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Rules in Injury Trials

I wrote this brief blog/article primarily for me, Eric Roy, and my staff's benefit. I learned these concepts come from Rick Friedman and Patrick Malone who are two of the most successful trial attorneys in the country. For a more thorough and authoritative reading on the subject I refer you to any of their publications where they delve into these concepts at length.

As discussed in other articles, ambiguity and uncertainty are our worst enemy in a plaintiff's injury trial. Ambiguity and uncertainty are likewise the defense's best friend. A confused jury is not a plaintiff's jury. The defense will do the best they can to muddle the issues and leave the jurors in a state of uncertainty. An uncertain jury will refrain from action whereas a confident jury will allow a large plaintiff's verdict. In order to cut through the ambiguity and uncertainty we need to establish rules and then demonstrate how the defendant violated these rules. The rule violations must have caused injury to our plaintiff and future rule violations will injure the community. Thus it is in the juror's hands to rectify the wrongs which have already occurred to the plaintiff but more importantly to make a statement that these rule violations will not be tolerated going forward so as tor protect the jurors and their community from future danger. Protection of self and family is your juror's ultimate underlying goal.

Thus we first need to establish these rules. I have discussed what makes a good rule in other articles so here I will discuss where we can go to find some good rules. First and foremost we should have an ongoing list of rules. We begin creating this list at the beginning of trial preparation and as we progress up to and through trial we continue to edit our list of rules as new evidence is acquired and new ideas develop. We can refer to the law for rules, this means case law, statutes, and other regulations. When we have a law or regulation on point that directly says what is to be or not to be done we have found a credible source for a rule. Other good places to look include policy and procedure manuals, industry guidelines, ethical codes, and of course testimony from the opposing party formed at deposition. In fact, wherever you find the rule, I suggest that you take the additional step by locking in the defendant's agreement with the rule, as found in some authoritative source, by way of deposition. This only strengthens your rule and makes your cross examination less defensible.

Of course, you can also find your rules in jury instructions. To this end we want to begin preparing draft jury instructions early on in our trial preparation process. We should be incorporating our rules into these instructions. When the jury instructions are finally delivered to the jurors it is critical that your rules are synonymous with the jury instructions. In this way the jurors will clearly see that the defendant's actions were at odds with the law. Rick Friedman really pushes this idea of preparing your jury instructions well in advance of trial. The reason for this is that once you have prepared your jury instructions your thoughts are organized as to what evidence is relevant for your case. After developing the instructions you can determine what facts you need to prove in order to demonstrate rule violations and thus what you need to win the case.

When you review jury instructions see you how you can rephrase the jury instructions into rules. This means you will need to first begin by making the jury instruction a more succinct statement which is easy to understand. Then of course you need to proscribe conduct in the statement itself. In other words the rule needs to direct the defendant to take a certain action or to refrain from taking a certain action. Instead of rephrasing the jury instruction for the purposes of rule development you may be able to isolate one or two sentences from within the jury instruction which creates a rule in and of itself. You might be able to fashion more than one rule from one jury instruction.

You will need to be editing and recrafting your rules as evidence comes in as trial approaches. After you conduct your depositions, in particular, you will have a better idea of how to phrase your rules. You want your rules to be written in a way which clearly demonstrates, by the evidence, that the rules were violated. Thus after you conduct your deposition go back and look at your rule. Juxtapose your rule with your deposition testimony in a way which shows a clear and strong agreement with that phrasing of your rule and corresponding clear violation of that same rule.

In addition to statutes and regulations, another good source for rule development lies in textbooks and articles regarding defendant's appropriate conduct. Once you find some firm rules you can then use them in trial. You can impeach hostile witnesses with these textbooks and/or articles but better to do so at deposition first. Lock in the witness's testimony by using the authoritative text then use their statement combined with the language in the text at trial to show the validity of the rule. Another smart place to look for rules lies in any contract which may have existed between plaintiff and defendant. This contract likely contained duties and codes of conduct which the defendant was required to provide to the plaintiff. This will require a lot of work on your part. You may want to incorporate the help of a research assistant to help you sift through the large amount of information.

Rick Friedman proposes that you draft proposed rules into your complaint. This is really smart, and frankly I had never thought of it before. Draft these rules into the complaint in the hopes that defendant affirmatively answers some of the allegations. This will help you to establish some firm rules early on in the case. Often times the Defendant is asleep this early on in the case and will make such admissions without realizing their significance until you use them against him or her at trial. Of course you may choose to not show your hand so early on and rather wait until deposition to solidify this agreement.

When we think about rule development we need use the principle that a certain activity is dangerous unless basic safety rules are followed. This principle can be used for any sort of occurrence. For instance, "driving a car can be dangerous unless basic safety rules are followed". "Pushing a heavy liquor cage through a casino can be dangerous unless basic safety rules are followed". This is a basic principle that applies to what we might deem ordinary activities. These principles can then be refined such that "A driver should not text message while driving" or "an employee should look where he is going while pushing a heavy liquor cage through a casino". Put another way, "a driver who text messages while driving needlessly endangers the public".

During trial, it is essential that you paint a strong picture of what the rules are and why they are important. Thus, though you should introduce all of your rules in opening and tell the jurors that the defendant violated these rules, do not stop at opening. Use cross examination as a tool for eliciting first why these rules are important, from the defendant's own mouth. Use your expert witness on direct to explain why it is important that these rules be followed. Have all your witnesses, both hostile and friendly, state all the different bad things that can happen when specific safety rules are not followed. When using examples, show how regular members of the community can be harmed by the defendant's failure to follow safety rules. In this way you personalize the danger to the jurors. This way the jurors own sense of safety is in jeopardy by way of continued future safety rule violations. Explain to the jurors that their job is not just to put the plaintiff back into the shoes he was in prior to the injury but more importantly the juror's job is to prevent this type of safety rule violation from happening in the future. Explain that the jurors are the ones who can send the message to the community that this type of behavior will not be tolerated. Explain that the way the jurors can send this message is by way of a strong plaintiff's verdict.

Categories: Personal Injury