I always dictate a MIL as to any deposition as soon as I get the transcript. It beats a load of Motions to dictate as you get closer to trial, and by working on them when the deposition is fresh, can address a bit more. Same goes for evidentiary issues that arise in documents.
Well, here goes and let me know if these help:
FINANCIAL CONSEQUENCES OF JUDGMENT AGAINST DEFENDANT. Any reference or suggestion that Defendant is uninsured as to Plaintiff's claims, including, but not limited to, any reference as to Defendant as a little person, or small or struggling, or any other such reference which would tend to convey to the jury the impression that Defendant is a party of modest means who cannot afford to pay a substantial judgment. See O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508, (1989); Denton v. Conway Express, Inc., 261 Ga. 41 (1991); Georgia Power Company v. Flagan, 261 Ga. 41 (1991); Northwestern University v. Crisp, 211 Ga. 636, 641 (1955); Brunswick & Western Railroad Co. v. Wiggins, 113 Ga. 842, 850 (1901); Higgins v. The Cherokee Railroad, 73 Ga., 149 (3) (1984); Bennett v. Haley, 132 Ga. App. 512, 525 (1974); See also Georgia State Bar Rules, DR 7-102(A)(3), (4) and (5); DR 7-106(C) (1); Rule 4-102(d) Standard 45 and O.C.G.A. § 9-10-185.
PLAINTIFF'S USE OF AWARD. Any reference or suggestion as to what Plaintiff will or might do with any award of damages Plaintiff might receive. See O.C.G.A. §24-2-1 and §24-2-2; Gusky v. Candler General Hospital, 192 Ga. App. 521 (3) (1989). See also Hall v. Chicago & Northwestern Railway Co., 125 N.E.2d 77, 86 (Ill.1955); and Law note at 28 ATLA Law Reporter 101 (April 1985).
MONEY WILL NOT UNDO DAMAGE. Any reference or suggestion to the effect that "money won't undo the injury and damage the plaintiff may have sustained", because such a suggestion is an improper appeal for jury sympathy toward Defendant. and invites the jury to disregard it's duty to apply the legal measure of damages which the evidence shows have been caused by Defendant's misconduct and instead to base a verdict on improper considerations. See O.C.G.A. §24-2-1; Gielow v. Strickland, 185 Ga. App. 85, 86 (1987) (jury cannot be urged to use some other measure of damages than that prescribed by law); Central of Georgia Railway v. Swindle, 260 Ga. 685, 687 (1990) (trial should not be invaded by improper considerations); Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989) (effect of verdict an improper consideration).
DEFENDANT IS “SORRY” OR “APOLOGIZES.” Any reference or suggestion that Defendant is sorry or regrets the occurrence in question, because such a suggestion is an improper appeal for jury sympathy toward Defendant, and invites the jury to disregard it's duty to apply the legal measure of damages by awarding such damages as the evidence shows have been caused by such defendant's misconduct and base a verdict on improper considerations. O.C.G.A. §24-2-1; Adams v. Camp Harmony Association, 190 Ga. App. 506, 508 (1989); Gielow v. Strickland, 185 Ga. App. 85, 86 (1987) (jury cannot be urged to use some other measure of damages than that prescribed by law); Central of Georgia Railway v. Swindle, 260 Ga. 685, 687 (1990) (trial should not be invaded by improper considerations).
TAXATION OF RECOVERY. Any reference or suggestion that any recovery by Plaintiff either would or would not be subject to federal or state income tax or any other form of taxation. See O.C.G.A. §24-2-1. Also, that any recovery by Plaintiff would not be subject to federal income taxation or any other form of taxation. Atlantic Coast Line R. Co. v. Brown, 93 GA. App. 805, 807 (1956).
EMPLOYMENT OF COUNSEL/FEES. Any reference or suggestion regarding the time or circumstances under which Plaintiff employed any of her attorneys. O.C.G.A. §24-9-21(2). Any reference or suggestion regarding the existence of a contingent fee arrangement between Plaintiff and her counsel. See O.C.G.A. §24-2-1; Stoner v. Eden, 199 Ga. App. 135 (1991).
FAILURE TO CALL EQUALLY AVAILABLE WITNESSES. Any reference or suggestion that Plaintiff has not called to testify any witness equally available to both parties in this case. See O.C.G.A. § 24-4-22; Bank of Emmanuel v. Smith, 32 Ga. App. 606 (1924); Bradford v. Parrish, 111 Ga. App. 167 (1965).
VOUCHING FOR DEFENSE WITNESSES. Any reference or suggestion as to whether or not Plaintiff or any of Plaintiff's witnesses believe that any of the defense witnesses are honorable or otherwise worthy of belief. O.C.G.A. §24-2-1.
PERSONAL BELIEF OF COUNSEL. Any reference or suggestion by defense counsel as to his or her personal belief concerning the credibility of any witnesses, or as to the merits of Plaintiff's claims, injuries, or damages. Manning v. State, 123 Ga. App. 844, 845-6 (6) (1971); Georgia State Bar Rules, DR 7-106 (C) (4); EC 7-24.
FUTURE INCOME, ETC. OF PLAINTIFF. Any reference or suggestion as to the future income or employment benefits of Plaintiff.
UNDISCLOSED PHOTOGRAPHS. Any reference or suggestion as to the existence or contents of any document, photograph, motion picture film or videotape which has not previously been disclosed in the pretrial order until the same has been tendered to the Court and Plaintiff's counsel, outside the presence of the jury, and shown or exhibited to determine its relevance and suitability for introduction into evidence. See O.C.G.A. §24-2-
EFFECT OF CLAIMS ON INSURANCE RATES. Any reference or suggestion regarding the effect or results of a claim, suit of judgment upon insurance rates, premiums, or charges, either generally or as particularly applied to Defendant in this case as a result of this or any other lawsuit or claim. See O.C.G.A. §24-2-1 and §24-2-2.
EFFECT OF CLAIMS ON INDUSTRY. Any reference or suggestion that damage awards may drive up the price of products, put manufacturers out of business, or cause jobs to be lost. See O.C.G.A. §24-2-1 and 24-2-2.
REQUESTS FOR PLAINTIFF'S FILE MATERIALS. Any demands or requests by defense counsel before the jury for matters found or contained in Plaintiff's or her counsel's files, which would include statements, pleadings, photographs, and other documents directed to the Plaintiff or Plaintiff's counsel during the course of the trial and in the presence of the jury.
REQUESTS FOR PHYSICAL DEMONSTRATIONS. Any requests for Plaintiff or any of Plaintiff's witnesses to participate in or assist defense counsel with any physical or other demonstration. See O.C.G.A. §24-2-1.
SUPERSEDED PLEADINGS. Any reference or suggestion as to the contents of any pleadings which have been superseded by the current pleadings or the pretrial order on file in this case.
EX PARTE STATEMENTS. Any reference or suggestion as to the contents of, or tender of any ex parte statement or report of any person not then and there present in the Court to testify and to be cross-examined by counsel for Plaintiff.
NOTICE TO DEFENDANT OF SUIT. Any reference or suggestion that no notice of the claim was given to Defendant(s) until the suit was filed in this case, since none is required to be given.
SPECIAL EFFORTS REQUIRED BY JURY. Any reference or suggestion that the jury must extend special efforts to be fair and impartial to the defendant.
SEAT BELTS. Any reference or suggestion that Plaintiff may not have been wearing a seat belt at the time of the collision made the basis of this suit. O.C.G.A. §40-8-76.2.
PRIOR TRAFFIC RECORD. Any reference or suggestion as to any prior moving traffic violations or any prior automobile collisions that Plaintiff may have had in the past. See O.C.G.A. §24-2-1 and 24-2-2; Myers v. Barnard, 180 Ga. App. 192 (1986); Underwood v. Butler, 166 Ga. App 527, 529 (1983). See also Green, Georgia Law of Evidence, 3rd Ed., §§68, 70 and 71 (Harrison Co., 1991 Supp.).
CRIMES INVOLVING FIRST OFFENDER STATUS. Any reference or suggestion as to any crimes involving first offender status. O.C.G.A. § 42-8-65(a) obligates the clerk to ensure that such information is disclosed only to those persons authorized to receive it. Witcher v. Pender, 260 Ga. 248 June 8, 1990, held that the first offender record of an adverse witness in a civil case is not admissible for the purpose of impeaching the witness for a crime of moral turpitude. In Georgia, the rule is that a witness may be impeached by proof of a conviction of a crime involving moral turpitude. Hall v. Hall, 261 Ga. 181 (402 S.E. 2d 726)(1991).
The use of the term moral turpitude has been "restricted to the gravest offenses consisting of felonies, infamous crimes and those that are malum in se and disclose a depraved mind", Lewis v. State, 243 Ga. 443, 444 (254 S.E. 2d 830)(1979). Under that definition it is apparent that a misdemeanor conviction for possession of less than an ounce of marijuana, a conviction equivalent to a misdemeanor conviction for DUI. See Hall v. Hall supra, it is not a crime of moral turpitude. It does not suggest an "insensibility to the obligation of an oath". Lewis supra, at 446.
CRIMES NOT INVOLVING MORAL TURPITUDE. Any reference or suggestion as to any crime by the plaintiff that does not involve moral turpitude. "In Georgia, the rule is that a witness may be impeached by proof of a conviction of any crime involving moral turpitude. Said to be restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind Lewis v. State, 243 Ga. 443, 444 (1979).
MUST HAVE CERTIFIED RECORDS OF PRIOR CONVICTION, IF ANY Any reference or suggestion as to any crime by the plaintiff that defense does not have certified copies of the convictions. A witness may be impeached by the “properly authenticated copy of his conviction”, not by his own admission in a deposition or testimony that he entered a pleas of guilty. Business Resources, Inc. v. General Amusements, Inc., 186 Ga. App. 185 (1988).
DUI. Any reference or suggestion as to any crime of DUI by the plaintiff. A misdemeanor conviction for DUI is not a crime of moral turpitude and therefore cannot be used for impeachment. Hall v. Hall, 261 Ga. 188 (April 11, 1991). See Agnor's Georgia Evidence (2nd Edition) Section 5-8 (1986).
LIVING TOGETHER OUT OF WEDLOCK. Any reference or suggestion that the plaintiff is or has ever lived with someone out of wedlock.
MED-PAY OFFSET FROM VERDICT. Any reference or suggestion that the collateral sources which plaintiff has received including med-pay benefits should be offset from the jury's verdict. Plaintiff intends to offer paid medical bills for the limited purpose of showing the extent of the injuries. There may exist a right of reimbursement or subrogation for any paid bills. The law is clear in that the Plaintiff is not entitled to a double recovery.
The approved way to prevent such double payment is by consent at pretrial, or in the event of contest, by presenting the facts showing such coverage and payment to the Court outside the presence of the jury. Powell v. Manning, 242 Ga. 778, 780 (251 SE2d 522) (1979). If evidence of such damages is introduced for the purpose of proving the extent of injuries, the Court should then charge the jury to exclude consideration of such evidence on the issue of damages. Walls v. Parker, 146 Ga. App. 882, 883 (247 SE2d 556)(1978). McDaniel v. Gysel, 155 Ga. App. 111, 112 (5) (270 SE2d 469)(1980).
DISORDERLY CONDUCT. Any reference or suggestion as to any crime of disorderly conduct. Disorderly conduct is a misdemeanor and is not a crime of moral turpitude.
BIRTH OF CHILDREN. Any reference or suggestion as to the birth of any of plaintiff's children out of wedlock or the fact that plaintiff's children may have different fathers.
ACCIDENT CHARGE. Any reference or suggestion by the defense on the “accident” in this case. Tolbert v. Duckworth, and Shelton v. Smith, 262 Ga. 622, (November 23, 1992) Georgia Supreme Court. The Georgia Supreme Court has eliminated the jury instruction on accident as a defense in civil cases agreeing with the jurisdictions that have repudiated the use of the accident instruction in all civil cases as unnecessary, misleading and confusing.
EVIDENCE AND TESTIMONY. Any reference or suggestion to any evidence or testimony not revealed in defendants' discovery responses. Such evidence would be unfairly prejudicial to the plaintiffs' case. All such evidence should have been disclosed to the plaintiffs during discovery.
OTHER INJURIES: Plaintiffs moves that the Court exclude any claim, argument or other statement that any prior or subsequent claims and injuries of Plaintiff are related to the injuries now at issue, unless such contention is first established by testimony of someone having sufficient and appropriate medical training and supported by medical records. Such argument cannot be made without first providing medical proof as to such causation. It is clear that neither a witness nor lawyer without any medical training can give such an unsupported opinion. See Eberhart v. Morris Brown College, 181 Ga. App. 516, at 518 & 519 (1987); Thomason v. Willingham, 118 Ga. App. 821, 165 S.E. 2d 865 (1968).
Plaintiff moves that any such argument or statement of counsel be excluded unless and until such causation is established at trial through testimony of a qualified medical expert. This motion by plaintiffs prevents or precludes defense counsel from arguing that the March 1995 automobile collision caused or aggravated any of Mr. Jenkins’ injuries. Without medical support, such argument would permit defense counsel to improperly insinuate injury without testimony or other evidence.
FILING THIS MOTION. Any reference or suggestion that this Motion has been presented to or ruled upon by the Court. Plaintiff moves that Defendant's counsel is instructed not to suggest to the jury, directly or indirectly, that Plaintiff has sought to exclude any matters to this suit.
DOCUMENTS NOT PREVIOUSLY ADDRESSED IN PRE-TRIAL ORDER. That should the Defendants wish to introduce any document, writing, photograph or motion picture or video tape or the like, not previously addressed by the pre-trial order, into evidence, that the same be tendered to the Court and opposing counsel, outside the presence of the jury, and shown or exhibited to determine its relevance and suitability for introduction into evidence prior to and before informing the jury as to its existence or its tender into evidence by the defendants.