In some personal injury car crash cases, the defendant driver is a "no show" for their deposition, discovery and even trial ! This can happen even where the sheriff has properly served the negligent defendant with the lawsuit papers and they are ordered to answer. This happened at a recent trial the ABRAMS LANDAU trial team tried to a jury verdict in Northern Virginia on behalf of an innocent car crash victim.
In these instances where the defendant does not show up, the car crash victim and their attorney are at a disadvantage without the defendant present to testify. As a matter of law, witness testimony is considered evidence, and your attorney’s arguments are bound by the evidence presented in court. This means that he or she cannot speculate in closing as to what the defendant would or could have said. However, the defendant’s absence can also work to your advantage, because he or she will not be able to challenge your testimony. While this certainly never permits you to lie on the stand, it is important to keep in mind that unless eyewitnesses are also present, yours will be the only account of the accident available to the jury. It is therefore important that you be as clear and as thorough as possible in explaining both your and the defendant’s actions when the accident occurred. You are responsible for explaining to the jury how the defendant caused the accident in detail. It is sometimes called "the plaintiff’s burden of proof."
While you cannot provide hearsay statements (out of court statements offered for the truth of the matter asserted), you can testify about your and the defendant’s actions, as well as your observations. (Keep in mind that as the plaintiff in a civil matter, your own out of court statements may be used against you, because they are not considered hearsay.) Your description can enlighten the jury and paint a picture of the absent defendant. Make especially sure that you do not say anything that is inconsistent with statements you previously gave to the police, the doctors or insurance adjusters.
It can be frustrating when a trial does not go as planned and the other party does not show up to take responsibility for his or her actions. A defendant can further complicate your life and your path to just compensation by failing to appear in court. However, by remaining calm and clear, you can still demonstrate to a jury that you are entitled to collect damages for your medical bills, auto repairs, pain, inconvenience, time loss frm work and aggravation and mental suffering. Even if the defendant doesn’t show up on "test day," you can still pass the exam with flying colors.