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Automobile Fraud: 10.8.7.4 Questioned Document Examiners

Forgery of documents is a common feature in title-washing and other fraudulent schemes.427 The fact that the consumer’s signature has been forged can sometimes be proven by the consumer’s or other non-expert’s testimony.428 However, expert testimony is often necessary. A forensic document examiner can make all the difference in proving or disproving the authenticity of a document, but there are significant pitfalls that must be avoided.

Automobile Fraud: 10.8.7.5 Other Expert Witnesses

An expert witness is useful for establishing information which a lay jury could not understand on its own. Some attorneys help the trier of fact understand the transaction by starting the trial with an expert witness who has examined the transaction and can explain the economic and personal dynamics of the fraud. This testimony helps the trier of fact see the victim’s weaknesses and vulnerabilities in the context of the fraud.

Automobile Fraud: 10.8.7.7 Witnesses Who Have Received Use Immunity for Previous Testimony

As there are potential criminal penalties for many types of automobile fraud, it is not uncommon for a civil case to be preceded by a criminal prosecution. If a witness has been granted use immunity for testimony in a criminal prosecution, that testimony can still be used against that witness in a later civil case.470 The immunized testimony can be admitted even if the civil case seeks penalties under state or federal odometer statutes or state UDAP statutes, because such penalties are civil and remedial rather than criminal.

Automobile Fraud: 10.8.7.8 Defendants’ Assertion of Fifth Amendment Privilege

As many types of automobile fraud carry criminal penalties, defendants and witnesses may wish to assert their Fifth Amendment right not to incriminate themselves. The privilege against self-incrimination applies to civil cases.471 In contrast to criminal cases, however, in a civil case there is no constitutional bar against drawing an adverse inference from a witness’s invocation of the privilege against self-incrimination.472

Automobile Fraud: 10.8.8.2 Summary Title History Reports

A summary title history report from a commercial service that summarizes title information it compiles from many jurisdictions may be admissible under the jurisdiction’s business record rule, but only after considerable proof of the accuracy of the underlying data and the manner of collecting, compiling, and reporting it.500 It might also be possible to introduce the report after presenting expert testimony that it is a “market quotation, tabulation, list, directory, or other published compilation” that is generally used and relied upon by

Automobile Fraud: 10.8.8.4 Simplifying Admission of Documentary Evidence

Out-of-state business records or statements from out-of-state witnesses are frequently essential to establishing high mileage or original wreck damage on vehicles. Even if witnesses are in-state, they may be reluctant to come to court to testify, and deposing them adds to the expense of the case.

Automobile Fraud: 10.9.1 Preparing for Jury Trial

Most attorneys who handle automobile fraud cases agree that, given a choice, the case is best presented to a jury rather than a judge or arbitrator.521 While judges and arbitrators have sometimes awarded substantial damages in automobile fraud cases, juries are more likely to empathize with the victim of automobile fraud. There is also general agreement on the importance of keeping the case simple and the themes clear. Technical or trivial claims should be avoided.

Automobile Fraud: 10.9.2 Motions in Limine

Experienced trial attorneys emphasize the importance of thinking carefully before trial about evidence and arguments that the opposing side may offer during trial. Much of this evidence and argument may be improper, unduly prejudicial, or confusing. Severe prejudice can often be caused by the mere mention of such matter in front of the jury, regardless of whether an objection to the matter is sustained.

Automobile Fraud: 10.9.3 Voir Dire

In jurisdictions where the attorneys conduct voir dire, the attorney should ask questions that require all the jurors to respond, and that encourage the jurors to respond often. The goal is to engage the jury and get an active exchange going.

Automobile Fraud: 10.9.4 Conduct of the Trial

Jurors can be surprisingly attentive during trial. They are attuned not only to nuances in the witnesses’ expression and demeanor but also to the appearance and manner of the parties and the parties’ attorneys and staff, both inside and outside the courtroom. The jury is likely to notice if one attorney appears disorganized or less confident, for example. In this vein it is a healthy practice to consistently display respect to the judge, the courtroom staff, the opposing attorney and staff, and to all witnesses and even the opposing party.

Automobile Fraud: 10.9.9 Arguing for Punitive Damages

Crafting arguments for punitive damages requires careful planning. Assuming that the facts have been marshalled that will justify punitive damages, the following are some arguments that can be effective.

What award will achieve the three purposes of punitive damages? Most jurisdictions recognize three main purposes behind punitive damages, all of which focus entirely on the defendant’s conduct:

Automobile Fraud: 10.9.10 Helping Fraud Victims Prepare to Testify

Fraud victims often are naive and have low self-esteem—that is why they were easy prey. In many cases they are helpful, cooperative people who like to please others and are easily manipulated, both in a sales situation and on cross-examination. The consumer lawyer’s job is to help such victims present their stories to a judge or jury, without collapsing on cross-examination.

Automobile Fraud: 10.9.5 Opening Statements

The opening statement is a chance to tell a good story, and consumer cases almost always make great stories. In the opening statement the consumer’s attorney should tell the jury what the evidence will show and what the witnesses will say, describing the story in the most persuasive terms. A lively, non-legalistic, somewhat dramatic presentation will be engaging for the jury. The opening statement should be imbued with the trial themes that the advocate has developed, and the advocate should return to those themes in closing argument.

Automobile Fraud: 10.9.7 Order of Witnesses

In presenting an automobile fraud case, remember that jurors remember best what they hear first and last. The consumer’s case should start and end with strong witnesses.

Automobile Fraud: 10.9.11 Defense Attempts to Limit Use of the Word “Lemon”

Defense attorneys occasionally file motions in limine asking the trial court to prohibit the use of the word lemon at trial, on the ground that the term is inflammatory and prejudicial. This specious argument is countered by the fact that the term lemon to describe a defective vehicle is found in most dictionaries549 and is used in many state statutes.550 Many state attorney general offices and consumer protection agencies distribute consumer education pamphlets using this term.

Automobile Fraud: 10.9.13 Closing Arguments

Closing argument is one of the most critical stages of trial. Entire books have been written on the subject of closing argument, so the following is only a selection of some of the fundamental points that should be covered in almost any closing argument:

Automobile Fraud: 10.10.1.1 Benefit of the Bargain Versus Out-of-Pocket Damages

Automobile fraud cases raise claims under tort law (primarily common law fraud claims) and contract law (primarily warranty claims), which have well-developed and quite similar measures of damages.566 In addition, most automobile fraud cases raise claims under various statutes, such as state deceptive practices (UDAP) statutes and federal and state odometer laws. These statutes generally do not set forth any particular measure of actual damages, so the courts borrow from contract or tort law.