I remember a well known PI lawyer telling me one time to “stay away from premises cases” because the plaintiff “always” bears some portion of fault. Many years later and several of our own trials have shown that thought to be FALSE. This is especially true in grocery store and sidewalk cases. In order to win these cases, I believe you need to have an attitude shift.
The typical defense lie is that a plaintiff has the duty to watch their feet while they are walking. This premise is not true, and normal people (i.e. jurors) don’t do it and if properly explained, will not require your plaintiff to do it either. In one case I had against Kroger, their “expert” testified that the danger upon which my client fell was “open and obvious” and that my elderly plaintiff should have avoided the dangerous condition. During a video deposition of the defense’s expert, I set a trap for them while waiting for the expert and his defense counsel to come into the defense’s deposition room. I had strategically placed a quarter, two dimes and two pennies on the burgundy carpeted floor, just in the exact walking path from the conference room door to the expert’s seat of honor. I introduced myself to him when he entered the room, and sat down. I don’t think he saw them.
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As we were set to begin, the defense lawyer asked the expert to step outside because he had one more thing to tell him. The expert leaves, walks over the money, is out for a few minutes, and re-enters the conference room and takes a seat. I figured, heck, the defense lawyer saw the money on the ground and told him to make sure he observed it too.
We started the deposition and after about 20 minutes or so, I asked the expert to summarize his opinions, and it went something like this:
A: The defendant failed to look where she was going and put her foot right into the dangerous area and fell down, hurting herself.
Q: Did she have an obligation to look at her feet?
A: Yes, of course. We all need to watch where we walk.
Q: Do you hold yourself to that same standard sir?
A: Yes.
Q: I am going to ask you a favor please sir. I’m going to ask that you look at me directly; don’t look left, right, up, or down for the next 30 seconds, agreed?
A: (nervously…) Sure.
Q: When you came into this conference room, you sat in your chair; then Mr. Spicer asked you to go outside, which you left this room then returned shortly thereafter. Have I stated that correctly?
A: Yes.
Q: And in doing so, you walked the floor between the chair and the door, about 10 feet, 3 times, true?
A: Yes.
Q: And could you please look into this video camera and tell the jurors watching you exactly what it was on the floor, if anything, that was out of place or unusual?
A: (11 seconds of eyes darting, looking at defense counsel, objection by Mr. Spicer)
Q: I’m gonna ask you to please answer the question sir without cheating. What, if anything, was on the floor when you walked over it 3 different times?
A: (nervous laugh) I guess you got me.
Q: Look now…what do you see?
A: …47¢
Et voila! All of his future wailings of “she shoulda seen it” Bull**** didn’t matter anymore. The case was over for the defense. This case eventually settled at the client’s directive, but it should have been tried.
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One of my best pieces of advice to young lawyers is to spend time THINKING and ENVISIONING how the deposition can go. Most days, I am up at 5 a.m. outlining the upcoming deposition and just closing my eyes of thinking, “Why is this expert wrong?” and “What is the TRUTH?” Did I just show up and think of this? No. I reviewed the expert’s report in my case. I read other depositions I was able to get off the TTLA list serve, and I knew the extreme BS this guy was capable of. You will think of many great possibilities. Most will likely fail. Most of mine do. However, when you keep swinging, you are eventually going to get a hit. Was there a chance this expert could have seen the 47 cents on the floor? Very much so. What was the downside? If he sees it, so what. It won’t hurt me much, if at all. But the payoff was great when it did work.
Be thinking of other ways you can SHOW the jury the truth. It is powerful.
Keep trying your cases!
John
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