Evidence and Effort

I recently assisted a major national bus contractor in a case where its school bus allegedly plowed into a pickup truck waiting to turn left into a driveway from its single traffic lane. The bed of the pickup was totaled, with deformation all the way to the driver’s compartment. While not paralyzed, the whip-lashed driver was severely injured. Neither the driver of the bus nor any of its passengers were injured.

Malarkey and Mumbling

The plaintiff testified that she was waiting to turn left, with her truck’s brakes on, for over a minute, because the high-speed oncoming traffic was heavy and provided rare gaps at this un-signalized location. The defendant’s bus driver’s memory had deteriorated so radically since the incident that she was now living in a nursing home. In her deposition, the career bus driver did not know what an axle was. Given her condition, she did not testify at trial.

Perhaps assuming from the facts and plaintiff’s statements that negligence spoke for itself from the facts (res ipsa loquitur in legal jargon), the plaintiff’s attorney sought punitive damages. At the time of my engagement, even my counsel was willing to concede liability, and only engaged me to rebut the facts related to “the punitives.” So sure of his claims was plaintiff’s counsel that he did not even depose me.

Gambles and Goofs

After a grueling cross-examination of the plaintiff’s expert witness (the outline for which I prepared), and knowing my testimony was to come (as in most states, the plaintiff’s case in this one had to be presented first in its entirety), the plaintiff’s counsel agreed to waive its claim of punitive damages in return for the defendant’s admission of liability. The defendant’s counsel was forced to accept this deal as a practical matter: Since the incident, the driver had virtually lost her memory (she was currently residing in a “home”), and in her deposition, did not even know what an axle was. Understandably, she was excused from even testifying at the trial. And questions about the driver’s corrective glasses – which she was not wearing on the day of the incident – were never completely resolved.

After this deal was struck, defendant’s counsel still offered $75,000 in settlement. Declining this, plaintiff’s counsel sought a sum between $300,000 and $400,000. Neither this demand nor the defendant’s stipulation to liability swayed the jury: It awarded the plaintiff a mere $30,000.

This outcome demonstrates how precarious and free-wheeling many attorneys are.

Publications: National Bus Trader.