The more crazed by tight schedules, regulatory requirements and sloppy workmanship we get, the more exaggerated become our risks. Sometimes, the problems can be so small they are practically unnoticeable:
Waist-high, tubular steel horizontal stanchions filled the front section of a transit bus’ passenger compartment, sealing off driver’s seat and pouring down both sides of the stepwell. However, the 30-inch section alongside the driver was different: Instead of being welded to or integrated into the cross-sections of vertical stanchions, the small forward end of the driver’s “gate” curved down 90 degrees, forming a sleeve that fit over the collar at the top end of a short vertical stanchion reaching to the floor. These sections locked into place when a tiny pin on the collar – three-eighths of an inch in diameter – popped into a small hole in the “sleeve.” To release these sections, and lift up the gate in order to let driver out of his or her seat, the driver had only to push the tiny button and pull up the sleeve. Of course, designed as it was, once these two sections were disconnected, the gate not only rose up two to three feet (at the forward end), but pivoted forward or aft at least five inches.
To a bus passenger unaware of the “gate” section of these stanchions, the tubular gate section was visibly indistinguishable from the rest of the structure. So, walking forward toward the stepwell, and grasping it with one’s left hand, seemed not only natural and intuitive, but practically subconscious. Unfortunately for one passenger doing this, the driver had failed to bother inserting the pin on the collar into the hole in the sleeve. So when the passenger grabbed the gate section, it lifted up several inches, throwing her completely off balance. Because the now-unattached section also moved laterally, its forward movement helped pitch the passenger down the stepwell.
Peer Pressure and Impunity
While an avid supporter of bus drivers for decades, and an advocate of higher wages and more rational working conditions, I have also been disappointed by the things poor drivers manage to get away with – on many occasions when they do so deliberately. But even when they make occasional mistakes, their “corporate culture” coupled with the risks of large damage awards or settlements strongly encourages drivers to deny their roles in these errors and omissions. So getting a driver to admit that he failed to properly pop a small button into a tiny hole is unlikely. Instead, extracting the obvious truth from such a situation falls on the combined shoulders of the victim, his or her attorney, an occasional eyewitness, and an expert witness like myself.
Accident victims typically have a tough time explaining their mishaps, much less in grueling cross-examinations conducted by highly-skilled and articulate defense attorneys whose abilities to “break down” rational explanations are honed through decades of practice and thousands of trials. These individuals have other advantages – not to mention the favoritism they often receive from judges, and a combination of charm and charisma that often hypnotizes jurors not given a fair chance to learn about all the evidence. Equally problematic, of course, is the fact that, if they knew what went wrong with what they gripped, stepped on or fell over, accident victims would not likely have done so to begin with. So the causation of their injuries may be as mysterious to them as it is to the jury… With even less information at their disposal, eyewitnesses are often useless – where their guesses, imprecision and poor memories do not actually hurt the victims as their accounts are disparaged, and their integrity humiliated by skilled defense attorneys.
The plaintiff’s expert witnesses have a different set of challenges and circumstances – including some advantages. First, they are permitted to objectively and often systematically examine the evidence – which in cases like the example cited above, includes examining the bus itself. Secondly, they often possess considerable knowledge and experience about multiple aspects of transportation system planning, design and operations, and vehicle selection and specification. Thirdly, they are generally allotted enough time to study and think about the evidence, and paid well for their time to do so. Finally, they often possess the knowledge and skill to articulate the technical issues to a jury in simple, understandable terms. Particularly when the defendant’s case is weak, its counsel is ill-prepared or, worst, when the facts do not lie in the defendant’s favor – the plaintiff’s expert may have an easy time rebutting the malarkey invented by defendant’s counsel to disparage his or her testimony.
Imperfect Verdicts and Imperfect Conditions
Thanks to modern technology – particularly high-quality and easy-to-operate digital cameras – is it often possible to depict and explain even the tiniest tidbits of evidence. But even with facts and evidence so consistent and compatible that they seem almost inseparable, convincing a jury that an incident was the defendant’s fault is no walk in the park. When the evidence is really troubling, deep and dysfunctional denial (what I call the “3D view”) may set in: After all, who among us would be comfortable to learn how dangerous, risky, sloppy and unaccountable their public services can be. Otherwise, juries also have the impunity to simply dislike the victim, much less his or her less-than-perfect explanation of the incident and its causation. Informal post-trial jury polls continuously reveal verdicts reached with little or no consideration of, or interest in, the evidence, but instead, verdicts influenced largely by personal feelings about the victim in general, and/or his or her counsel and expert witnesses. Further, by the time many victims reach their day in court – sometimes six or seven years after the accident occurred – they look and move superficially like they did before the incident.
The principal exception to this last caveat appears to involve wheelchair users: I have helped many a wheelchair user score millions when they wheeled themselves into court seemingly little or no worse for wear than they were before the incident that brought them to court in the first place. One unusual reason for this exception is that the evidence in such incidents – inoperable or incompatible securement equipment, driver securement errors, and tight schedules – is easy to demonstrate and difficult to defend. Another reason for such findings is the unlikelihood that the victim could have contributed to the incident – whereas an able-bodied passenger could conceivably have simply slipped on his or her own accord, or paid too little attention to moving parts like doors and kneeling features.
Truth, Lies and Confessions
Within the mix of participants in a trial, the expert witnesses are often the only reliable and truthful sources of information. If they are not, a written record of their poorly-conceived explanations may follow them around for the duration of their careers. Accident victims (or “plaintiffs”) tend to constitute a mix. Some tell the truth even at their own expense. More commonly, accident victims and eyewitnesses do not know where their observations ended and their extrapolations began. Savvy defense lawyers are quick to jump on these contradictions, and well-meaning victims and eyewitnesses can appear like pathological liars when they cannot separate what they observed from what they simply concluded.
In contrast, bus drivers and many other transportation professionals can be counted on to twist and spin the truth: They rarely bear any economic risk (no plaintiff’s attorney expects to collect money from a driver or other member of a transportation management team), and they have the luxury of dancing around scores of questions: “I do not recall” is easily the most common response to almost any question posed by the victim’s counsel. More importantly, these witnesses know how much money is often at stake if their party loses the case, and they clearly understand the consequences that their successful testimony can have on their continued employment, much less future promotions.
Filtering the truth from all this clutter, deception and slither can be a daunting task – especially where the case is not terribly interesting to begin with, and its participants must compete, realistically, with the array of film and TV actors from whom jurors glean most of their courtroom knowledge. At the same time, being an actual juror is a special privilege – even if most U.S. courts treat them like manure. (Try telephoning the court about your unavailability to serve on a particular day!). For the brief period an average citizen gets to serve on a jury, he or she possesses the ability to sift out right from wrong. Who you are, what you do, how much you earn, or even how famous or recognizable you may be, has no bearing on a jurors’ relative power or influence with respect to that of his or her peers. Many jurors recognize these moments as the rare opportunities they are, and serving as a juror can be a citizens finest moment. So as stupid as many attorneys think most jurors are, I have always held considerable respect for jurors – even though I have, on occasion, been disappointed by their conclusions and findings.
Playing the Cards One is Dealt
As noted, a long list of concerns and shenanigans can sidetrack a trial from what should be a simple evaluation of facts and evidence. All too often, these distractions produce unfair results. This is particularly true as the center of many cases involves an elongated debate between a bus passenger caught off guard – usually poor, often marginally educated, and typically confused or not properly informed – and a slick, well-dressed, articulate and sometimes mesmerizing attorney whose full-time job involves verbally beating up, embarrassing, humiliating and discrediting accident victims. As one might expect, such debates often yield unfair fights. But if the technical professionals do their jobs responsibly, jurors have a decent chance of separating myth from reality. But even so, they must often try hard to do so. When it counts, they must pay importance to, and understand the significance of, even the smallest piece of evidence. “Little Things Mean a Lot” is a swell old song. But in a court of law, little things often mean the difference between a victim being compensated for having his or her life ruined – or perhaps a son, sibling or parent losing a life altogether – and a handful of transportation professionals striding out of the courtroom with a wink and a smirk.
Accident victims can lose in court when the errors or omissions causing their incidents are visible, explainable and irrefutable. They have far more difficulty when the causation is tiny and almost unnoticeable. But both classes of victims can win their respective lawsuits. So it is imperative that drivers and their management pay strict attention to the details, subtleties and nuances that can lead to mayhem and carnage when they do not. A safe driver is not one who skillfully gets away with things. A genuinely safe driver tries to get away with nothing, but instead, remains focused on the tiniest of details.
As law suits continue to provide the principal means of compensating accident victims for their suffering, drivers and managers who watch and push the tiny buttons will more likely remain employed. As a driver’s file fattens with accident and incident reports, the risks of retaining him or her increase, often exponentially. So more and more, what is left of the fat wallets just emptied out to compensate an accident victim will likely be used to employ drivers who are the most diligent and careful, and whose files are thin with criticism.