By Randal Kelly, TLC 2010
I took a verdict in my first TLC trial in March. It was a case I inherited from a TV advertiser that I didn’t want from the start. It involved some bad facts on both liability and damages. It was unclear who was at fault and there was a longstanding history of drug and alcohol addiction. My new client Mike was basically a guy who hadn’t done much in his life to help himself, and he wasn’t very likeable.
Things got going badly at the first client meeting. Mike and his wife Vicky are the kind of couple who talk at the same time so that they can disagree with what the other one says. They were angry and demanding, and coming to a solid understanding of exactly what had happened to them was impossible. All I knew for sure is that Mike had been trying to pass a snowplow, the plume from the plow blinded him, and then he was rear-ended by a semi after slowing his vehicle.
Things got worse when I called the investigating police officer. Almost before I could get the words “you probably don’t remember this collision” out of mouth, the cop let me know he was still looking for payback. Given my recent first impression of Mike and Vicky it didn’t take much skill to reverse roles with the cop. And even though he took the time to meet me for coffee, I couldn’t budge him away from his view that the collision had been Mike’s fault. Mike and Vicky had been belligerent and disrespectful and the cop wasn’t going to let that go.
The collision involved a high closing speed between the truck and Mike’s car, which my accident reconstruction engineer estimated to be between 25-30 mph. The force crushed the rear of Mike’s car and launched it off the highway at almost this exact speed differential. Another snow plow had come from behind the collision and cleared the evidence of point of impact, but the marks that were available demonstrated that the crash occurred in the right travel lane, basically front bumper to rear bumper. There also was no dispute that Mike had been trying to pass the forward snow plow in the right travel lane and had been completely blinded by slushy snow that his wipers were incapable of clearing from his windshield.
The trucker’s version of the crash was that Mike had cut in front of him in order to pass the snow plow, and after several failed attempts, Mike lost control, when onto the road shoulder, then returned to the travel lane where he slammed on his brakes. According to the trucker, Mike was stopped or nearly stopped when the collision occurred.
Mike unfortunately had two versions of what happened. He testified in deposition that he had not lost control before the impact, and that he had only let off the accelerator for a few second before the collision. The emergency room doctor recorded on the day of the collision that Mike said he was stopped completely in the middle of the highway before being hit by the truck.
Mike suffered what turned out to be severe injuries. He tore the rotator cuff in his right shoulder, which required surgical repair. He also developed two herniated lumbar discs, which were surgically replaced with prosthetic discs. He was still complaining of ongoing disabling back pain three years after his surgery, and after trials with several narcotics, Mike had been proscribed methadone, which he will most likely take for the rest of his life.
The discovery phase of the case was unusually combative. The trucking company and its lawyers objected to producing virtually everything, and key information, such as the satellite messaging and positioning data, had been destroyed. The trucking company also refused to produce the data from the truck’s electronic control module, which would have recorded the truck’s speed at the time of hard braking, the speed at impact, and the elapsed time between these two events. According to the discovery responses, this “black box” information had not been downloaded after the crash.
I filed two motions to compel in order to get any discovery, and ended up in a hearing in which I was admonished by his honor for the tone of my communications with opposing counsel concerning their discovery tactics. I was basically scolded for not being nice enough to lawyers who were caught hiding discovery documents and failing to follow the rules. It was at that point in the case that I had a TLC epiphany – I realized that the only people that I could ever count on to help Mike was the jury – my fear of trying this case had suddenly shifted.
I did get the discovery I needed to tell the story of the bad guy. The trucker had been through a hurry-up training program and had never been given over-the-road training in winter driving conditions. The day he hit Mike was his 61st day on the road as a commercial truck driver and his first day driving on snow and ice. The trucker also had made a statement that he had been inattentive just before the crash with his CB radio. The trucker had been fired immediately after the crash.
I knew before going into trial that my judge was the kind of person that is best expressed by the word that Milton Grimes has promised not to say anymore. Even so, things got way worse than I expected.
It became clear on the first day that all the “character” evidence was coming in, including extrinsic medical records and police records of the intravenous drug use and other “bad acts”. When I was mentioned to his honor that there was a specific rule of evidence that forbid this kind of approach in a civil damages trial, he informed me: “It’s not my problem that you have drawn a bad case Mr. Kelly.” That stirred-up some internal dialogue.
Mike had lots of bad acts going for him. He was a former coke addict who had contracted hepatitis C from a dirty needle. He was also a chronic alcoholic, and he had dabbled in domestic violence with Vicky. He had a prior felony, he got a DUI four moths after the truck crash, and he had three failed efforts at detox, two of which came after the truck crash. He also had not worked in the four plus years following the crash, and he had never made more than $25,000 a year when he was working.
His honor began interrupting me during voir dire and never stopped during the five days of trial. He stopped me four times during the 20 minutes he allowed for closing argument, asking me to approach the bench twice like some errant school boy who needed discipline. Every single expert I called was interrupted and scolded by his honor during direct examination. He rolled his eyes and piddled with his books and his PC when I was presenting my case, and then looked absolutely riveted when the defense lawyers got to the podium.
The first night I was feeling like it was going to be the longest week of my life. I got some really great advice from Louise Lipman, who suggested that I try to figure out a way to take back the courtroom, and whatever else I did, to try to get the smile back onto my face. Things got better on day two.
I had offered to dismiss the trucker early in the case if the trucking company made him available for trial. The offer was refused and the defense showed up at trial with the trucker and his fiancé in tow, obviously planning to play that sympathy card. So, Tuesday morning I called the trucker out of turn and after being exceptionally nice to him, I asked whether he had been informed of our offer to dismiss him months ago. There was an objection that I had never heard before, a three part harmony involving a judge and two defense lawyers, and after a trip to the bench (woodshed in this case) where I was informed that this was a court and not a jury issue, the next thing I did back at the podium was move to dismiss the truck driver. Another trip to the bench resulted in his honor then informing the jury that the parties had reached an agreement of dismissal.
I asked the trucker six "isn't that true,” questions that told the bad guy story and sat down. The defense was not prepared to ask him any questions so they passed him until their case in chief. When the trucker came off the stand and went for counsel table I stood and mentioned to his honor that he was no longer a party and should be rightfully seated in the gallery with the rest of the spectators. You have never seen a more petulant look in your life than the face of that truck driver at that moment. We didn't see him again until the last day of trial and I called every witness I could out of turn over the next four days.
I got my smile back and I never once showed any anger or irritation at his honor. I did flip a defense layer the bird out of the sight of the judge on the last day of trial and that was fun. He called me out in the hall to fight, which was even more fun.
Every single TLC method I employed worked. I had set up a compassionate cross of the defense doctor, who was an accomplished assassin. It was easy to effectively destroy his credibility at trial while seeming quite reasonable and polite. I got off method a couple of times, and it was the anger taking hold of me. Anger took me away from the story every time. I need to work on the difference between feeling righteous indignation and feeling anger.
I missed a great soft cross opportunity because of my anger at being fucked-over in the discovery phase of the case. When the spokesman for the trucking company took the stand he spent twenty uninterrupted minutes telling the jury what a great guy he was, including his devotion to his wife and two wonderful children. What a picture I could have drawn of this nice family out for a Sunday drive, children in the back seat, oblivious to the ill trained and inexperienced truck driver barreling up from behind them at a 30 mile per hour closing speed.
I got some great theme advice from Louise, which I used for closing. I told the jury that I didn’t know how fast anyone had been going, because the trucking company had taken away the black box, and that they had to become the black box. I was interrupted by his honor whenever I used the word “I” in my closing, because what “I” believed was irrelevant. I had planed to use Gerry’s “Wise Old Man” parable to end my close. During my introduction that this parable was told to me by a man who had taught me more about life than anyone, his honor scolded me like he knew exactly whom I was talking about. So, I looked at him and I said, “Your honor, can I please just tell the jury my parable?” Before he could answer I looked each juror in the eye and told the parable. My eye contact told me that every one of them got the meaning of the bird being in their hands.
I asked the jury for $3 million. I had eye contact with each of them when I told them that I wasn't sure it was enough. It felt great to do that, because that was exactly how I had come to feel about the money.
The jury came back with a 51 to 49 % comparative negligence split in Mike’s favor. But they were cruel to Mike because of the character evidence and gave him $300,000 and change for economic damages and not one penny for pain and suffering. His honor might just as well have erased a zero off the verdict form.
The verdict gets Mike a new damage trial before nine out of ten appellate courts. My early efforts to get the trucking company to bump-up the verdict and settle with Mike have been ineffective, so I’m filing an appeal. Who knows, maybe the case settles before we come back and do it again.
I have mixed feelings about the verdict. I had trouble admitting my true feelings about Mike and Vicky. I kept pussyfooting around the obvious – that they were not very likeable people, and that I did not like them very much. I was representing Mike because he was a human being, and no matter who a person is, they don’t deserve to be run over by a truck driver who had no business being out on the highway. I feel that if I could have been more honest I could have called-out this jury’s bias before they got into the jury room, which would have resulted in them giving Mike more money.
I have never had more fun trying a case in my life. I took strength every day knowing where I was coming from. I feel like I am becoming a TLC lawyer, and the confidence I drew from that was profound. I believed I would win this case.
