Playing Zone Defense

No, this is not an article about NBA rule changes. Its about defending yourself in a law suit. Tort cases are almost always presented man-to-man: Plaintiff’s attorneys devise a game plan (complaints, interrogatories and discovery), try to break down opposing players (depositions), try to force concessions (settlement) and – if all else fails – try to influence the referees (judges and juries). Along the way, they might consult an assistant coach (expert witness). But rarely do they consult the players. Why don’t they? What happens when they don’t? What happens when they actually do?

Letting Your Opponent Call the Plays

Here’s the playbook for most accident defenses:

  • Defendant’s director or G.M. receives complaint from plaintiff’s attorneys
  • Defendant sends complaint to insurance company
  • Insurance company hires attorney
  • Plaintiff’s counsel requests documents
  • Defendant’s counsel stonewalls request, eventually honors it
  • Plaintiff’s counsel schedules defendant’s witnesses for deposition
  • Defendant’s counsel meets his clients at the deposition
  • Defendant’s management weaves a tangled web
  • Defendant’s driver “survives” the deposition from question to question

With such preparation, dialog like the following is hardly surprising:

Q:     “When did you first notice the car that cut you off?"
A:     “Not until it was in front of me.”
Q:     “How fast was it going when it cut you off?”
A:     “I don’t know.”
Q:     “Well, was it going faster or slower?”
A:     “Um, uh, slower.”
Q:     “So, it passed you because it was going slower than your bus?”
A:     “I can’t recall.”
Q:     “So, we agree then that you were speeding?”
A:     “I guess so.”
Q:     “Where did the car come from?”
A:     “From the left lane.”
Q:     “But, you just told me you didn’t see it until it was in front of you.”
A:     “Correct.”
Q:     “Well, how did you first see it?”
A:     “In the mirror.”
Q:     “You saw the car in the mirror when it was in front of you?”
A:     “I don’t remember.”

Such dialogs are often so dopey and twisted that even the attorneys can’t follow them. But they don’t have to: Five questions later, the driver will admit he kidnapped the Lindbergh baby and fired four shots from the grassy knoll. In contrast, had the driver had the opportunity to discuss the accident, analyze it, and then think about it, his tale might have been coherent, understandable or even sympathetic – even if his actions were not excusable. The point is, the plaintiff’s counsel and expert witness will figure out what happened anyway. But the driver’s lies, evasion and blather will characterize his negligence as far worse than it actually was. As we all know from bad television, once a witness is caught lying, he can’t convince the jury he’s wearing his own skin. Worst of all, his lying and bumbling will uncover errors and omissions in the management hierarchy far above him – where jurors are increasingly intolerant of negligence, and far less forgiving.

Constructing the Zone Defense

Several years ago, I helped a transit agency defend itself from a seven-figure claim in a crossing accident that paralyzed a high school student who dashed off the bus, ran in front and was struck by a passing car. When I examined the stop, and its placement within a remarkably complex intersection, I found them impeccable. I encouraged the attorney to set up meetings with a range of planning and engineering staff – individuals likely to be deposed by the plaintiff’s attorneys. As I suspected, their competence and sophistication were so vast that the stop selection and design process had become almost intuitive: They could not articulate a single one of the dozens’ of factors involved – even though the accident scene reflected their careful consideration of practically all of them. Of course, we could hardly argue in court that the stop’s safety characteristics illustrated the defendant’s mastery: After all, the plaintiff was transformed into a quadriplegic at this very spot.

What ensued from these interviews were several laborious discussions of the fundamentals of stop selection, intersection placement and stop design. With all her witnesses “on the same page,” and armed with a thorough technical command of the subject matter, the defendant’s counsel verily reeked of confidence. Several weeks later, she settled the case for $500.

Lessons and Clichés

A trial is indeed an artificial environment. And one could argue that many things that go on in it are less than perfect, less than reasonable, less than healthy, and less than just. But this doesn’t mean one should suspend common sense and common decency preparing for it. The lessons here are hardly new; we’ve heard them all before, many times: As in most things in life, an individual is no match for a team. The key to execution is preparation. Nothing pays dividends like effort. In order to learn, you must be willing to listen. And despite its sometimes considerable costs, the truth will indeed set you free.

Publications: National Bus Trader.