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

Claims Alleged: Automotive Defense; Personal Injury

Injuries Alleged: Back and Neck Injuries

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

The Overview

A Smith Freed Eberhard attorney 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

Smith Freed Eberhard represented a 96 year-old client who passed away a few months before trial. The 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 and turned left in front of her. In so doing, they pushed both defendants into plaintiff who was fully stopped at a traffic light. 

Co-defendant argued that, in addition to speeding, the 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 jury selection questioning, it was clear that the jury, based on their own experiences, were concerned with elderly persons driving.  As such, the defense immediately alleviated this concern through its opening by highlighting the testimony that the jury would hear via a video deposition of the client. That 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 the driver to avoid the accident.

The defense included challenging plaintiff’s claim that he needed future surgery. Medical experts for the defense had concluded 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. Plaintiff was impeached with a prior record (that otherwise would have been barred because Plaintiff was asymptomatic in the couple of years before the collision) that showed that Plaintiff did have prior neck pain due to posture issues. Plaintiff even displayed a forward head posture throughout trial, which defense experts pointed out during his testimony. Further, plaintiff had retained a rebuttal expert who, due to time constraints, was subject to a video deposition in the middle of trial. The defense’s cross-examination was so effective and impactful that plaintiff counsel elected to forego showing the jury that testimony.

The Outcome

Smith Freed Eberhard achieved yet another defense verdict. The judgement faced by the co-defendant was less than pre-trial settlement offers. The jury also rejected plaintiff’s claims of future medical treatment as it did not believe that the accident was the source of his continued complaints.