Your litigation plan must include establishing client credibility in addition to liability and damages
For those of us in the personal-injury arena, the vast majority have come across a slip or trip-and-fall case. These cases can pose serious challenges; however, with a proper work up, they can yield fantastic results.
For one reason or another, of the very few cases where I have had client-credibility issues, nearly all originated from slip or trip-and-fall cases. While I am not implying that every client who walks in your door from a fall is lying, you must do your due diligence up front. Every case I take, I work it up with the thought that it will end up in front of a jury. Subpoena all medical records of any doctor they have visited, comb through their medical records, and run a claim check to see what lawsuits they have filed. Be up front when you first meet your clients and tell them that if they are not forthcoming about how the incident occurred or any of their prior medical issues, their case could very well end up being a zero or a jury could provide them with a fraction of the case value even if they have a legitimate claim and are really hurt. If there is one thing a jury dislikes, it is a plaintiff who is not forthcoming. Jurors will invariably punish you for a client who lies.
Your first meeting with your clients should not be your last. You should spend time with your clients at home with their friends and family. I always insist on breaking bread with my client at some point before the deposition and absolutely before trial. Take the time to learn your client’s personal history; you will be amazed at what you will learn and how that will change how you feel about your client. If you are not ready to go to bat for them after that, then you need to seriously consider associating in another trial attorney or dropping the client.
I know I make snap judgments of my clients and quickly begin to assess the value of the case based in part on my client’s character. This kind of thinking can be hurtful to your case and your practice. As good as I think my intuition may be, it is a mistake to rely on those snap judgments. My client is more than just a number and it is crucial that I see my client’s true value as a human. For starters, no individual is perfect, which is why it is important to look past the client’s so-called character defects. Some people think that if their plaintiff has a checkered past with the law or has had substance-abuse problems, that automatically makes the case less valuable. That is not necessarily true. Criminal-defense lawyers have the ability to find the most redeeming qualities in their clients. If they can bring out the best in their defendants, we surely can do it with our plaintiffs. All it takes is a little time and compassion. After all, we are in the business of helping people.
As soon as you learn of the slip-and-fall incident send a preservation-of-evidence letter to the entity where the incident took place. Grocery stores and retail establishments are notorious for “losing” video surveillance of your client and of the incident. You need to be prepared to fight this issue. If you have never sent a preservation letter, you can find a sample on CAALA’s listserv. You want to set up the defense for a spoliation-of-evidence issue before or at the time of trial. I can count the cases on one hand where the defense actually provides the video of the incident.
You do not have to give defendant notice of a site inspection. I prefer to send my expert to the site of the incident without the defendant knowing. There is nothing improper about a covert inspection. The element of surprise may yield useful information before the defendant takes subsequent remedial measures. Evidence from these inspections is absolutely admissible. If applicable, make sure the expert takes all necessary photos, measurements, and testing. Of course you run the risk of having your expert removed from the site, but this has yet to happen. If you have a good expert, then he or she should have no problem conducting the covert site inspection. In addition to having my expert go on a “non-noticed” site inspection, I also want them to go on a noticed site inspection where I specifically request to see the video surveillance room and each video monitor for all cameras in the store. I want to know exactly where any and all cameras point in the store. The most common defense argument other than we “lost” the video or it was “overwritten” is that the camera where the incident took place “did not capture” the area where the plaintiff fell. If you have a slip-and-fall incident make sure to consult with a safety expert to determine whether floor testing should be conducted. The vast majority of the time, if the floor is not slippery when the substance is on the floor, then you may have serious issues with liability.
Depositions and discovery
Before any depositions I propound focused discovery asking for all safety manuals, sweep sheets, timecards, policies and procedures manuals, videos of the incident, the plaintiff, and employees conducting their sweeps, prior history of customer or employee injuries, or anything that the defendant uses to train or instruct its employees on safety, inspection, repair, maintenance, and preservation of evidence. I have yet to find a defendant who has actually produced all of the material in their possession as requested in discovery. Follow up with a meet and confer on these issues and be prepared to file a motion to compel. If you are in Los Angeles Superior Court you will have to go through an informal discovery meeting short of filing a formal motion.
Some people like to take a minimalist approach to depositions and the number of employees they depose. I think it is important to depose any employee with information about the incident as well as the person most knowledgeable about all policies relating to maintenance, inspection, repairs, safety, video surveillance, asset protection, and personal injury claims. There may not be a person for each of those positions and often times there is overlap from the above positions. These depositions can produce a plethora of useful information you can use to settle your case or inflame a jury during trial.
It is important to videotape the depositions of employees so you can use it at the time of trial. If you are low on funds, you can set up your own camera and videotape the deposition. You can do this for any employee or witness other than experts. With experts, you need to hire a professional videographer.
I study all of the discovery that the defendant produces and draft focused rule statements, starting from a very general rule to more specific rules. There are several pieces of literature that advocate for using this strategy, most notably by attorney Rick Friedman. If you study the handbooks and manuals produced by the defendant, you will be able to lift rule statements directly from the book. I also take a “pop quiz” approach in my depositions to set up defendant employees. I try to test the employee or person most knowledgeable (PMK) by asking them about all the rules that the defendant had to follow in the incident involving the plaintiff. It is amazing how little employees know about their stores and how they operate. The purpose of doing this is to set up the defendant and show that their employees are poorly trained and do not know how to implement the most basic rules that are in place to keep the corporate store safe. After quizzing the defendant employee, I then ask whether he or she agrees with my rule statements. Almost always, the employee agrees with each of the rule statements. Later at trial, I can show a jury every rule the defendant violated and point to that as the cause of the plaintiff’s injuries. These are important because the jury instruction only requires the defendant to act reasonably. The word “reasonable” is ambiguous on its face and its meaning changes depending on the situation. Rule statements also help concretize the negligent act.
If there is no video of the incident, you must question the defendant’s employees and person most knowledgeable on the issue. You may get a host of answers all of which are attempts by the defendant to skirt the issue. Make sure to ask the “who,” “what,” “when,” “where,” “why” and “how” questions and continuously follow up during the deposition. Nearly all corporate entities have a procedure in place where they must obtain the video and then send it to corporate headquarters. It is very rare that you will get an employee to admit they destroyed the video. Nearly all of the time, you need to find the person that was in charge of preserving the video and question him or her on the issue and bring up the preservation letter you sent when you initially got the case along with discovery responses indicating there is no video.
Notice of the dangerous condition
Sweep sheets, timecards, video footage of cleaning, oh my! Does your case have a sweep sheet that was signed one minute before the incident? Is this one of those anomalies where the defendant actually produces a video of their employees sweeping or your client taking a spill? Don’t worry because the defendant may still be on notice and liable.
Let’s start with the sweep sheet. First, sweep sheets, as we all know, are very easy to fabricate. There was a recent case where a defendant produced sweep sheets, claiming they swept the floor every thirty minutes. They actually produced video footage and no employee was seen sweeping or walking the floor for hours. Instead, the employee who signed the sweep sheet was busy on her phone in the office. This happens all too often, so don’t worry if the defendant produced a sweep sheet; it may not necessarily prove anything. You can also cross- reference the timecards with the sweep sheet. There have been instances where the person signing the sweep sheet does not match up with the time he or she worked; that’s another nail in the coffin for the defendant.
Now, assume the worst-case scenario where defendant produces a video showing an employee sweeping the area, a few minutes later a customer spills water on the floor, and your client is seen walking by the water, slipping and hitting the floor. The defendant will claim there is no way they could have known of the dangerous condition and they did everything reasonable to prevent the dangerous condition. There is one major way to overcome this scenario, but you have to establish a few things.
First, the floor must be slippery when wet. Have an expert go out and test the condition and determine the type of flooring the defendant uses. Some stores actually have slip-resistant floors, but the vast majority does not. Second, you must establish in deposition or discovery that employees have knowledge that water or other substances regularly get on the floor. You should also be able to get a history of past slip or trip-and-falls where an employee or customer fell on water or another substance. Most defendants will not produce this during your initial discovery requests, but follow up when you paper them with a motion. This proves that the defendant knows their floor gets wet and that it has happened before. The key here is that the defendant knows the following: 1) their floor is slippery when wet and is thus a dangerous condition; 2) they know they have had prior incidents where people have slipped on water; and 3) they choose to maintain a floor which is not slip resistant when wet.
If you hire a qualified expert, they will be able to testify that the defendant’s floor was dangerous and no inspection system would be sufficient to alleviate that danger to customers and employees. The proper action by the defendant would be to maintain slip resistant floors. The cost of changing a corporate entity’s floor is generally significantly less than the cost of your plaintiff’s injuries. The key to this argument is that you shift the notice and dangerous condition from the particular spill to the entire flooring.
Everyone has their own style and method for voir dire; however, there are a few key themes that you need to address. Responsibility is one of the biggest themes in these types of cases. You essentially have a big corporation that is refusing to take responsibility, cutting corners, and putting innocent customers in danger. Feel free to talk to jurors about their general expectations of safety for the various stores in which they shop. They will be forthcoming about what they expect and many of them will provide insight on how to prove your case. Some stores or companies are seen in a negative light by jurors while others are jurors’ favorite place to shop. I have been concerned about this issue before, wondering if jurors will give the defendant corporation a free pass because they “love that store.” Rather than panicking, you should be prepared to deal with this issue. One approach is to agree with the juror and let them know that you in fact love the store as well, which is why it is so concerning. The last thing you would want is this to happen to you or anyone else that loves these stores. If in fact one of these stores happens to be breaking the rules, it would actually be in all our benefit that the store shape up and take responsibility. Since we all shop there, we should help hold the store accountable when it fails to take responsibility. We want it to be safe for our families when they shop there and to walk out in the same condition as they walked in.
I have always believed that the majority of cases are won after opening statement. This is no different in premises-liability cases. One important component is setting up the dichotomy of good versus evil. It is crucial that you show all the ways the corporation knew it was violating rules, cutting corners, and refusing to accept any responsibility. You can list a few of the most important rules that they should follow and include industry standards and their own policies and procedures. If they played hardball and “lost” the video or failed to document critical information, punish them for that in opening. Talk about your client in opening and discuss his or her goals. What were they going to do with their life had defendant not been careless? But for the defendant’s careless actions, the plaintiff would be on their way to completing his or her dreams. Understanding those goals and dreams and the value of them comes from learning your client. As I mentioned earlier, this is an ongoing process and you should be prepared to speak about your client’s dreams as if they were your own.
If you videotaped the deposition of the defendant’s employees, then you can play them during your opening. Make sure you give opposing counsel proper notice and the page and lines you intend on playing at opening. Most of the time, witnesses are not as prepared for deposition as they are for trial and it shows. Facial expressions and awkwardly long pauses are sometimes worth a thousand words and have a greater impact on a jury than the witnesses’ testimony at trial.
Attack the defendant’s experts. The reason the defendant hired experts is to attack your client’s credibility and avoid responsibility. Liability experts are there to establish an excuse for the defendant’s conduct and you must address that in opening. As for damages experts, particularly medical experts, regardless of the medicine behind their opinion, they are ultimately saying the plaintiff is not as hurt which is another way of implying your client is lying.
I generally call the defendant’s employees in my case and chief right from the start so I can establish all the bad acts and broken rules. With each employee witness, establish all the important rules the defendant must have followed and show the jury how the defendant broke each and every rule. One of my favorite questions to ask employees is whether they learned anything from the incident. It is a double-edged sword because if they answer in the affirmative, then we know they failed to do something; if they deny it, then the jury will punish them for being disingenuous. You have to make sure to address any missing video, hidden evidence, or discovery abuse. These bad-faith acts by the defendant only anger jurors and establish the defendant’s betrayal.
This is the time to go over what actually happened during the trial. Do not just rehash what you said in opening. Make sure to address the verdict form and go over the jury instructions. If the defendant claimed they lost or misplaced the videotape or provides some other dubious excuse, you have to make sure you use the following CACI jury instructions: “203 Party Having Power to Produce Better Evidence” and “204 Willful Suppression of Evidence.” If you were unsuccessful at getting terminating sanction for the lost or misplaced video before trial, you will almost certainly be able to get a jury instruction for willful suppression. It is imperative that you discuss these instructions with the jury and inform them that the defendant could have absolved themselves from liability had they just shown us the video. We all know that if someone was caught stealing, even if it was for a pair of underwear or a can of soda, they would have the video. When it comes to asset protection, they are on top of it, but conveniently lose the video when your plaintiff gets hurt. Hit them hard for this and hammer it home throughout the trial, not just in closing.
Premises cases lend themselves wonderfully to community arguments without violating the so-called “Golden Rule” argument. Address this issue once again as you did in voir dire and opening. We want the stores and places we visit to be safe for everyone, including the healthy and disabled, weak, and strong, as well as the young and old. If a corporation wants to make money off the people in our community, then it must play by the rules and the only way they will listen is with a jury verdict.
Thomas Steven Feher is an associate trial attorney at The Simon Law Group, LLP. In just under three years he has tried over a dozen cases, including auto-accident cases, dog bites, premises-liability cases, and products liability. Thomas received his J.D. and Certificate in Dispute Resolution from Pepperdine. Before law school he obtained a Bachelor of Arts in psychology, political science, and philosophy from the University of California, Santa Cruz.
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