Mitigating the impact of evidence that works against your case

We once were assigned a plaintiff’s case where our driver died after running into the back of a parked truck.  A few minutes after arriving at the crash site, we called our attorney, and the conversation went something like this:

Us – Your client was driving on a straight road with a clear line of sight for a half a mile before colliding with the defendant’s parked truck.

Attorney - So you are saying that we also carry some fault in this accident?

Us – Yes, but we still think you have a chance of winning the case.

Attorney – Thanks for letting me know.

The case turned into a multi-million dollar victory for our side.

Four principles for dealing with adverse facts in an investigation

Find them early in the case

In other cases, that kind of phone call stopped the investigation before we ever took a photograph.  It usually involves tire marks that prove our client is on the wrong side of a roadway.  The best attorneys appreciate that we have minimized their investment in the case and have since asked us to work on other cases.

Find them even when you are not asked to do so

On yet another case, while analyzing the defendant’s dash camera footage, we identified that our driver was likely speeding before the defendant turned in front of her.  We immediately notified our attorney to let them know about the possible argument that could be made by an opposing expert.  We find that attorneys appreciate this when they are trying to decide between a mediated settlement and choosing to take the case further.

Know that accepting problematic evidence earns credibility for your other findings and opinions

In the case where we won despite our driver colliding with a parked truck, the other expert concluded that our driver had 1300 feet to see the parked truck.  We pointed out that it was actually 2600 feet, which made our client look even worse for not recognizing the threat. 

While that fact did not help us in the short term, the driver of the truck was the only witness to the collision, and we needed the jury to conclude that he was not telling the truth about what happened in moments before the crash.

When possible, show how an adverse fact is more damaging to the other side

The driver of the parked truck claimed that he had looked behind him, did not see any approaching cars, made one attempt to re-start the truck, and was getting ready to step out of the truck out to put out safety triangles. 

If we had let the other expert use 1300 feet to calculate the time that our driver was visible, the driver’s description of his actions would have been more plausible.  Because we proved that our vehicle was actually visible at twice the distance, the driver lost more credibility with the jury because he clearly had more time than he alleged.

In summary, if disqualifying facts are found early, they minimize wasted time and money on a hopeless case.    If attorneys are not seeing possible problems with their case, I want them to hear it from me rather than when they read it in the opposing expert report.  But most importantly, I want a jury to believe that I am fairly presenting facts so that when I present my opinion, they can be at peace with handing out a verdict in a difficult case.