Defending Against Law Suits – A New Operating Function

Public transportation-related law suits are growing, and damage awards are skyrocketing. Apart from raising premiums and possibly threatening your business altogether, law suits are also taking more and more time – especially for the “person most knowledgeable.” Defending oneself against law suits has effectively become a critical operating, manufacturing or dealership function.

As in most legal arenas, the plaintiff in a civil suit must prove his or her case. As a practical matter, however, the criminal standard for guilt – beyond a reasonable doubt – is not necessary in civil cases. Often, the plaintiff’s attorney may simply persuade jurors that awarding damages is an “adjustment.” For these reasons, an accident defense is often difficult – and almost always costly, time-consuming and risky – even when no negligence was involved.

Liability and Negligence. One is not liable merely because an accident occurs. Two other things must also happen – at least theoretically:

  1. There must be negligence (these are called errors and omissions)
  2. It must be related to the injury (this is called proximate cause)

Sometimes, however, the plaintiff’s expert witness “paints a picture” of the defendant’s vehicle or system as negligent in general – apart from factors related to the accident. If jurors accept this characterization, they are more likely to find fault with the defendant even if no linkage is established between the negligence and the accident.

Sending Messages. We’ve all seen plaintiffs’ summations on T.V. and in movies. Zealous attorneys (usually good actors) convince the jury (usually bad actors) to make a large damage award to “send a message.” (I’ve always wondered: “To whom – more attorneys?!”) Good attorneys know that juries are increasingly less tolerant of negligence as it moves up the management hierarchy – and tend to increase damage awards proportionately. Jurors can understand how a driver may make an error. They are less forgiving of a supervisor or training instructor. And God help the defendant whose negligence involved policies or procedures. The higher the level of negligence, the more important it is to “send the message.”

Frivolous Law Suits. Many lawsuits involve no negligence at all. Or the plaintiff’s attorney sues parties not remotely involved. Such strategies – often referred to as frivolous law suits – are the predictable result of a legal system where the loser of a civil case does not pay the winner’s legal expenses. Regardless, the defendants must prove that they either committed no negligence, or that it didn’t cause the accident. In a recent case where a driver ran a red light, killing an elderly passenger, I helped get the case dismissed against the vehicle dealer. In contrast, some cases which appear frivolous turn out not to be when examined closely: I recently helped a plaintiff’s attorney settle for more than $1.3 million against a charter operator and vehicle manufacturer where, without looking, a pedestrian walked into a motorcoach’s exterior mirror. Both defendants were not only genuinely negligent, but made a mess of their defense – and faced the risk of far greater damages had the case proceeded to trial.

Defense Structure. In the vast majority of accident cases, the defendant’s insurance company selects an attorney and – if the plaintiff’s counsel has one – the defendant’s attorney obtains an expert witness. Rarely do defendants’ attorneys meet with management or staff. So the case is not only presented in an environment of enormous latitude, but coordinated by someone not even in the field, and who receives no technical help! It should be no surprise that damage awards are so excessive, and so frequent – even when negligence is minimal or non-existent. Of course, no rules prohibit defendants from obtaining technical help before an accident translates into a law suit. Yet few defendants do.

Team Effort. Another peculiarity is the rarity of team efforts, much less effective ones. In only one case of mine did the defendant’s attorney assemble an entire team of planners, engineers, managers, trainers, supervisors – all of whom I met with to make sure they were “on the same page.” The attorney developed such confidence that she settled the seven-figure case for five hundred dollars. As in most things, there is no substitute for preparation. And an individual is no match for a team.

Consulting versus Expert Testimony. In more than 50 accident cases, I’ve testified only twice. This is because most cases are won or lost long before they go to trial. The riveting expert testimony one sees on T.V. is rare: The most valuable service an “expert witness” can provide is pre-trial analysis. Once one figures out what happened, and who (if anyone) was negligent, the rest is child’s play. Attorneys may need expert testimony. But they almost always need technical expertise and perspective.

Analysis versus Reconstruction. Where collisions occur, many attorneys hire a ”reconstructionist” to measure the skid marks and photograph the accident scene, but conduct the analysis themselves. This is unfortunate since many errors and omissions occur in policy-making, planning, hiring, training, supervision, monitoring and driver assignment. In assembling a defense team, it’s a good idea to examine the entire system, exploring every function from marketing to fueling. After all, your opponent might.

Knowledge and Perspective. I’m constantly surprised at many attorneys’ preoccupation with an expert’s credentials. In a recent transit case, both the plaintiff’s expert and my attorney’s engineering expert had doctoral degrees (“Ph-D’s”). Yet both described centrifugal force as a function of turning speed (it is a function of acceleration times the degree of arc). And neither (nor anyone else) noticed that one of the three passengers thrown through the bus’ rear door was seated.

Intelligence and Effort. Some attorneys are clearly smarter than others. And the range of charisma is vast. But differences in intelligence and inspiration are not key factors. What matters most are perspective and effort. All things equal, a brilliant penny-pinching attorney who doesn’t engage a good technical expert – or who doesn’t listen to him – will generally lose to a mediocre attorney with sound technical help and a thorough effort. Considerable advantages also accrue to the party that acts quickly. Whoever said, “Good things come to those who wait” never defended himself in court.

Ned Einstein is the president of Transportation Alternatives, a consulting firm specializing in system\C2 and vehicle design, operations,\C2 performance evaluation and forensic accident analysis. He may be reached at einstein@transalt.com.

Publications: National Bus Trader.