You are going to love this blog.

Last week I told you about an injury case in which we rejected the insurance company’s top offer and went to trial.

That jury gave us 4 times what the top offer was from the insurance company.  Today I want to tell you about a case I not only lost but completely blew.

It involved a drunk driving case.  I was an assistant D.A. representing the Commonwealth of Pennsylvania in the case.

The police officer arrested the driver for intoxication and the driver refused a breathalyzer test.

Therefore, it was crucial in the case for the officer to testify about his belief in the defendant’s intoxication.

Usually that is done by having him testify to the basis for his stop and his observation of the defendant’s driving and the field test that the defendant took and failed.

So what happened?

Well, I was facing an old, experienced criminal defense attorney.  Pittsburgh wrongful death, medical malpractice, auto accident, slip and fall and criminal defense attorney Bernie Tully was about 2 years out of law school and still unsure of himself in the courtroom.

It was a nonjury trial in front of an Allegheny County judge.

I had the police officer on the stand and I started questioning him.

I asked him about the stop and the reason for the stop.

I asked him about his observations about the defendant at the scene and what the defendant did at the scene.  All was going well up until that point.

Then it happened.

The defense attorney started to object.  He was objecting to everything.

Objection, no foundation.  Sustained.

Objection, hearsay.  Sustained.

Objection, no foundation.  Sustained.

See what the defense attorney’s strategy was?

He was trying to get Pittsburgh wrongful death, medical malpractice, car accident, slip and fall and criminal defense attorney Bernie Tully rattled.  He was trying to get a young, inexperienced prosecutor to forget to ask the ultimate issue in the case.

And that is what happened.

I forgot to ask the officer whether in his opinion, based upon all he saw and observed, whether the defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving.

And it worked.

I got so shook up that I forgot to ask that question.

I then said “the Commonwealth rests.”

Well, a big smile comes over the judge’s face.  Ditto the face of the defense attorney.

The judge looked down at me and said ” You forgot to ask the ultimate question.”

Not guilty.

Looking back on it, all I had to do was just ask the judge to let me reopen my case and ask that question.

But I didn’t think of that.

Well, I’m a big believer in learning something from every mistake.

I learned to never, ever, go into a courtroom without having an outline of the questions I am going to ask a witness on the stand.

And I never did after that day.

Thanks for reading.

Bernie the attorney