no way guaranteed that all officers will qualify.

If a police officer does qualify as an expert witness he can provide opinions as to the ultimate issue of fact before the jury – who caused the accident. Typically, the opinions of the police officer as an expert cannot be based solely on witness statements, because a jury can decide based on those statements without a police officer’s opinion. Instead, the police officer’s expert opinion must be based on more, such as his own observations at the accident scene, such as by examining the skid marks, the weather and light conditions right after the accident, etc. This information, plus his knowledge of accident reconstruction, can allow in some instances for him to testify as to who he believed caused the accident to occur.

Friday, December 9, 2011

The Importance of Evidence in the “Black Box” For Truck Accident Litigation

Often in truck accidents there is a lot of conflicting testimony between the truck driver’s version of events and that of the injured person regarding such important issues as speed, acceleration and braking. Some of this conflict may come from a bias of protecting one’s own interests, but in addition these accidents often happen so quickly, and so many things happen in quick succession that it can be difficult to accurately remember or even notice all relevant pieces of information.

That is where a heavy truck’s Event Data Recorder (known in the industry as an “EDR”), and often commonly referred to as a “black box” can be very useful. This piece of electronic equipment, while not required by law to be present in all vehicles, at this time, often is present and can be very helpful in accident reconstruction.

The Types of Data That May Be Recorded in a Truck’s EDR That Help in Accident Reconstruction

There are many types of EDRs, and therefore they do not all record exactly the same type of information in exactly the same manner, although NHTSA (National Highway Traffic Safety Administration) does have some standards and rulings for these recording devices.

Some of the types of data that an EDR may record, and which may be helpful for accident reconstruction, include the following:

  • Speed
  • Acceleration rate
  • Engine revolutions per minute (RPMs)
  • Gear selection and/or clutch application
  • Engine malfunction information
  • Airbag deployment information
  • Measured changes in forward velocity (Delta-V)
  • Engine throttle
  • Brake application
  • Steering angle
  • Whether seatbelts were on or off
  • Sudden stops
  • Low oil pressure
  • Coolant loss
  • Cruise control status
  • Fuel economy
  • Idle time
  • Average travel speeds
Passenger Vehicles Often Have an EDR Too
Not only do many heavy trucks have these black boxes, but often many passenger vehicles may have them as well. Typically, but not always, these EDRs record less information than those within heavy trucks, but still tend to include information used to calculate airbag deployment and seat belt tensioner calculations, for example.

Just as attorneys for injured victims in truck accidents may request the information from an EDR, so too can plaintiffs receive requests to have their data downloaded and analyzed. It can be important for injured parties to have legal representation in such instances to determine what is, and is not, relevant and admissible evidence and what must be provided during discovery.

Expert Testimony Necessary to Interpret and Present This Evidence in Court

The information contained in the black boxes can be used for accident reconstruction, and it is typically downloaded directly from the vehicle(s) involved in the accident soon after the accident occurs. It is important to make sure you obtain legal representation as soon as reasonably possible after an accident occurs to make sure all relevant data is downloaded before it becomes unavailable, lost or destroyed.

Once the information is downloaded into a report it must be analyzed and interpreted by an expert in accident reconstruction to understand what the data means, and to draw conclusions about how the accident occurred (and potentially why it occurred). An experienced truck accident attorney will be able to contact such experts to evaluate the data involved in your case.

Courts often hold that this EDR data is generally accepted and reliable, which meets the requirements for its admission into evidence. However, there are often legal arguments on both sides regarding what the expert can, and cannot say, in regard to conclusions based on the data retrieved. This requires an understanding of evidentiary law, as it relates to expert testimony, to determine which conclusions are appropriate for a jury to hear from an expert.