You’re a personal injury lawyer. You’re sitting at your desk. A near-sighted, potential client wheels himself into your office and declares, “The other day, I didn’t look where I was going … and walked into a bus mirror.” Would you take this case?
When asked to serve as the plaintiff’s expert, I had the same thoughts: “What case!? The plaintiff admits he wasn’t paying attention … and walked into a bus that wasn’t even moving. How is this even a case? Sounds frivolous to me.”
I took the case. We settled out for $330,000 against the coach manufacturer, and $900,000 against the operator. Now you’re asking, “You’ve got to be kidding!” I’m not.
Taking the Victim Where One Finds Him
The plaintiff, a 30-something neurosurgeon from Japan with a seven-figure annual income, was attending an international conference on neurosurgery. Chatting with a colleague outside the motorcoach providing shuttle service to conference attendees, the plaintiff turned around and – bam! – walked smack into the lower mounting bracket of an exterior mirror sticking out literally two feet from the coach. The plaintiff described his initial sensation not in terms of pain, but rather, by identifying the specific vertebrae which he knew, instantly, had cracked! End of career. (After all, would you let a partly-paralyzed surgeon operate on your brain?!) End of eight-figure lifetime earnings. Also, of course, the start of a frightening law suit.
A fundamental doctrine of tort law is that one “takes the victim where he finds him.” In simple terms, it will cost you less to ruin the life of a frail-elderly paraplegic with terminal cancer on Death Row than the life of a teen-age billionaire-athlete-real estate mogul. Pauper or prince, if your negligence caused someone’s injury or demise, you’re going to pay for the life he or she would likely have had – not to mention pain, suffering, medical bills and a lifetime of personal care.
The Manufacturer’s Web
All this because of a crummy mirror? Yep. An obscure, European-manufactured accessory, the mirror “tucked” in flush against the coach body. Possibly because this feature was so obvious, the manufacturer’s literature contained no instructions about it – much less a warning to tuck it in when the coach was parked, in service. In deposing the manufacturer’s Quality Assurance Manager, I suggested my attorney ask, “What’s the difference between a bus and a coach?” Recognizing that the answer related to dwell time, opposing counsel practically swallowed his tongue and called for a recess. (The witness never answered the question.) Making matters worse, the QA Manager prepared a Report claiming, among other things, that:
- It was the only mirror available for that model/year coach
- It was the only mirror that could be mounted on the coach’s door
- It was the only door available for that model/year coach
I spent a few lunchtimes near my Lower Manhattan offices photographing scores of motorcoaches with different doors and mirrors – including some of the same manufacturer’s coaches, for the same model year, with different doors, different mirrors … and different mirrors on the same door as the coach involved in the case. (As a professional courtesy, I do not use evidence from my library of product literature. So I did not use the manufacturer’s European product line brochure for the same coach model with the curb-side mirror mounted at the roof line!) I even found one door-mirror combination – on the same model coach as in the case – whose owner had wrapped orange-and-white-striped “warning” tape around the lower mirror bracket: I actually had a photograph of the concept – “reasonably foreseeable” – on which tort claims are predicated!
The manufacturer’s documentation didn’t help its case either: Not only did that coach model’s options list contain several mirror options, it contained four different doors! Further, during the quality assurance process, an inspector “flagged” the door, notating “Wrong Door” on the form. Similarly, he notated “Wrong Mirror.” Neither the door nor the mirror were what the customer even ordered! Of course, no effort was made to replace either.
By the time manufacturer’s counsel reviewed my Report, their defense was entrenched in a web of lies, nonsense and subterfuge. Rather than risk paying part of a World-class neurosurgeon’s lifetime earnings, they wrote a check … and sighed.
The Duh! Factor
Had the coach operator gone to trial, all its witnesses would have faced, as their first question: “Tell me, did you ever wash this coach?” You can guess the ensuing dialog:
Q: “Tell me, do you wash this coach by hand?”
Q: “Oh. So you run it through a big machine, with scrubbers and brushes. Tell me,
how do you keep the mirror from being knocked off by the washer?”
Q: “Oh. So you mean – let me get this straight – you tuck the mirror in to protect the
mirror, but you don’t tuck it in to protect the passengers. Is that correct?”
A: “Peep, peep.”
Q: “I’m sorry – could you repeat that?”
Rather than face such questions, the operator wrote an even bigger check … and sighed. After all, one can’t risk a jury thinking, “Duh!”
Bowling for Dollars
Where more than one defendant is negligent, plaintiffs’ attorneys have two basic strategies:
- Take all the parties to court and let them fight it out: As they blame the incident on one another (this is called a third chair defense), they’ll “make the case” for the plaintiff.
- Let the parties drop out – in return for settlements – until you’re left with only one. This not only simplifies the case, but funds from these successive settlements finance the rest of the attorney’s efforts. (Remember: Plaintiff’s attorneys almost always work for “contingency fees.”) Further, as a condition of their settlements, the parties dropping out become witnesses for the plaintiff.
Good attorneys knock down the pins. Better attorneys choose the pins they knock down, and leave others standing to await trial. The best attorneys not only choose the pins, but the sequence in which they knock them down. Further, the more money the plaintiff receives in a settlement from one defendant, the more willing he – and his client – may be to gamble on a trial with each subsequent defendant. This process rewards the “first man out.” But it also encourages defendants with limited or no negligence to offer small settlements quickly; they can’t risk larger ones as the case progresses.
A Time to Surrender
As a practical matter, defendants cannot always “stipulate” to the negligence when the damages are sizeable. A major goal of the settlement process,from the defendant’s perspective, is to reduce the damages to manageable proportions. But the success of efforts to fabricate or obfuscate the truth can be costly when the plaintiff has good attorneys and technical experts. If the truth is buried, these individuals will find it. Sometimes, the most prudent response is, “Oops. We goofed. We’re so sorry. How can we help?”