"Potholes" in Trial
This week we provided trial technician support to a defense firm in federal court in Houston, TX. Most of the time we work for plaintiff trial lawyers so this particular case gave us some significant insight from a defendant standpoint. One of the good points for the plaintiff attorney was that he was using the reptile model to present his case in opening. The bad news was that with his limited experience he failed at connecting the rule violation specifically to his case. The plaintiff lawyer focused on the driver having no "Goal", the driver failing to use warning triangles and making unsafe movements but the defense lawyer admitted to fault of the driver and accepted responsibility on behalf of the company and the driver in opening arguments leaving the Plaintiff with a poor story opening.
The defendant driver had parked on the shoulder of the road in a business district . The defendant driver claimed at the time of the accident and at deposition that there was a significant pothole in front of his semi-truck and to avoid the pothole and that he needed to backup before pulling off the shoulder onto the road. While backing up the defendant driver impacted the plaintiff's vehicle that was parked behind him causing damage to the front of the vehicle and causing significant injuries to the plaintiff. Whether the pothole was or was not there should not have been an issue in the case since the defense had admitted to fault and accepted responsibility. The plaintiff lawyer by focusing on the wrong rules created a story line about potholes instead of about financial responsibility.
The plaintiff lawyer knew or should have known that the defense was going to concede fault and responsibility making his argument irrelevant. By simply changing the story in this case, the plaintiff may have achieved a better result through a larger verdict that would have included all of his medical and larger amounts for pain and suffering. One effective argument would have been that by the defendants admitting fault and accepting responsibility for the accident, it does not make the plaintiff whole again. Only by also accepting financial responsibility and fully compensating the plaintiff can the plaintiff be made whole again.
As an example of an effective argument would be to share with the jury that accepting fault and admitting responsibility is only part of what a prudent driver and truck company should do. The driver and the trucking company must go further and fully compensate the victim for the harms that he has suffered as a result of the crash. A driver and a trucking company acting in an unsafe manner are not only responsible for compensating the victim for all of his financial losses as a result of the crash, but they are also responsible for making the victim whole again by compensating the victim for the non-monetary losses they have suffered as a result of the crash in a monetary manner.
Make sure when your presenting your case to the jury that you are not focusing on the pothole while your case is really about the harms your client suffered and the compensation that he rightly deserves.