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The use of vehicle photographs that show minor damage to the plaintiff’s car is convincing evidence that most jurors find persuasive on the issue of whether the plaintiff was injured in the accident. Chicago injury attorneys have therefore attempted to avoid the admissions of these photographs wherever possible. In days gone by vehicle photographs were usually admitted in minor impact cases without the need for any additional foundational testimony from an expert.
In 2003 the Illinois Supreme Court held that defendants must have expert testimony when they sought to admit evidence of light impact photographs of the plaintiff’s vehicle depicting little or no damage. Following that decision the Cook County Circuit Court held that, absent expert testimony, the evidence was not relevant, and therefore, inadmissible to show that a correlation existed between the amount of damage to plaintiff’s vehicle and the extent of the plaintiff’s injuries. In affirming the Circuit Court, the Appellate Court dismissed the concept that there was a bright line rule regarding the relevancy and admissibility of vehicle photos to show a person’s lack of injury.
The case encouraged plaintiff’s attorneys in their efforts to deny defendants the use of vehicle photos yet their success has been limited and the trend is to allow the use of photos without expert testimony. In short courts have held that a lay juror can readily assess their relationship, if any, without expert interpretation.What plaintiff’s attorneys overlooked was that keeping photos of slight impacts from the eyes of jurors did the same for photos of heavy impacts.
The common thread among all of the cases dealing with this issue is that the trial court maintains wide discretion in admitting these photographs. The standard that they will employ is the time honored standard for the admission of relevant evidence which is now codified in Illinois in Supreme Court Rule 401 which states:
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. IRE 401.
In making this determination, the courts tend to focus on the particular issues in the case. For example, if a plaintiff testifies that the accident was severe and that they were thrown around the vehicle violently, but the photographs show only minor scrapes to that plaintiff’s back bumper, a trial court is more likely to allow this evidence to rebut the lay testimony of the plaintiff.
The simplest way to at least have the photographs admitted is to offer them for the purpose of contesting liability. In almost every case, the defendant driver’s version of how the accident took place will differ from the plaintiff’s. If there is any basis to contest liability, no matter how slight, this should be factored in as an additional theory of relevance for the photographs. If the photographs are admitted and the plaintiff still objects and seeks an instruction from the court to limit the use of the photographs by the jury only on the issue of liability, that plaintiff runs the risk of over emphasizing the overall importance of the photographs to all issues in the case. Similar to asking someone to close their eyes and not think about a white elephant.
Another strategy developed by defense counsel for the admission of the vehicle photographs without expert testimony is to use them to rebut the testimony of a plaintiff regarding how the accident took place.
Finally, if a defense attorney suspects that a trial court is against the use of photos without expert testimony to correlate the relevancy of the minor damage to the plaintiff’s injury, a defense attorney may attempt to utilize these photos in the plaintiff’s own treating physicians’ evidence deposition as a means to contradict the basis of that physician’s opinion. Often times plaintiffs will tell the same exaggerated version of the accident to their treating physician or chiropractor and that will be relied upon by the physician or chiropractor as a basis in formulating their causation opinions. Showing photographs to these physicians of the lack of damage to the vehicle may cause the physician to alter their causation opinions or at the very least, indicate that the photographs contradict the plaintiff’s version of the accident.
So the conundrum remains unchanged as Chicago injury attorneys continue in their efforts to manipulate the system