truck accident litigation from start to finish (nbi november 2011)

TRUCK ACCIDENT LITIGATION FROM START TO FINISHTRUCK ACCIDENT LITIGATION FROM START TO FINISHNovember 2, 2011 · CONFIDENTIAL MATERIALS

TABLE OF CONTENTS

I. Defense Planning for the Wrongful Death Case

II. Trial of a Truck Accident Case

Defense Planning for the Wrongful Death Case

Defense Planning for the Wrongful Death CaseDefense Planning for the Wrongful Death Case

Where to Start in Trucking Case Defense

What to Include in the Case Investigation

Discovery Techniques in Tractor-Trailer Collisions

Pretrial Motions

Use of Expert Witnesses

Where to Start in Trucking Case Defense

WHERE TO START IN TRUCKING CASE DEFENSEWHERE TO START IN TRUCKING CASE DEFENSE

If you are going to defend trucking companies/drivers in wrongful death litigation you need to be prepared to head to an accident scene in a moments notice.

You must have the proper equipment already in your vehicle or easily accessible.• Camera/Video Camera• Voice recorder• Pen and Paper• Reflective Vest• List of Pertinent Contact Information

What to Include in the Case Investigation

What to Include in the Case InvestigationWhat to Include in the Case Investigation

Counsel should immediately:• Identify the exact location of the accident;• Determine the owner of the tractor, trailer and cargo;• Identify the employer of the driver, and his status

(employee, independent contractor);• Ascertain whether any environmental or hazardous

conditions exist;• Retain an approved independent adjuster;• Locate the driver and make sure he/she doesn’t speak to

anyone but you;• Determine if the driver is out of service;• Determine if a post-accident DOT test is required (or was

performed);


Counsel should immediately: (con’t)• Determine whether law enforcement has directed post-

accident testing;• Determine whether the carrier has independent

drug/alcohol testing requirements and learn what protocols must be met;

• Discuss retention of an accident reconstructionist with the carrier;

• Determine whether a biomechanical engineer and/or other experts (conspicuity?) should be retained for scene investigation and vehicle inspection;

• Determine what ECM or other data is maintained by the carrier and if it can be accessed remotely;

• Determine the location of the tractor and protect any data;


Counsel should immediately: (con’t)• Direct any necessary post-accident inspections;• Determine a reasonable hold time for the tractor and any

cargo, taking into account the type of cargo;• Interview the driver (I would not suggest allowing the

independent adjuster to speak with the driver);• Determine whether the driver needs independent counsel;• Determine whether the driver requires criminal counsel if

charges are pending or imminent (likely with new CSA rules);

• Obtain any photographs taken by driver;• Obtain any driver accident forms completed by driver;• Obtain a copy of any citations issued to the driver;• Obtain copies of any statements from third parties;


Counsel should immediately: (con’t)• Obtain HIPAA complaint release from the driver

regarding test results pursuant to §382.405;• Identify all claimants and nature and extent of injuries;• Determine whether toxicology testing of claimants

has/will occur;• In fatality accidents, identify funeral home and coroner

and learn whether autopsies will be conducted;• Identify all witnesses, procure statements through

independent adjuster (you don’t want to be a witness later);

• Consider using a court reporter for taking statements where appropriate;


Counsel should immediately: (con’t)• Interview the investigating law enforcement officer;• Interview the responding DOT officer;• Determine what, if any, level of DOT inspection will

occur;• Obtain law enforcement officers’ field notes,

measurements and photographs;• Obtain copy of post-crash inspection report (will likely

take several days);• Arrange for accident reconstructionist to meet with

investigating officer where appropriate;• Obtain all accident reports and supplemental reports;• Obtain all 911 reports for the time period preceding and

including the accident;


Counsel should immediately: (con’t)• Identify all emergency responders to accident;• Obtain run reports and call logs for fire fighters and first

responders;• Obtain photographs of scene, tire marks, debris field,

signage and vehicles through independent adjuster and/or accident reconstructionist (depending on the carrier);

• Identify applicable speed limits, signage or other posted warnings;

• Obtain the sequence and timing of all relevant traffic control devices;

• Consider whether aerial and/or video photography is appropriate;


Counsel should immediately: (con’t)• Obtain accident history with respect to other accidents in

the same proximity;• Inquire as to conspicuity, signage, barricades, detours,

roadway construction, and any factors affecting visibility;• Identify contractors conducting roadway construction in the

area;• Obtain copies of all traffic or business video footage in the

area;• Obtain copies of all broadcast media coverage of accident,

along with raw data;• Obtain internet data regarding the accident—don’t forget

social media sites of claimants;


Counsel should immediately: (con’t)• Determine the location and owners of all vehicles involved

in the crash and see if the vehicles have on-board computers—issue a litigation hold on that information;

• Procure cell phone records for all drivers involved;• Inquire about carriers retention program and make sure

that all relevant, or potentially relevant data, is being preserved in compliance with that program and/or FMCSR;

• Obtain copies of Driver Qualification file, Driver Personnel file and accident history, payroll information, current driver’s manual, six month’s of driver logs, time cards and records of duty status, trip packs, BOL’s, fuel receipts, tolls, dispatch records, pre-trip and post-trip inspections, maintenance records for tractor and trailer, relevant leases, contracts and insurance.

Document Retention

Discovery Considerations in Truck Accident Cases

DISCOVERY CONSIDERATIONSDISCOVERY CONSIDERATIONS

The trucking industry is highly regulated and plaintiffs attorneys love to set traps. A few issues that should be immediately considered are document retention issues and overly broad litigation holds. Further, depending on your venue, there may be a separate cause of action for spoliation of evidence. Be prepared to litigate these issues even where you think you have taken all reasonable precaution. A few plaintiff advocates consider it your responsibility to monitor your drivers even when they are not working.


I. Then New CSA (formerly CSA 2010)II. Admissibility of “Preventable” DeterminationIII. Document Retention

DISCOVERY CONSIDERATIONSCSA (formerly CSA2010)DISCOVERY CONSIDERATIONSCSA (formerly CSA2010)

Why the change from SAFESTAT?• In 2004 the FMCSA issued an Executive Summary on

Improvements needed in the Motor Carrier Safety Status Measurement System. The results were downright frightening.

Of the 645,551 active interstate carriers on record in Safestat, 26 percent, or about 170,000 had sufficient data to compute a value for one or more of the four safety evaluation criteria.There were large state-to-state variations in reporting of traffic violations, which introduce a degree of geographic bias in the ranking system. For example, California reported only 115 serious moving violations to the FMCSA database in 2001 compared to Indiana, which reported about 25,000. Indiana still has a reputation as one of the nation’s strictest states.The Executive Summary estimated that errors occurred in approximately 13% of all crashes and 7% of inspection transactions on interstate carriers.An estimated 11% of the reports held the wrong carrier accountable for a SafeStat related violation.

• Oddly enough, the FMCSA did not agree with the Executive Summary.


Compliance, Safety, Accountability—formerly CSA2010.Compliance, Safety, Accountability (CSA) is a Federal Motor Carrier Safety Administration (FMCSA) initiative to improve large truck and bus safety and ultimately reduce crashes, injuries, and fatalities that are related to commercial motor vehicles. It introduces a new enforcement and compliance model that allows FMCSA and its State Partners to contact a larger number of carriers earlier in order to address safety problems before crashes occur. Rolled out in December 2010, the program establishes a new nationwide system for making the roads safer for motor carriers and the public alike! See http://csa.fmcsa.dot.gov/about/.


Compliance, Safety, Accountability 7 BASICS• Unsafe Driving• Fatigued Driving• Driver Fitness• Controlled Substances/Alcohol• Vehicle Maintenance• Cargo Related• Crash Indicator


The six major differences between the new SMS and SafeStat are as follows 1. SMS is organized by 7 behavioral categories while SafeStat was comprised of 4 general safety evaluation areas. 2. SMS identifies safety problems to determine who to investigate while SafeStat prioritized carriers for an overall compliance review.


3. SMS uses all safety inspection violations, SafeStat only used out of service violations and specific moving violations. 4. SMS gives weight to risk based violations while SafeStat did not. 5. SMS will impact carriers safety fitness determination while SafeStat did not. 6. SMS assesses drivers and carriers.


Upon intake of any trucking defense file every defense attorney should, visit the SMS website and also pull the driver’s PSP (pre-employment screening program) from the MCMIS (motor carrier management information program).MCMIS electronic profiles will contain five years of crash data and three years of inspection data, however, MCMIS will not include conviction data.


Crash and Incident Data Studies have shown the majority of serious multiple vehicle crashes involving trucks are instigated by the actions of passenger vehicles. The current CSA does not take into consideration "fault" when including crash data into a carrier's "crash" BASIC. All crashes involving the carrier are included, thereby skewing the carrier's threshold at which FMCSA intervention will be initiated. The CSA database must only include those accidents in which "fault" was established against the motor carrier or driver. In addition, the database should only include DOT recordable accidents. The FMCSA is currently attempting to address crash accountability within the CSA methodology.


Will CSA be better than SafeStat? It’s too early to tell as we don’t yet have enough information to accurately evaluate not only the resulting, data-based determinations, but we have no basis to evaluate the data going into the system. So, if we have insufficient valid data to assess the accuracy of the system, what are the potential implications of using CSA data at trial?


CSA And The Potential Impact On Litigation There is no regulation or statutory authority that specifically states that information collected as a result of CSA will, or will not, be admissible in legal proceedings. Further, FMCSA Part 385 (Safety Fitness Procedures) does not specifically mention the admissibility of SafeStat data. As such, there are several possible implications, but little clarity regarding the future usage of CSA data.


Potential Implications of CSA Data Compliance with the new regulations will not protect a carrier from liability for an accident. However, the fact that the CSA program will force carriers to be overly vigilant in complying with safety guidelines, may mean that plaintiff’s lawyers will have less ammunition vis-à-vis certain carriers for negligent hiring or negligent maintenance claims.


Potential Implications of CSA Data Good safety records may also be beneficial in reducing potential punitive damages claims that are generally based on reckless disregard of public safety, or blatant violations of trucking regulations. At a minimum, CSA should force motor carriers to be more diligent in safety record keeping, which will likely prove beneficial to defense counsel when defending negligence claims against compliant motor carriers.


Potential Implications of CSA Data CSA could also have the reverse effect for those carriers that have poor BASIC scores. Since most CSA data will be made public, plaintiff’s attorneys will certainly attempt to make use of the negative data against a carrier and/or driver at trial. Despite the FMCSA’s statement that PSP/DIR reports will not be made public, plaintiff’s will most likely attempt to use the subpoena power of the courts to obtain this information, similar to how plaintiffs currently acquire medical, criminal and traffic records.


Potential Implications of CSA Data Whether this data will ultimately be admissible at a trial is questionable given that the FMCSA’s concern with implementing CSA is safety and not admissibility of evidence. Only time will be able to tell how state trial courts will rule on the admissibility of data collected as a result of the CSA initiative.


Potential Implications of CSA Data In Schramm v. Foster, a case against a broker for negligent hiring of a motor carrier, the federal trial court held that the duty of the broker was to use reasonable care in hiring carriers, including at least: checking the SafeStat database; and maintaining records on the carriers used to assure the carriers are not manipulating their business practices to avoid unsatisfactory SafeStat ratings. Schramm v. Foster, 341 F.Supp.2d 536 (D.Md. 2004).


Potential Implications of CSA Data In Doyle v. Watts Trucking, there was an accident involving allegations of “sleep deprivation” against the truck driver and vehicle maintenance against the carrier. The court allowed into evidence various safety reports from the FMCSA, including SafeStat data showing that the carrier regularly violated HOS rules and violated regulations on brakes and tire tread depth. The defendant objected on relevance grounds, but the court allowed the evidence. CSA data will contain similar information. Doyle v. Watts Trucking of Nebraska, Inc., 2007 WL 197721 (Neb.Ct.App. 2007).


Potential Implications of CSA Data It is likely that CSA safety data will be sought in discovery and used, both for and against potential defendants at trial, regardless of the FMCSA’s intent. This further increases the importance of diligent CSA compliance. Fortunately, the trend seems to be limiting admissibility to only cases where the violations are causally related to the alleged negligent activity.

DISCOVERY CONSIDERATIONSAdmissibility of “Preventable” DesignationDISCOVERY CONSIDERATIONSAdmissibility of “Preventable” Designation

No two accidents or carriers are exactly alike and the FMCSA recognizes that not all accidents are preventable. Some types of accidents, however, can be prevented by drivers, while others require changes in motor carrier practices and policies or equipment. The new FMCSA method for determining preventability is based on examination of the facts in accident records. http://www.fmcsa.dot.gov/safety-security/eta/ETA%20Final%20508c.pdf, page 126.

http://www.fmcsa.dot.gov/safety-security/eta/ETA%20Final%20508c.pdf

http://www.fmcsa.dot.gov/safety-security/eta/ETA%20Final%20508c.pdf


For accidents that occur after April 29, 2003, motor carriers must maintain an accident register for three years after the date of each accident. For accidents that occurred on or prior to April 29, 2003, motor carriers must maintain an accident register for a period of one year after the date of each accident. Information placed in the accident register must contain at least the following:(1) A list of accidents as defined at §390.5 of this chapter containing for each accident:(i) Date of accident.(ii) City or town, or most near, where the accident occurred and the State where the accident occurred.(iii) Driver Name.(iv) Number of injuries.(v) Number of fatalities.(vi) Whether hazardous materials, other than fuel spilled from the fuel tanks of motor vehicle involved in the accident, were released. §390.15(b).


What is the “official” definition of “preventable?”• The National Safety Council’s definition states, “a

preventable collision is one in which the driver failed to do everything that reasonably could have been done to avoid the accident.”

• The American Trucking Association defines preventability as follows: “was the vehicle driven in such a way to make due allowance for the conditions of the road, weather, and traffic and also to assure that the mistakes of other drivers did not involve the driver in a collision.”

• The FMCSR states that a preventable accident on the part of a motor carrier means an accident (1) that involved a commercial motor vehicle, and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the driver. §385.3


§385.7(f) states that factors to be considered in determining a safety rating include, "frequency of accidents; hazardous materials incidents; accident rate per million miles; indicators of preventable accidents; and whether such accidents, hazardous materials incidents, and preventable accident indicators have increased or declined over time." Unfortunately they offer no definition of "preventable accident indicators.“Neither §390.15(b) nor §385.7(f) makes mention of recording of accidents as preventable or non-preventable.


Part 385.7(f) states that factors to be considered in determining a safety rating include, "frequency of accidents; hazardous materials incidents; accident rate per million miles; indicators of preventable accidents; and whether such accidents, hazardous materials incidents, and preventable accident indicators have increased or declined over time." Unfortunately they offer no definition of "preventable accident indicators." Interestingly enough, Part 385.7(f) was changed in July of 2007 and specifically removed "preventable accident rate per million miles" from the factors to be considered in determining a safety rating under that part.


Appendix A to §385 Explanation of Safety Audit Evaluation Criteria states, "Preventability will be determined according to the following standard: if a driver, who exercises normal judgment and foresight, could have foreseen the possibility of the accident that in fact occurred, and avoided it by taking steps within his/her control which would not have risked causing another kind of mishap, the accident was preventable." This a scary standard for litigators. If the carrier has already identified the accident as “preventable”, which is the default designation under FMCSR, it may have already tied my hands on liability. However, all may not be lost.


There are several arguments against the discoverability, and ultimately the admissibility, of a “preventable” designation. Different jurisdictions have differing views of the law so consult an attorney.• Subsequent remedial measure—See Harper v. Griggs,

2006 U.S.Dist. LEXIS 64691 (W.D.Ky., 2006);• Protected from discovery by 49 U.S.C. § 504(f) because

they were required by the FMCSA—See Tyson v. Old Dominion Freight Line, Inc., 270 Ga. App. 897, 608 S.E.2d 266 (Ga.Ct. App., 2004);

• Prepared in anticipation of litigation, which necessarily requires that such a designation is not prepared in the normal course of business—See Ward v. Rickrode, 849 A.2d 619; 2004 Pa. Super. LEXIS 113(2004);

• Constitutes mental impressions of the defendant regarding the liability—See your local state rules regarding privileged information;

• Critical self-analysis doctrine—where applicable and recognized.

DISCOVERY CONSIDERATIONSDocument RetentionDISCOVERY CONSIDERATIONSDocument Retention

Required Docs Retention Time FMCSR Citation

Logs and trip docs 6 months §395.8(k)(1)

General vehicle information

One year and for six months after vehicle leaves carrier’s control

§396.3

Post-Trip inspection 3 months §396.11(c)(2)

Roadside inspection 1 year §369.9(d)(3)(ii)

DQ file and investigation history

Through employment and 1 year after

§391.51(c)

Alcohol and Drug test

Positive: 5 yearsNegative: 1 year

§382.401(b)(1)§382.401(b)(3)

Accident Register 3 years §390.15(b)


Court orders an adverse inference instruction pertaining to the defendants’ destruction of actual driver’s logs required by the FMCSR. Additionally, the court found Qualcomm messages that contained a recap of the driver’s logs were not sufficient to constitute production of the actual driver’s logs.Ogin v. Ahmed, 563 F.Supp.2d 539 (M.D. Penn. 2008)


Failure to maintain six months of driver’s log books and accompanying records, along with plaintiff’s demand letter for the records and the requirements of the FMCSA, created an inference that documents were intentionally destroyed. The Court gave an adverse instruction stating: (1) carrier failed to properly monitor the driver’s safety performance; (2) carrier was aware of safety violations; and (3) carrier knew driver was operating in a fatigued state.Darling v. J.B. Expedited Servs., 2006 WL 2238913 (M.D. Tenn. 2006)


Court found carrier had been “cavalier” and had “intentionally misled the Court and Plaintiffs” regarding the whereabouts of the log book, logbook audits and accident file. The Court further found the carrier had provided incomplete and/or false responses to discovery requests. Based on these findings the carrier was fined $30,000.Garrett v. Albright, 2008 WL 681766 (W.D. Mo. 2008)

Pretrial Motions

PRETRIAL MOTIONSPRETRIAL MOTIONS

Motions in Limine• A Motion in Limine is the best tool for the successful defense

of catastrophic cases. Consider the following potential motions in limine:

Barring the demonization of trucking companies in general;

Barring admission of irrelevant logs (remote from accident date);

Barring admission of irrelevant ECM data (remote from accident date);

Barring admission of Preventable Accident Determinations;

Barring claims for negligent hiring/retention where applicable;

Barring admission of other accidents.

Use of Expert Witnesses

USE OF EXPERT WITNESSESUSE OF EXPERT WITNESSES

There are a variety of potential expert witnesses in the catastrophic trucking accident case. There are also several different types of heavy equipment which may require a certain type of expert witness. Buses, heavy tow trucks, flatbed trailers, dry van trailers and other types of equipment are specialized equipment and may require a certain type of expert. In addition, any given case may include a thorough examination of the driver logs to determine if a driver is out of hours, loading dock safety, improper securing of a load, or another area of specialization.

You might also consider an expert to conduct the ECM download (different manufactures have different modules), accident reconstruction, conspicuity, kinematics, biomechanics, general heavy equipment safety, pre-trip inspections, DOT compliance, toxicologist and any host of other issues that may arise by virtue of a specific set of facts.

Trial of a Truck Accident Case

TRIAL OF A TRUCK ACCIDENT CASETRIAL OF A TRUCK ACCIDENT CASE

I. Jury Selection

II. Opening Statements

III. Presenting Evidence

IV. Closing Arguments

JURY SELECTION

JURY SELECTION—A Defense Prospective

JURY SELECTIONJURY SELECTION

• The purpose of jury selection is to gather enough information to find and exclude jurors who are predisposed to construe all inferences against the driver or trucking company, regardless of the evidence.

• You have to address this predisposition as early as possible in trial, but you can do it in a manner which emphasizes the unfair characterization of truck drivers and trucking companies.

• The opposition is certainly going to try and demonize your client, his/her employer or both. You must be prepared to combat this tactic with the available information.

• The trucking industry is one of the most regulated industries in the country. Start by weaving in some factual data regarding truck accidents.

A List of the Plaintiff’s Attorney’s View of Truck Accident CausationA List of the Plaintiff’s Attorney’s View of Truck Accident Causation

Lack of Training on the part of the truck driver; Overloaded Trucks; Oversized Trucks; Poorly maintained brakes on the trucks; Driving in conditions of poor visibility due to smoke, fog, snow or rain; Truck driver inexperience; Fatigued, sleepy or tired driver driving too long and too many hours without rest; Speeding over the limit or driving at speeds or beyond the road and weather conditions; Running off the road; Failure to yield the right of way; Aggressive driving behavior; Truck drivers under the influence of drugs and alcohol while driving; Driving the truck in bad weather conditions; Dangerous or reckless truck driver with a long record of wrecks and accidents; Unsafe safety systems, reflectors, lights and other warning devices; and Failure of truck to have installed an underide protection underguard. Take a look at http://www.indianatruckaccidentlawyers.com/faqs.cfm#q1 or http://www.apitlamerica.com/ for some other interesting thoughts on trucking accidents by the plaintiffs’ bar.

http://www.indianatruckaccidentlawyers.com/faqs.cfm#q1

http://www.apitlamerica.com/

JURY SELECTIONStatistics to Use in Voir DireJURY SELECTIONStatistics to Use in Voir Dire

A 2006 Virginia Tech analysis of two studies conducted for the Department of Transportation found that 78 percent of crashes were caused by passenger car drivers.In fatal crashes involving a car and a large truck, 35 percent of the time the crash occurred in one of the four blind spots surrounding large trucks.In 2006, rear-end collisions where passenger cars strike large trucks were 2.7 times more likely than large trucks rear-ending passenger cars.Head-on collisions where passenger cars encroach into the truck’s lane are more than 10 times more likely to occur than vice-versa.


In 2009, 3,215 large trucks were involved in fatal crashes, a 21-percent decrease from 2008 and the largest annual decline since records have been kept. Including the 12-percent decrease from 2007 to 2008 (the second-largest decline on record), the number of large trucks involved in fatal crashes declined by 31 percent from 2007 to 2009. Over the past year, large truck and bus fatalities per 100 million vehicle miles traveled by all motor vehicles (preliminary data) declined by 21 percent, from 0.153 in 2008 to 0.121 in 2009.


From 1999 to 2009:• The number of large trucks involved in fatal

crashes has declined by 35 percent. • The number of large trucks involved in

injury crashes has decreased by 48 percent.

• The number of large trucks involved in property damage only crashes has decreased by 35 percent.

All statistics taken from the Large Truck and Bus Crash Facts 2009 Early Release, which can be found at http://ai.fmcsa.dot.gov/CarrierResearchResults/HTML/2009Crashfacts/2009LargeTruckandBusCrashFacts.htm

JURY SELECTIONConclusionJURY SELECTIONConclusion

Don’t let plaintiff’s counsel get the advantage by perverting the public perception that trucking companies and drivers are unsafe and responsible for all accidents involving a commercial vehicle.

Plaintiff’s counsel will almost certainly “open the door” to your use of the statistics provided by asking jurors about their thoughts about large trucks and the perception of unsafe drivers.

Turn the tables and educate the jury on the facts all at the same time. Set the tone.

OPENING STATEMENTS

OPENING STATEMENTSGenerallyOPENING STATEMENTSGenerally

Once you get through the pretrial challenges that shape and limit what gets introduced at a trial the law doesn’t have a lot to do with how the case is actually tried.

The trial is not a legal puzzle that you get to put together for the jury, it’s your opportunity to do a better job of presenting the jury with a story they can identify with and believe. Every action taken by you, your client and your opponents in the presence of the jury is viewed, remembered, scrutinized and judged.

The opening statement is like the first act in a play—make it interesting and you’ll hold the audiences’ attention. Bore them and it won’t matter what you say.

OPENING STATEMENTSKey ThemesOPENING STATEMENTSKey Themes

It is your obligation to give the jurors the information they need to help them reach the “right” verdict. This involves giving them a story of the case that is consistent with the jurors’ own life experiences, and that prevents them from bringing into their reasoning extrajudicial experiences that are inconsistent with your positions.

Using key themes is the best way to persuade jurors to your positions. Research indicates that people learn by organizing complex issues into simple concepts. Find a theme that works and repeat if throughout the trial. If you find the right theme the jurors will make the facts fit your theme.

OPENING STATEMENTSKey ThemesOPENING STATEMENTSKey Themes

• At the heart of every well tried case is the pivotal issue of why or why not someone should be held liable. Whichever side can most effectively condense complex issues into simple, believable concepts is likely to be successful.

• Don’t present the jury with the concept of reaching a just result. Everyone has a different idea of what justice is or what it should require. Invoking justice simply evokes contemplation, and you cannot control or guide a juror’s contemplation. Frankly you don’t want a juror contemplating your notion of justice.

• You will be better off arguing to a jury that your client is a victim of injustice. Everyone has suffered some kind of injustice and will more easily identify with this theme. Put the other side on the defensive.

OPENING STATEMENTSUse of Mock Trials or SimulationOPENING STATEMENTSUse of Mock Trials or Simulation

• One very powerful tool in developing themes is a mock trial or trial simulation. Here are some reasons to (and not to) consider a Mock Trial.

Attorneys think differently than your average juror. Do you process information differently than you did prior to law school?

Remember, you will likely have lived with this case for several years and may have a tendency to overlook what to you might seem trivial or obvious. A mock jury will give you a reality check and let you know if you miss a glaring issue.

Don’t get caught ignoring your real jury. Just because it resonated with a mock jury does not mean it will be as well received by a real jury. You have to know when you aren’t connecting.

This can be very expensive and not every case will warrant a mock trial or simulation.

OPENING STATEMENTSAvoiding Mistakes in Theme PreparationOPENING STATEMENTSAvoiding Mistakes in Theme Preparation

• Do not overlook the psychological and emotional reactions jurors will have to the facts of your particular case. Relying on a legal defense may make perfect sense to you, but jurors are going to react to the actual facts and how the facts make them feel. They are not going to apply those facts to a legal precedent. You must anticipate jurors having sympathy for a plaintiff who has lost a loved one or suffered a terrible injury and find a way to tactfully address it.

• Do not rely on the “burden of proof” theme. Research indicates that in most civil cases jurors misinterpret or ignore judicial instructions as to the nature of the burden of proof. It is easier for jurors to assume the defendant must demonstrate why it did nothing wrong and should not be held liable. It is easy for a juror to rationalize that a judge would not allow a case to go to trial if there was no rational basis for the claim. Prepare like you (the defendant) have the burden of proof.

PRESENTING THE EVIDENCE

PRESENTING THE EVIDENCEDemonstrative Aids and SimulationPRESENTING THE EVIDENCEDemonstrative Aids and Simulation

• Jurors are easily bored so do something to keep them interested in your case and what you are saying. Anything you can do/use to get a juror’s attention is valuable.

• Most concepts are far more easily presented in a visual, rather than oral, manner. This is especially true in motor vehicle accidents where it is difficult for a juror to visualize an intersection, the distance between vehicles, the location of traffic control signals or any other fact that may be essential to proving your claim. Don’t just tell them, show them.

• Be very careful that what you are showing them actually depicts what you say it does. Jurors are keeping score and if you mislead about any piece of evidence you lose credibility that you may not be able to regain. On that same topic, keep score on opposing counsel. If he/she doesn’t deliver on a promise make sure to hammer that later.

PRESENTING THE EVIDENCEDemonstrative Aids and SimulationPRESENTING THE EVIDENCEDemonstrative Aids and Simulation

• Today’s jurors have spent an inordinate amount of time watching television and respond to visual stimulation, particularly computer generated graphics, over any other medium.

• To effectively use demonstrative evidence you need to tell the jury what is coming, but don’t explain it in such detail that they get bored and lose interest. Just tell them what they are going to see in simple terms—label the vehicles and the directions and then just let them watch.

• Because of shows like CSI and Law and Order, jurors are expecting to be entertained in the courtroom. If you really want to capture and hold their attention you simply cannot rely on oral testimony. Give your witness an exhibit to talk about while the same exhibit is being displayed to the jury. I guarantee they will follow along much better than if you pause to publish a photograph and the jury is passing it around while you are presenting evidence.

PRESENTING THE EVIDENCEWitnessesPRESENTING THE EVIDENCEWitnesses

• It is imperative that you prepare your witnesses for a credible presentation to the jury. Take the time to check out their attire and grooming prior to putting them on the stand. These jurors don’t know your witnesses and they will only see/hear them for a short period.

• Video tape your witness preparation and show the video to the witness immediately afterward. Point out how bad slouching in their chair or chewing on their fingernails looks to the jury.

• Go by the old adage that no one has a memory powerful enough to be a successful liar. If they lie they will eventually be caught and you will lose credibility and quite possibly the case.

PRESENTING THE EVIDENCEWitnesses—Don’t Be Too Confrontational

PRESENTING THE EVIDENCEWitnesses--Don’t Be Too Arrogant

PRESENTING THE CASEWitnesses—Cross ExaminationPRESENTING THE CASEWitnesses—Cross Examination

Don’t cross examine a witness just because he/she is a witness detrimental to your case.Only cross examine if doing so can help your case.Cross examining a witness that hurts your case only serves to solidify your opponents position.


Start early—well ahead of trialOutline theme, story, witnesses and exhibits in voir dire and opening statementsYour cross examination should be consistent and move your case theme forward


What can this witness say that can help your case?How do you make him/her say it?Think outside the boxDon’t be afraid to start out with the main issues in the case. The witness likely won’t be ready for it.Don’t let the witness get comfortable• Don’t let them anticipate the

next question


Do not take the witness’ deposition a second time• You only have the jury’s attention

for a short time, use it wisely. Be selective about your questions.

• Impeachment on anything but a material question of fact is ineffective, and improper.

• End on an up tick.


Tell a story. You will be using leading questions to tell a story. It might be your client’s story, the story of missed opportunities (what else could the witness have done or should the witness have done?), or the story of impediments to observation (what did the witness misread, fail to observe, or neglect to observe?) There are numerous stories you can tell – pick your story, and then tell it with leading questions. Practice by telling the stories you already know. You represent the Three Bears, and you have the opportunity to cross-examine Goldilocks. What story will you tell through your leading questions? Cross-examining the Big Bad Wolf, can you tell a story from the Three Pigs perspective? Or cross-examine your favorite movie villain. Sounds goofy, but give it a try.

PRESENTING THE EVIDENCECross Examination—Ineffective

PRESENTING THE EVIDENCECross Examination—Effective

CLOSING ARGUMENTS

PRESENTING THE CASEClosing ArgumentsPRESENTING THE CASEClosing Arguments

If you’re trying a case there is likely a weakness. You have to deal with those weaknesses instead of just summarizing the evidence.Admit what you must, and do it gracefully. It will help your credibility to be human and for your case to have weaknesses. Denying or ignoring the weaknesses makes them larger than they really are.Try to imagine what questions a juror would have at the close of the case and make sure you answer those questions.

PRESENTING THE CASEClosing ArgumentsPRESENTING THE CASEClosing Arguments

Now is your opportunity to tie the case into a nice neat bow. Remind the jury that your theme has been borne out through every phase of the trial.Keep consistent with your theme.Those of us representing corporations must convince the jury that forcing our client to pay for something it is not responsible for is an injustice and why not compensating a seriously injured person, regardless of the facts, is just.

PRESENTING THE CASEClosing Arguments—Body LanguagePRESENTING THE CASEClosing Arguments—Body Language

• Positive influential body language includes:• Posture—stand straight with your chest

out.• Presence—lean back and take up space.• Face—smile, relax the tension in your face

and jaw.• Eye Contact—look people in the eye, but

don’t stare.• Arms and Hands—keep hands out of your

pockets.• Leg Stance—use an open stance with

weight on one leg.• Voice—deep voice, speak slowly and

confidently.• Attitude—confident, passionate, happy

and positive.

PRESENTING THE CASEClosing Arguments—TempoPRESENTING THE CASEClosing Arguments—Tempo

• Master pauses for impact• Persuasive speakers use pauses

for emphasis, effect and mood.• Pauses can alert your audiences

to pay attention to a special point as if to say “listen to this.”

• The key is to pause in front of the point your want to emphasize and keep eye contact during the entire time.

PRESENTING THE CASEClosing Arguments—Problem SolvingPRESENTING THE CASEClosing Arguments—Problem Solving

• Practice, practice, practice. Try to reason out these problems with non-attorney friends. Better yet, try this out on your children (my personal favorite). If you can lead them to a rational conclusion you can do it with anyone. Plus, kids force you to walk them through every step in the process—a good rule to practice and learn.

PRESENTING THE CASEClosing Arguments—Personal ThoughtsPRESENTING THE CASEClosing Arguments—Personal Thoughts

I like to address damages even when I believe I’m strong on liability. Give the jury an alternate number and tell them why your number is more reasonable.I love it when plaintiff’s counsel doesn’t give the jury a number in the main closing. This gives me an opportunity to tell the jury that Plaintiff will not get up here and ask you to reward some outlandish number like [insert number which is likely far below the number they will actually ask for]. Now they have to get up and explain why it is not an outlandish number.I like to use the jury instructions in my closing argument. I especially like pointing out to the jury which verdict form is a defense verdict form and ask them to find it and fill it out.Don’t forget about technology and demonstratives.Stick around after the verdict even if it is bad for your client. You’ll learn far more than you think.

CLOSING ARGUMENTSHow Honesty, Inflection and Tempo Work Together

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Robert R. Foos, [email protected]

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