Isolation, Perspective and Misplaced Pride: Courtroom Strategies and Practices

Working largely as a safety consultant and expert witness, certain practices – particularly in the forensic arena – have always troubled me. I would like to share a few of them with you in this installment. In these hard times, modifying the dynamics within our industry is more important than ever. For we have little to waste, and much to change. This is particularly true when one finds him- or herself at the wrong table in a courtroom. Here are some hints that you can use, and some that you can expect your opponent to use.

Percentage of Work for Plaintiffs versus Defendants

Most expert witnesses do considerably more work for plaintiffs than for defendants, and defendant’s counsel often try to exploit this reality when cross-examining a plaintiff’s expert witness in a deposition or at trial. The implication, of course, is that the expert is a “hired gun” for the plaintiff’s attorney. This tactic never works on me: I usually respond by stating, “Naturally, I do most of my work on behalf of plaintiffs.” This response creates a perilous conundrum: If they do not follow up, they will appear incompetent. So most fall into the trap of asking me why I said ‘naturally.’ I then go on to describe the army of technical personnel – drivers, training instructors, schedulers, dispatchers, supervisors, operations managers, mechanics, safety directors, ad infinitum – to which the defendant’s counsel has unlimited, free and almost endless access. Frankly, such attorneys deserve this verbal spanking, and the embarrassment that usually accompanies it when they quickly change the subject. Many dynamics of litigation greatly favor the defendant, even in civil suits, where the notion “innocent until proven guilty” is not a cliché. Regardless, attempts to assassinate an expert witness’ character generally explode in the defendant’s attorney’s face – and in your pocketbook.

Further, such explorations often open up a Pandora’s box that turns the tables on the attorney. For example, when asked about my rates, I always manage to squeeze in the fact that for every hour of billable time (for which I’m taxed, as a New Yorker, a total of 45%), I probably spend two or three hours of non-billable time – including not only reading 10 to 12 trade magazines a month and attending several conferences a year, but writing articles monthly for two magazines, making presentations, and doing a considerable amount of pro bono work in general, as well as staying in touch with a crafty and knowledgeable network of associates. In contrast, I do absolutely nothing to help any plaintiffs’ organizations. I do not attend ALTA conferences, write articles for legal publications, or even attend workshops or conferences frequented by attorneys. Hearing all this does not help the defendant or his or her attorneys. Instead, this dialog backfires in the face of the defendant’s attorney who began it. I experience these faux pas over and over again. If you can manage to squeeze some legitimate input into the process, make sure your counsel does not employ such tactics.

Fragmentation of Thinking and Decision-Making

A service provider’s passenger becomes involved in an incident when he or she is injured. The provider immediately notifies his insurance carrier, and the carrier appoints an attorney to handle the defense. Rarely is the service provider consulted about this critical decision, but instead, is stuck with an attorney he or she does not know, and one who not only takes its marching orders from the insurance carrier, but who furthers the carrier’s agenda – not yours. I have been involved, on the defense side, where a carrier providing the catastrophic coverage literally racketeered a school district into handing over its $1M of self-insured policy limits simply to minimize the insurance carrier’s risk. Never mind that I and my fellow expert would likely have walked the defendant out of the case, Scott-free. Instead, many of that school district’s teachers are now seeking opportunities in other venues where they might have a fair shot at a salary increase.

Another frustration I encounter regularly while working on the defense side of a case is the settlement of cases that are almost certain to be decided in the defendant’s favor. Again, the attorneys usually do not “make the call.” But when their employers (i.e., the insurance carriers) do, they never, ever consult their technical experts, like myself, regarding their chances of success. In what is now approaching 400 cases, I have never once been asked by an insurance carrier or its client what I thought about the client’s chances. While an attorney’s perspective may be valuable, and there are often obscure legal considerations that skew justice, and which differ considerably from state to state, I cannot help but think that some input from a technical perspective would be of value – especially once someone like myself has been advised about the litigation quirks of the given venue.

Human Nature and Dysfunctional Thinking

As I have stated many times in NBT articles and elsewhere, the best way to reduce liability exposure is to not have accidents in the first place. This is, sadly, not where many, or perhaps even most, service providers focus their attention. As I pointed out in an important article I authored for School Transportation News, service providers can find ways to reduce their liability exposure by compromising safety, and exposing their passengers to greater risk. A common ruse employed by many school districts is to instruct their students to arrive at their bus stop at least five minutes before the bus is scheduled to arrive – instead of instructing those who must cross to the bus stop to remain at the “waiting area” until the bus arrives with its accoutrement of crossing equipment to assist them in crossing. When such trade-offs are illuminated by plaintiffs’ expert witnesses, the jury can easily become inflamed. A similar ruse that rarely works is transforming one’s employees into “independent contractors” – a bad ploy since this generally eliminates any form or degree of monitoring, and on their own, drivers rarely comply with the regulations that their employer would likely have forced them to obey were they operating under his or her control.

Another curiosity I find that I doubt is universal in other countries is the absolute refusal to engage an expert as a consultant to fix the problems he or she so clearly identified. This is true regardless of which side of the case (plaintiff versus defendant) on which an expert witness works. One would think that a defendant whose operation was just exposed as having 30 or 40 flaws might think about contacting one of the two experts (once the case has been resolved, of course) to ask whether or not that individual might be willing to assist the defendant, on a consulting basis, to eliminate its system’s shortcomings and reduce its risks. I have never once received such a call, and strongly suspect that, here in an America that is sinking fast, such a call will never come.

This relationship between such intense arrogance and impunity, and the notion of “sinking fast,” cannot be overstated. Societies do not deteriorate by accident. They deteriorate from poor judgment, and often from the latitude to do things against their or their own interests, often for childlike personal reasons.

Industry versus Community

Motorcoach industry members should take note that members of the yellow bus world prevent\C2 themselves as the school bus community, while we present ourselves as the motorcoach industry. This is not a meaningless distinction. The school bus community boasts that it welcomes governmental oversight, particularly by NHTSA. In contrast, the motorcoach industry often considers the FMCSA its enemy, and particularly in matters involving safety – such as improvements in hours-of-service regulations — our umbrella agencies actively lobbied against this regulatory agency to remain mired in a set of regulations now more than 70 years old, even while the trucking industry and its unions embraced these changes, and while our industry’s catastrophic accidents make far more glamorous news stories. I always find it amusing when bus and coach drivers describe “truckers” as cowboys. This is because I think about who runs the ranch.

In these hard times, working together as a team, much less a community, is not a luxury we can simply squander. It is a necessity for our survival. Two days ago my firm’s healthcare coverage practically doubled (we will soon be changing providers). Last week, my TV cable provider decided to show certain programs only on high definition TV sets. Recently scammed by my telephone provider – which literally racketeered my firm immediately following 9-1-1 when we had no telephone service at all – with a bogus $500 phone bill representing no service we have even heard about, much less possess, I was just about to switch over to my digital provider’s telephone service. Not now.

If there was ever a time to wake up and realize we are not living in Sweden, that time is now. Given our urban form, buses and coaches can replace automobiles only so far. Otherwise, if we adapt or echo the shenanigans of most of corporate America, in or out of the courtroom, the U.S. motorcoach industry will become a skeleton that eventually fades into a memory. The subsidies that rescued our transit industry in the Sixties is so far over the horizon as to be unachievable. That life raft or bail-out lies over the rainbow. It is simply not coming. So you can now release your breath.

Our only chance and hope is to begin working together to achieve things that we seem unable or uninterested in accomplishing independently. Not having our revenue siphoned off by attorneys, obscene damage awards and insurance carriers could be an important start. If you can think of a better solution – I have suggested many in NBT articles over the past decade – I would like to hear of them. But we had better start somewhere. Forget about what takes a village. The lesson is that a community has a chance. In modern America, as we have witnessed recently in the housing and banking sectors, an industry has far less of one.

Publications: National Bus Trader.