“Long distance is the next best thing to being there.” —Bell Telephone ad, 1974
If either of you guys tells an Adams County jury that your clients were making side-by-side, left-hand turns, at that intersection,” I began, “you’re going to see all 12 of their heads swivel slowly from side to side conveying, ‘No, you can’t!’”
I delivered this warning during our second or third jury instruction conference. Finally, before empaneling the jury, I convinced the two attorneys that the direction of travel, alleged in the pleadings and assumed throughout the discovery of the case, was wrong. The two attorneys were both from out of town.
To color the lines in a bit, the case involved two cars side-by-side, both in left turn lanes. The driver in the inner lane was an elderly woman who got confused, freely admitted that she went straight instead of turning, and pled guilty to an improper lane usage charge. So liability was pretty clear. The disputed issues were the force of the collision and the resulting damage.
The plaintiff’s version was that when he pulled up and stopped in the outer lane, there was no one in the inner lane. His claim was that the elderly woman tried to “make the light” and she “T-boned” him.
Here is what it took to convince both attorneys that what they thought was the direction of travel was wrong. First, although I have lived in this community since 1980, they would not take my word for it because “that’s what the police report said.” Normally, I would not inject myself into a case by doing my own investigation; however, I needed to instruct the jury on the traffic controls at that intersection.
They wouldn’t believe me, so I called the city engineer to confirm. I also went to the scene with a police officer and the diagram, and she confirmed the reason the attorneys were mistaken was because the diagram, at the top, had an arrow pointing north. That preprinted arrow should have been crossed out to point down. The Sunday before we picked the jury, I received an email with the corrected jury instructions.
If either attorney had stood up—and, presumably, it would have been the plaintiff’s attorney—and told the jury the original version of the accident, the jury would have concluded very quickly that (1) the attorney was from out of town and (2), more importantly, he didn’t know what he was talking about.
To put icing on the cake, the parties were on a heavily traveled cross street that intersects with the most heavily traveled four-lane thoroughfare in the city—due to it being the major commercial corridor. At the corner of the intersection sits a very popular restaurant that serves breakfast all day.
Although the jurors are cautioned to not apply their personal experiences or inject themselves into the trial, my guess is that, among the 12 jurors, collectively they had gone through this intersection tens of thousands of times depending on how many years they had lived in the county.
In fact, the traffic flow through this intersection was so important that, had I been defending the case, I would have looked at the juror information cards to see where a particular juror lived and worked. My jury selection strategy would have been to throw all other factors out the window and simply pick the jurors on this one criterion—my estimate on how many times they would have gone through this intersection based on where they lived, where they worked, and how many years they had lived in the community.
If attorneys had gone to that intersection and watched it for even 10 minutes, here is what they would have discovered: The commercial highway is the preferential highway and the cross street has a very, very long light. The chances of the inner lane being totally empty at 6:09 in the evening, on a Friday, is highly unlikely. Accordingly, two cars proceeding from a dead stop with one turning into the other would probably be a low-speed collision.
Add to that the unlikelihood of a 73-year-old driver trying to “make the light” and you can understand the verdict. The offer before trial was $50,000 and the verdict was a little over $29,000. In fact, the verdict was under what even the defense attorney suggested the amount of the verdict should be in closing argument.
In the next issue, I will recount a case that I had as a young attorney where I learned this lesson. In addition, we will explore all the ways to get the judge or jury to the scene or at least tools that will make it the “next best thing to being there.”
Hon. Mark A. Drummond is an associate editor for Litigation News.
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