Cleaning the Slate

Cleaning the Slate

Cleaning the Slate: Using Witness Strengths to Dispel Juror’s Pre-Conceived Notions

Smith Freed Eberhard Partner Catie Becker recently obtained a defense verdict from a trial where liability and damages were disputed by way of a thorough analysis of Plaintiff’s medical records coupled with a concerted effort to dispel the pre-conceived negative attitudes toward elderly driving among the jurors.

The Background Story

Ms. Becker represented a 96 year-old client who passed away a few months before trial.  Ms. Becker’s client was confident that, at the time of the incident, she was traveling through a green light and that the co-defendant failed to yield, turned left in front of her, and, in so doing, pushed both defendants into plaintiff who was fully stopped at a traffic light.

Co-defendant argued that, in addition to speeding, Ms. Becker’s client was too elderly to drive and, had she been younger and more alert, she could have avoided the collision.  Plaintiff also claimed that he required surgery to alleviate his continued neck pain caused by the accident.

 The Strategy

During voir dire questioning, it was clear that the jury, based on their own experiences, were concerned with elderly persons driving.  As such, Ms. Becker immediately alleviated this concern through her opening, by highlighting the testimony that the jury would hear via a video deposition of Ms. Becker’s client. The testimony would prove that she was not confused or slow at reacting, as she had very detailed and clear testimony as to the streets she traveled and the route she would have taken if not for the accident. The testimony would also include an independent witness who would testify that the light was green and that there was no way for Ms. Becker’s client to avoid the accident.

Ms. Becker also challenged Plaintiff’s claims that he needed future surgery.   Ms. Becker’s medical expert stated that Plaintiff’s continued issues were due to his poor posture.  Plaintiff had never shown his treating providers the prior records and his testifying chiropractor claimed he had no prior issues.  Ms. Becker was able to impeach him with a prior record, that otherwise would have been barred because Plaintiff was asymptomatic in the couple of years before the collision, which  showed that Plaintiff did have prior neck pain due to posture issues.  Plaintiff also displayed forward head posture throughout trial which Ms. Becker’s expert pointed out during his testimony.   Plaintiff also retained a rebuttal expert who, due to time issues, was subject to a video deposition in the middle of trial.  Ms. Becker’s cross-examination was so effective that Plaintiff’s counsel decided not to show the jury the testimony.

The Outcome

Ms. Becker received a defense verdict, and the judgment that Co-defendant faced was less than pre-trial settlement offers.  The jury rejected Plaintiff’s claims of future treatment and did not believe that the accident caused his continued complaints.