When experienced trial lawyers sit around and swap war stories there is often much to be learned.
Nowadays, some of the war stories are being swapped on the web via blogs (or, more properly, blawgs). Robert Bogg, at his Washington Trial Law blawg happened to see a post on MyTrialBlog.com about the benefit of developing and emphasizing a single theory throughout a trial. He was reminded of a specific instance where he learned this effective strategy the hard way.
I had my hat on as a defense attorney and was defending a wrongful death case involving a five year old child who was killed in a parking lot at a school. The plaintiff’s theory was that the parking lot was nothing but chaos and confusion and therefore was an accident waiting to happen. I approached the case from a proximate cause angle in that there was no proximate cause. Assuming there was chaos and confusion it had nothing to do with this accident as the mother of the child had safely escorted her child to the car but then left him on the traffic side of the car to get in on his own rather than putting him in the car seat and closing the door. The child, once he was unattended, wandered away from the car and got in front of a pick up truck parked next to his mother’s car just as it was leaving and was run over because the driver of the pick up could not see a small child who was in front of the truck but out of site.
Through out the trial I heard “chaos and confusion” and “an accident waiting to happen” over and over again. During closing arguments the plaintiff’s attorney just repeated this mantra over and over again and did not address proximate cause. Of course during my argument I pointed out that the plaintiff’s attorney never addressed proximate cause and I laid out the case for why there wasn’t any. During rebuttal I expected the plaintiff’s attorney to address the proximate cause argument. He never did. He just once again said over and over it was all “chaos and confusion” and was an “accident waiting to happen.
The jury verdict was for the plaintiff. I asked one of the jurors how in the world they found proximate cause. Well, he said, it was an accident waiting to happen with all that chaos and confusion. Point made.
I appreciate Robert’s war story. Chaos and confusion may work quite well in some of my firm’s upcoming trials. Sometimes a broader stroke, applied repeatedly, is better than a pin-point analysis. When there is an accident waiting to happen why not let the jury draw its own conclusions regarding liability?