Truck Accident Litigation From Start To Finish (Nbi November 2011)

TRUCK ACCIDENT LITIGATION
FROM START TO FINISH
November 2, 2011 · CONFIDENTIAL MATERIALS

TABLE OF CONTENTS
I. Defense Planning for the Wrongful
Death Case
II. Trial of a Truck Accident Case

Defense Planning for the
Wrongful Death Case

Defense Planning for the Wrongful
Death Case

Where to Start in Trucking Case Defense
What to Include in the Case Investigation
Discovery Techniques in Tractor-Trailer Collisions
Pretrial Motions
Use of Expert Witnesses

Where to Start in Trucking Case Defense

WHERE TO START IN TRUCKING
CASE DEFENSE

If you are going to defend trucking companies/drivers
in wrongful death litigation you need to be prepared
to head to an accident scene in a moments notice.
You must have the proper equipment already in your
vehicle or easily accessible.
• Camera/Video Camera
• Voice recorder
• Pen and Paper
• Reflective Vest
• List of Pertinent Contact Information

What to Include in the Case Investigation

What to Include in the Case
Investigation

Counsel should immediately:
• Identify the exact location of the accident;
• Determine the owner of the tractor, trailer and cargo;
• Identify the employer of the driver, and his status
(employee, independent contractor);
• Ascertain whether any environmental or hazardous conditions
exist;
• Retain an approved independent adjuster;
• Locate the driver and make sure he/she doesn’t speak to anyone
but you;
• Determine if the driver is out of service;
• Determine if a post-accident DOT test is required (or was
performed);

Investigation

Counsel should immediately: (con’t)
• Determine whether law enforcement has directed post-accident
testing;
• Determine whether the carrier has independent drug/alcohol
testing requirements and learn what protocols must be met;
• Discuss retention of an accident reconstructionist with the carrier;
• Determine whether a biomechanical engineer and/or other experts
(conspicuity?) should be retained for scene investigation and
vehicle inspection;
• Determine what ECM or other data is maintained by the carrier and
if it can be accessed remotely;
• Determine the location of the tractor and protect any data;

Investigation

• Direct any necessary post-accident inspections;
• Determine a reasonable hold time for the tractor and any
cargo, taking into account the type of cargo;
• Interview the driver (I would not suggest allowing the independent
adjuster to speak with the driver);
• Determine whether the driver needs independent counsel;
• Determine whether the driver requires criminal counsel if charges
are pending or imminent (likely with new CSA rules);
• Obtain any photographs taken by driver;
• Obtain any driver accident forms completed by driver;
• Obtain a copy of any citations issued to the driver;
• Obtain copies of any statements from third parties;

Investigation

• Obtain HIPAA complaint release from the driver regarding test
results pursuant to §382.405;
• Identify all claimants and nature and extent of injuries;
• Determine whether toxicology testing of claimants has/will
occur;
• In fatality accidents, identify funeral home and coroner and
learn whether autopsies will be conducted;
• Identify all witnesses, procure statements through independent
adjuster (you don’t want to be a witness later);
• Consider using a court reporter for taking statements where
appropriate;

Investigation

• Interview the investigating law enforcement officer;
• Interview the responding DOT officer;
• Determine what, if any, level of DOT inspection will occur;
• Obtain law enforcement officers’ field notes, measurements and
photographs;
• Obtain copy of post-crash inspection report (will likely take
several days);
• Arrange for accident reconstructionist to meet with investigating
officer where appropriate;
• Obtain all accident reports and supplemental reports;
• Obtain all 911 reports for the time period preceding and
including the accident;

Investigation

• Identify all emergency responders to accident;
• Obtain run reports and call logs for fire fighters and first
responders;
• Obtain photographs of scene, tire marks, debris field, signage and
vehicles through independent adjuster and/or accident
reconstructionist (depending on the carrier);
• Identify applicable speed limits, signage or other posted warnings;
• Obtain the sequence and timing of all relevant traffic control
devices;
• Consider whether aerial and/or video photography is appropriate;

Investigation

• Obtain accident history with respect to other accidents in the same
proximity;
• Inquire as to conspicuity, signage, barricades, detours, roadway
construction, and any factors affecting visibility;
• Identify contractors conducting roadway construction in the area;
• Obtain copies of all traffic or business video footage in the area;
• Obtain copies of all broadcast media coverage of accident, along
with raw data;
• Obtain internet data regarding the accident—don’t forget social
media sites of claimants;

Investigation

• Determine the location and owners of all vehicles involved in the
crash and see if the vehicles have on-board computers—issue a
litigation hold on that information;
• Procure cell phone records for all drivers involved;
• Inquire about carriers retention program and make sure that all
relevant, or potentially relevant data, is being preserved in
compliance with that program and/or FMCSR;
• Obtain copies of Driver Qualification file, Driver Personnel file and
accident history, payroll information, current driver’s manual, six
month’s of driver logs, time cards and records of duty status, trip
packs, BOL’s, fuel receipts, tolls, dispatch records, pre-trip and
post-trip inspections, maintenance records for tractor and
trailer, relevant leases, contracts and insurance.

Discovery Considerations in Truck Accident Cases

Document Retention

DISCOVERY CONSIDERATIONS

The trucking industry is highly regulated and
plaintiffs attorneys love to set traps. A few
issues that should be immediately
considered are document retention issues
and overly broad litigation holds.
Further, depending on your venue, there may
be a separate cause of action for spoliation
of evidence. Be prepared to litigate these
issues even where you think you have taken
all reasonable precaution. A few plaintiff
advocates consider it your responsibility to
monitor your drivers even when they are not
working.


I. Then New CSA (formerly CSA 2010)
II. Admissibility of “Preventable” Determination
III. Document Retention

CSA (formerly CSA2010)

Why the change from SAFESTAT?
• In 2004 the FMCSA issued an Executive Summary on Improvements needed
in the Motor Carrier Safety Status Measurement System. The results were
downright frightening.
Of the 645,551 active interstate carriers on record in Safestat, 26 percent, or
about 170,000 had sufficient data to compute a value for one or more of the four
safety evaluation criteria.
There were large state-to-state variations in reporting of traffic violations, which
introduce a degree of geographic bias in the ranking system. For
example, California reported only 115 serious moving violations to the FMCSA
database in 2001 compared to Indiana, which reported about 25,000. Indiana
still has a reputation as one of the nation’s strictest states.
The Executive Summary estimated that errors occurred in approximately 13% of
all crashes and 7% of inspection transactions on interstate carriers.
An estimated 11% of the reports held the wrong carrier accountable for a
SafeStat related violation.
• Oddly enough, the FMCSA did not agree with the Executive Summary.


Compliance, Safety, Accountability—formerly CSA2010.
Compliance, Safety, Accountability (CSA) is a Federal Motor
Carrier Safety Administration (FMCSA) initiative to improve
large truck and bus safety and ultimately reduce
crashes, injuries, and fatalities that are related to commercial
motor vehicles. It introduces a new enforcement and
compliance model that allows FMCSA and its State Partners to
contact a larger number of carriers earlier in order to address
safety problems before crashes occur. Rolled out in December
2010, the program establishes a new nationwide system for
making the roads safer for motor carriers and the public alike!
See http://csa.fmcsa.dot.gov/about/.


Compliance, Safety, Accountability 7 BASICS
• Unsafe Driving
• Fatigued Driving
• Driver Fitness
• Controlled Substances/Alcohol
• Vehicle Maintenance
• Cargo Related
• Crash Indicator


The six major differences between the new
SMS and SafeStat are as follows
1. SMS is organized by 7 behavioral categories
while SafeStat was comprised of 4 general safety
evaluation areas.
2. SMS identifies safety problems to determine
who to investigate while SafeStat prioritized
carriers for an overall compliance review.


3. SMS uses all safety inspection
violations, SafeStat only used out of service
violations and specific moving violations.
4. SMS gives weight to risk based violations while
SafeStat did not.
5. SMS will impact carriers safety fitness
determination while SafeStat did not.
6. SMS assesses drivers and carriers.


Upon intake of any trucking defense file every
defense attorney should, visit the SMS website
and also pull the driver’s PSP (pre-employment
screening program) from the MCMIS (motor
carrier management information program).
MCMIS electronic profiles will contain five years of
crash data and three years of inspection data,
however, MCMIS will not include conviction data.


Crash and Incident Data
Studies have shown the majority of serious multiple vehicle
crashes involving trucks are instigated by the actions of
passenger vehicles. The current CSA does not take into
consideration "fault" when including crash data into a
carrier's "crash" BASIC. All crashes involving the carrier are
included, thereby skewing the carrier's threshold at which
FMCSA intervention will be initiated. The CSA database must
only include those accidents in which "fault" was established
against the motor carrier or driver. In addition, the database
should only include DOT recordable accidents. The FMCSA is
currently attempting to address crash accountability within
the CSA methodology.


Will CSA be better than SafeStat?
It’s too early to tell as we don’t yet have enough
information to accurately evaluate not only the
resulting, data-based determinations, but we have
no basis to evaluate the data going into the
system.
So, if we have insufficient valid data to assess the
accuracy of the system, what are the potential
implications of using CSA data at trial?


CSA And The Potential Impact On Litigation
There is no regulation or statutory authority that
specifically states that information collected as a
result of CSA will, or will not, be admissible in
legal proceedings. Further, FMCSA Part 385
(Safety Fitness Procedures) does not specifically
mention the admissibility of SafeStat data. As
such, there are several possible implications, but
little clarity regarding the future usage of CSA
data.


Potential Implications of CSA Data
Compliance with the new regulations will not
protect a carrier from liability for an accident.
However, the fact that the CSA program will
force carriers to be overly vigilant in complying
with safety guidelines, may mean that plaintiff’s
lawyers will have less ammunition vis-à-vis
certain carriers for negligent hiring or negligent
maintenance claims.


Good safety records may also be beneficial in
reducing potential punitive damages claims
that are generally based on reckless disregard
of public safety, or blatant violations of
trucking regulations. At a minimum, CSA
should force motor carriers to be more
diligent in safety record keeping, which will
likely prove beneficial to defense counsel
when defending negligence claims against
compliant motor carriers.


CSA could also have the reverse effect for those
carriers that have poor BASIC scores. Since most
CSA data will be made public, plaintiff’s
attorneys will certainly attempt to make use of
the negative data against a carrier and/or driver
at trial. Despite the FMCSA’s statement that
PSP/DIR reports will not be made
public, plaintiff’s will most likely attempt
to use the subpoena power of the courts
to obtain this information, similar to how
plaintiffs currently acquire
medical, criminal and traffic records.


Whether this data will ultimately be
admissible at a trial is questionable given
that the FMCSA’s concern with
implementing CSA is safety and not
admissibility of evidence. Only time will be
able to tell how state trial courts will rule
on the admissibility of data collected as a
result of the CSA initiative.


In Schramm v. Foster, a case against a broker for
negligent hiring of a motor carrier, the federal
trial court held that the duty of the broker was to
use reasonable care in hiring carriers, including at
least: checking the SafeStat database; and
maintaining records on the carriers used to
assure the carriers are not manipulating their
business practices to avoid unsatisfactory
SafeStat ratings. Schramm v. Foster, 341
F.Supp.2d 536 (D.Md. 2004).


In Doyle v. Watts Trucking, there was an accident
involving allegations of ―sleep deprivation‖ against
the truck driver and vehicle maintenance against
the carrier. The court allowed into evidence
various safety reports from the FMCSA, including
SafeStat data showing that the carrier regularly
violated HOS rules and violated regulations on
brakes and tire tread depth. The defendant
objected on relevance grounds, but the court
allowed the evidence. CSA data will contain similar
information. Doyle v. Watts Trucking of
Nebraska, Inc., 2007 WL 197721 (Neb.Ct.App.
2007).


It is likely that CSA safety data will be sought
in discovery and used, both for and against
potential defendants at trial, regardless of
the FMCSA’s intent. This further increases
the importance of diligent CSA compliance.
Fortunately, the trend seems to be limiting
admissibility to only cases where the
violations are causally related to the alleged
negligent activity.

Admissibility of “Preventable” Designation

No two accidents or carriers are exactly alike
and the FMCSA recognizes that not all
accidents are preventable. Some types of
accidents, however, can be prevented by
drivers, while others require changes in motor
carrier practices and policies or equipment.
The new FMCSA method for determining
preventability is based on examination of the
facts in accident records.
http://www.fmcsa.dot.gov/safety-
security/eta/ETA%20Final%20508c.pdf, page
126.


For accidents that occur after April 29, 2003, motor
carriers must maintain an accident register for three years
after the date of each accident. For accidents that occurred
on or prior to April 29, 2003, motor carriers must maintain
an accident register for a period of one year after the date
of each accident. Information placed in the accident
register must contain at least the following:(1) A list of
accidents as defined at §390.5 of this chapter containing
for each accident:(i) Date of accident.(ii) City or town, or
most near, where the accident occurred and the State
where the accident occurred.(iii) Driver Name.(iv) Number
of injuries.(v) Number of fatalities.(vi) Whether hazardous
materials, other than fuel spilled from the fuel tanks of
motor vehicle involved in the accident, were released.
§390.15(b).


What is the ―official‖ definition of ―preventable?‖
• The National Safety Council’s definition states, ―a
preventable collision is one in which the driver failed to do
everything that reasonably could have been done to avoid
the accident.‖
• The American Trucking Association defines preventability
as follows: ―was the vehicle driven in such a way to make
due allowance for the conditions of the road, weather, and
traffic and also to assure that the mistakes of other drivers
did not involve the driver in a collision.‖
• The FMCSR states that a preventable accident on the part
of a motor carrier means an accident (1) that involved a
commercial motor vehicle, and (2) that could have been
averted but for an act, or failure to act, by the motor
carrier or the driver. §385.3


§385.7(f) states that factors to be considered in
determining a safety rating include, "frequency of
accidents; hazardous materials incidents; accident
rate per million miles; indicators of preventable
accidents; and whether such accidents, hazardous
materials incidents, and preventable accident
indicators have increased or declined over time."
Unfortunately they offer no definition of
"preventable accident indicators.―
Neither §390.15(b) nor §385.7(f) makes
mention of recording of accidents as preventable or
non-preventable.


Part 385.7(f) states that factors to be considered in
determining a safety rating include, "frequency of
accidents; hazardous materials incidents; accident
rate per million miles; indicators of preventable
accidents; and whether such accidents, hazardous
materials incidents, and preventable accident
indicators have increased or declined over time."
Unfortunately they offer no definition of "preventable
accident indicators."
Interestingly enough, Part 385.7(f) was changed in
July of 2007 and specifically removed "preventable
accident rate per million miles" from the factors to be
considered in determining a safety rating under that
part.


Appendix A to §385 Explanation of Safety Audit
Evaluation Criteria states, "Preventability will be
determined according to the following standard: if a
driver, who exercises normal judgment and foresight,
could have foreseen the possibility of the accident that
in fact occurred, and avoided it by taking steps within
his/her control which would not have risked causing
another kind of mishap, the accident was preventable."
This a scary standard for litigators. If the carrier has
already identified the accident as ―preventable‖, which
is the default designation under FMCSR, it may have
already tied my hands on liability.
However, all may not be lost.


There are several arguments against the
discoverability, and ultimately the admissibility, of a
―preventable‖ designation. Different jurisdictions have
differing views of the law so consult an attorney.
• Subsequent remedial measure—See Harper v. Griggs, 2006
U.S.Dist. LEXIS 64691 (W.D.Ky., 2006);
• Protected from discovery by 49 U.S.C. § 504(f) because they
were required by the FMCSA—See Tyson v. Old Dominion Freight
Line, Inc., 270 Ga. App. 897, 608 S.E.2d 266 (Ga.Ct. App., 2004);
• Prepared in anticipation of litigation, which necessarily requires
that such a designation is not prepared in the normal course of
business—See Ward v. Rickrode, 849 A.2d 619; 2004 Pa. Super.
LEXIS 113(2004);
• Constitutes mental impressions of the defendant regarding the
liability—See your local state rules regarding privileged
information;
• Critical self-analysis doctrine—where applicable and recognized.

Document Retention

Required Docs Retention Time FMCSR Citation

Logs and trip docs 6 months §395.8(k)(1)

General vehicle One year and for six §396.3
information months after vehicle
leaves carrier’s control
Post-Trip inspection 3 months §396.11(c)(2)

Roadside inspection 1 year §369.9(d)(3)(ii)

DQ file and Through employment §391.51(c)
investigation history and 1 year after
Alcohol and Drug test Positive: 5 years §382.401(b)(1)
Negative: 1 year §382.401(b)(3)
Accident Register 3 years §390.15(b)


Court orders an adverse inference
instruction pertaining to the defendants’
destruction of actual driver’s logs required
by the FMCSR. Additionally, the court
found Qualcomm messages that contained
a recap of the driver’s logs were not
sufficient to constitute production of the
actual driver’s logs.
Ogin v. Ahmed, 563 F.Supp.2d 539
(M.D. Penn. 2008)


Failure to maintain six months of driver’s log books
and accompanying records, along with plaintiff’s
demand letter for the records and the requirements
of the FMCSA, created an inference that documents
were intentionally destroyed. The Court gave an
adverse instruction stating: (1) carrier failed to
properly monitor the driver’s safety performance; (2)
carrier was aware of safety violations; and (3) carrier
knew driver was operating in a fatigued state.
Darling v. J.B. Expedited Servs., 2006 WL
2238913 (M.D. Tenn. 2006)


Court found carrier had been ―cavalier‖ and had
―intentionally misled the Court and Plaintiffs‖
regarding the whereabouts of the log book, logbook
audits and accident file. The Court further found the
carrier had provided incomplete and/or false
responses to discovery requests. Based on these
findings the carrier was fined $30,000.
Garrett v. Albright, 2008 WL 681766 (W.D. Mo.
2008)

PRETRIAL MOTIONS

Motions in Limine
• A Motion in Limine is the best tool for the successful defense
of catastrophic cases. Consider the following potential
motions in limine:
Barring the demonization of trucking companies in general;
Barring admission of irrelevant logs (remote from accident
date);
Barring admission of irrelevant ECM data (remote from
accident date);
Barring admission of Preventable Accident Determinations;
Barring claims for negligent hiring/retention where applicable;
Barring admission of other accidents.

USE OF EXPERT WITNESSES

There are a variety of potential expert witnesses in the catastrophic
trucking accident case. There are also several different types of heavy
equipment which may require a certain type of expert witness.
Buses, heavy tow trucks, flatbed trailers, dry van trailers and other
types of equipment are specialized equipment and may require a
certain type of expert. In addition, any given case may include a
thorough examination of the driver logs to determine if a driver is out of
hours, loading dock safety, improper securing of a load, or another area
of specialization.
You might also consider an expert to conduct the ECM download
(different manufactures have different modules), accident
reconstruction, conspicuity, kinematics, biomechanics, general heavy
equipment safety, pre-trip inspections, DOT compliance, toxicologist
and any host of other issues that may arise by virtue of a specific set of
facts.

Trial of a Truck Accident
Case

TRIAL OF A TRUCK ACCIDENT CASE

I. Jury Selection
II. Opening Statements
III. Presenting Evidence
IV. Closing Arguments

JURY SELECTION—A Defense Prospective

JURY SELECTION

• The purpose of jury selection is to gather enough
information to find and exclude jurors who are predisposed
to construe all inferences against the driver or trucking
company, regardless of the evidence.
• You have to address this predisposition as early as
possible in trial, but you can do it in a manner which
emphasizes the unfair characterization of truck drivers and
trucking companies.
• The opposition is certainly going to try and demonize your
client, his/her employer or both. You must be prepared to
combat this tactic with the available information.
• The trucking industry is one of the most regulated
industries in the country. Start by weaving in some factual
data regarding truck accidents.

A List of the Plaintiff’s Attorney’s View
of Truck Accident Causation
Lack of Training on the part of the truck driver;
Overloaded Trucks;
Oversized Trucks;
Poorly maintained brakes on the trucks;
Driving in conditions of poor visibility due to smoke, fog, snow or rain;
Truck driver inexperience;
Fatigued, sleepy or tired driver driving too long and too many hours without rest;
Speeding over the limit or driving at speeds or beyond the road and weather conditions;
Running off the road;
Failure to yield the right of way;
Aggressive driving behavior;
Truck drivers under the influence of drugs and alcohol while driving;
Driving the truck in bad weather conditions;
Dangerous or reckless truck driver with a long record of wrecks and accidents;
Unsafe safety systems, reflectors, lights and other warning devices; and
Failure of truck to have installed an underide protection underguard.
Take a look at http://www.indianatruckaccidentlawyers.com/faqs.cfm#q1 or
http://www.apitlamerica.com/ for some other interesting thoughts on trucking accidents by
the plaintiffs’ bar.

JURY SELECTION
Statistics to Use in Voir Dire

A 2006 Virginia Tech analysis of two studies conducted for the
Department of Transportation found that 78 percent of crashes
were caused by passenger car drivers.
In fatal crashes involving a car and a large truck, 35 percent of
the time the crash occurred in one of the four blind spots
surrounding large trucks.
In 2006, rear-end collisions where passenger cars strike large
trucks were 2.7 times more likely than large trucks rear-ending
passenger cars.
Head-on collisions where passenger cars encroach into the
truck’s lane are more than 10 times more likely to occur than
vice-versa.

JURY SELECTION

In 2009, 3,215 large trucks were involved in fatal crashes, a 21-
percent decrease from 2008 and the largest annual decline
since records have been kept. Including the 12-percent
decrease from 2007 to 2008 (the second-largest decline on
record), the number of large trucks involved in fatal crashes
declined by 31 percent from 2007 to 2009.
Over the past year, large truck and bus fatalities per 100 million
vehicle miles traveled by all motor vehicles (preliminary data)
declined by 21 percent, from 0.153 in 2008 to 0.121 in 2009.

JURY SELECTION

From 1999 to 2009:
• The number of large trucks involved in fatal
crashes has declined by 35 percent.
• The number of large trucks involved in injury
crashes has decreased by 48 percent.
• The number of large trucks involved in property
damage only crashes has decreased by 35
percent.
All statistics taken from the Large Truck and Bus Crash Facts 2009
Early Release, which can be found at
http://ai.fmcsa.dot.gov/CarrierResearchResults/HTML/2009Crashfacts/2
009LargeTruckandBusCrashFacts.htm

JURY SELECTION
Conclusion

Don’t let plaintiff’s counsel get the advantage by
perverting the public perception that trucking
companies and drivers are unsafe and responsible for
all accidents involving a commercial vehicle.

Plaintiff’s counsel will almost certainly ―open the
door‖ to your use of the statistics provided by asking
jurors about their thoughts about large trucks and the
perception of unsafe drivers.

Turn the tables and educate the jury on the facts all
at the same time. Set the tone.

OPENING STATEMENTS
Generally

 Once you get through the pretrial challenges that
shape and limit what gets introduced at a trial the
law doesn’t have a lot to do with how the case is
actually tried.
 The trial is not a legal puzzle that you get to put
together for the jury, it’s your opportunity to do a
better job of presenting the jury with a story they can
identify with and believe. Every action taken by you,
your client and your opponents in the presence of
the jury is viewed, remembered, scrutinized and
judged.
 The opening statement is like the first act in a play—
make it interesting and you’ll hold the audiences’
attention. Bore them and it won’t matter what you
say.

OPENING STATEMENTS
Key Themes

It is your obligation to give the jurors the information
they need to help them reach the “right” verdict.
This involves giving them a story of the case that is
consistent with the jurors’ own life experiences, and
that prevents them from bringing into their reasoning
extrajudicial experiences that are inconsistent with
your positions.

Using key themes is the best way to persuade jurors
to your positions. Research indicates that people
learn by organizing complex issues into simple
concepts. Find a theme that works and repeat if
throughout the trial. If you find the right theme the
jurors will make the facts fit your theme.

OPENING STATEMENTS
Key Themes

• At the heart of every well tried case is the pivotal issue
of why or why not someone should be held liable.
Whichever side can most effectively condense
complex issues into simple, believable concepts is
likely to be successful.
• Don’t present the jury with the concept of reaching a
just result. Everyone has a different idea of what
justice is or what it should require. Invoking justice
simply evokes contemplation, and you cannot control
or guide a juror’s contemplation. Frankly you don’t
want a juror contemplating your notion of justice.
• You will be better off arguing to a jury that your client
is a victim of injustice. Everyone has suffered some
kind of injustice and will more easily identify with this
theme. Put the other side on the defensive.

OPENING STATEMENTS
Use of Mock Trials or Simulation

• One very powerful tool in developing themes is a
mock trial or trial simulation. Here are some
reasons to (and not to) consider a Mock Trial.
Attorneys think differently than your average juror. Do you
process information differently than you did prior to law
school?
Remember, you will likely have lived with this case for
several years and may have a tendency to overlook what to
you might seem trivial or obvious. A mock jury will give you a
reality check and let you know if you miss a glaring issue.
Don’t get caught ignoring your real jury. Just because it
resonated with a mock jury does not mean it will be as well
received by a real jury. You have to know when you aren’t
connecting.
This can be very expensive and not every case will warrant a
mock trial or simulation.

OPENING STATEMENTS
Avoiding Mistakes in Theme Preparation

• Do not overlook the psychological and emotional
reactions jurors will have to the facts of your particular
case. Relying on a legal defense may make perfect
sense to you, but jurors are going to react to the actual
facts and how the facts make them feel. They are not
going to apply those facts to a legal precedent. You
must anticipate jurors having sympathy for a plaintiff who
has lost a loved one or suffered a terrible injury and find
a way to tactfully address it.
• Do not rely on the “burden of proof” theme. Research
indicates that in most civil cases jurors misinterpret or
ignore judicial instructions as to the nature of the burden
of proof. It is easier for jurors to assume the defendant
must demonstrate why it did nothing wrong and should
not be held liable. It is easy for a juror to rationalize that
a judge would not allow a case to go to trial if there was
no rational basis for the claim. Prepare like you (the
defendant) have the burden of proof.

PRESENTING THE EVIDENCE
Demonstrative Aids and Simulation

• Jurors are easily bored so do something to keep them
interested in your case and what you are saying.
Anything you can do/use to get a juror’s attention is
valuable.
• Most concepts are far more easily presented in a
visual, rather than oral, manner. This is especially true
in motor vehicle accidents where it is difficult for a juror
to visualize an intersection, the distance between
vehicles, the location of traffic control signals or any
other fact that may be essential to proving your claim.
Don’t just tell them, show them.
• Be very careful that what you are showing them actually
depicts what you say it does. Jurors are keeping score
and if you mislead about any piece of evidence you lose
credibility that you may not be able to regain. On that
same topic, keep score on opposing counsel. If he/she
doesn’t deliver on a promise make sure to hammer that
later.

Demonstrative Aids and Simulation

• Today’s jurors have spent an inordinate amount of time
watching television and respond to visual
stimulation, particularly computer generated
graphics, over any other medium.
• To effectively use demonstrative evidence you need to
tell the jury what is coming, but don’t explain it in such
detail that they get bored and lose interest. Just tell
them what they are going to see in simple terms—label
the vehicles and the directions and then just let them
watch.
• Because of shows like CSI and Law and Order, jurors
are expecting to be entertained in the courtroom. If you
really want to capture and hold their attention you simply
cannot rely on oral testimony. Give your witness an
exhibit to talk about while the same exhibit is being
displayed to the jury. I guarantee they will follow along
much better than if you pause to publish a photograph
and the jury is passing it around while you are presenting
evidence.

Witnesses

• It is imperative that you prepare your witnesses for a credible
presentation to the jury. Take the time to check out their attire
and grooming prior to putting them on the stand. These jurors
don’t know your witnesses and they will only see/hear them for
a short period.
• Video tape your witness preparation and show the video to the
witness immediately afterward. Point out how bad slouching in
their chair or chewing on their fingernails looks to the jury.
• Go by the old adage that no one has a memory powerful
enough to be a successful liar. If they lie they will eventually
be caught and you will lose credibility and quite possibly the
case.

Witnesses—Don’t Be Too Confrontational

Witnesses--Don’t Be Too Arrogant

PRESENTING THE CASE
Witnesses—Cross Examination

Don’t cross examine a witness just
because he/she is a witness
detrimental to your case.
Only cross examine if doing so
can help your case.
Cross examining a witness that
hurts your case only serves to
solidify your opponents position.

PRESENTING THE CASE

Start early—well ahead of
trial
Outline
theme, story, witnesses and
exhibits in voir dire and
opening statements
Your cross examination
should be consistent and
move your case theme
forward

PRESENTING THE CASE

What can this witness say that can help
your case?
How do you make him/her say it?
Think outside the box
Don’t be afraid to start out with the
main issues in the case. The witness
likely won’t be ready for it.
Don’t let the witness get comfortable
• Don’t let them anticipate the next
question

PRESENTING THE CASE

Do not take the witness’
deposition a second time
• You only have the jury’s attention for a
short time, use it wisely. Be selective
about your questions.
• Impeachment on anything but a
material question of fact is
ineffective, and improper.
• End on an up tick.

PRESENTING THE CASE

Tell a story. You will be using leading questions to
tell a story. It might be your client’s story, the story of
missed opportunities (what else could the witness have
done or should the witness have done?), or the story
of impediments to observation (what did the witness
misread, fail to observe, or neglect to observe?) There
are numerous stories you can tell – pick your
story, and then tell it with leading questions.
Practice by telling the stories you already know. You
represent the Three Bears, and you have the
opportunity to cross-examine Goldilocks. What story
will you tell through your leading questions? Cross-
examining the Big Bad Wolf, can you tell a story from
the Three Pigs perspective? Or cross-examine your
favorite movie villain. Sounds goofy, but give it a try.

Cross Examination—Ineffective

Cross Examination—Effective

PRESENTING THE CASE
Closing Arguments

If you’re trying a case there is likely a
weakness. You have to deal with those
weaknesses instead of just summarizing the
evidence.
Admit what you must, and do it gracefully. It
will help your credibility to be human and for
your case to have weaknesses. Denying or
ignoring the weaknesses makes them larger
than they really are.
Try to imagine what questions a juror would
have at the close of the case and make sure
you answer those questions.

PRESENTING THE CASE
Closing Arguments

Now is your opportunity to tie the case
into a nice neat bow. Remind the jury
that your theme has been borne out
through every phase of the trial.
Keep consistent with your theme.
Those of us representing corporations
must convince the jury that forcing our
client to pay for something it is not
responsible for is an injustice and why
not compensating a seriously injured
person, regardless of the facts, is just.

PRESENTING THE CASE
Closing Arguments—Body Language

• Positive influential body language includes:
• Posture—stand straight with your chest out.
• Presence—lean back and take up space.
• Face—smile, relax the tension in your face and
jaw.
• Eye Contact—look people in the eye, but don’t
stare.
• Arms and Hands—keep hands out of your
pockets.
• Leg Stance—use an open stance with weight on
one leg.
• Voice—deep voice, speak slowly and confidently.
• Attitude—confident, passionate, happy and
positive.

PRESENTING THE CASE
Closing Arguments—Tempo

• Master pauses for impact
• Persuasive speakers use pauses for
emphasis, effect and mood.
• Pauses can alert your audiences to
pay attention to a special point as if
to say ―listen to this.‖
• The key is to pause in front of the
point your want to emphasize and
keep eye contact during the entire
time.

PRESENTING THE CASE
Closing Arguments—Problem Solving

• Practice, practice, practice. Try to
reason out these problems with non-
attorney friends. Better yet, try this
out on your children (my personal
favorite). If you can lead them to a
rational conclusion you can do it with
anyone. Plus, kids force you to walk
them through every step in the
process—a good rule to practice and
learn.

PRESENTING THE CASE
Closing Arguments—Personal Thoughts

I like to address damages even when I believe I’m strong
on liability. Give the jury an alternate number and tell them
why your number is more reasonable.
I love it when plaintiff’s counsel doesn’t give the jury a
number in the main closing. This gives me an opportunity
to tell the jury that Plaintiff will not get up here and ask you
to reward some outlandish number like [insert number
which is likely far below the number they will actually ask
for]. Now they have to get up and explain why it is not an
outlandish number.
I like to use the jury instructions in my closing argument. I
especially like pointing out to the jury which verdict form is
a defense verdict form and ask them to find it and fill it out.
Don’t forget about technology and demonstratives.
Stick around after the verdict even if it is bad for your
client. You’ll learn far more than you think.

CLOSING ARGUMENTS
How Honesty, Inflection and Tempo Work Together

Robert R. Foos, Jr.
Partner
rfoos@lewiswagner.com

501 INDIANA AVENUE • SUITE 200 • INDIANAPOLIS, INDIANA 46202
317.237.0500 800.237.0505 F: 317.630.2790 www.lewiswagner.com

Truck Accident Litigation From Start To Finish (Nbi November 2011)

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