Contrib Sucks!

Posted by anngroninger on February 19, 2013 – 10:39 am

Source: Bike Law Blog

The-True-Cost-of-Bike-Ownership

The-True-Cost-of-Bike-Ownership

We trial lawyers love to talk about our successes, and we get lots of opportunities to do that. But we’re not just your lawyers, we’re your community. When one of us loses, we share the loss. So here’s a trial story that will tell you how much work we have left to do in North Carolina to protect people riding bicycles. If nothing else, it validates all my harping about how bad the law of contributory negligence is for any injured person.

Monday morning my law partner Valerie Johnson and I lug all our crates of trial notebooks, transcripts, research, blown up exhibits and umbrellas (it was raining of course) from the parking deck, down the street to the courthouse, through security and up the prehistoric elevators to the 10th floor of the Wake County courthouse.

Now starts the most nerve-wracking, ok the second most nerve-wracking part of the trial (the first most is waiting for the jury to come back with a verdict – more on that later). What kind of jury pool will we get? Will all the witnesses show up on time? Have we thought of every possibly factual twist we’ll have to answer to?

As soon as we get there, we find out we have a different judge than we expected. Fine, except the new judge is known to bifurcate trials – meaning we have a trial on liability first, before the jury gets to hear details about damages and decide those. Also fine, except now we have to rearrange all our evidence and tweak our strategy – by tomorrow morning.

Before trial both sides made motions to exclude evidence that the jury shouldn’t hear. Among other things, we asked the judge to prevent the defense from saying anything about our client not wearing a helmet. Of course, he should have been wearing a helmet. But not having a helmet on had nothing to do with why the crash happened and it would just make the jury think he was just a careless person in general. That’s not basing their decision on the real evidence. In reality, our client is a very careful person and he’s been beating himself up for 3 years for having forgotten his helmet that night and deciding to continue his ride anyway. The judge says he wants to hear the evidence before deciding whether the helmet evidence comes in.

By the afternoon our jury venire (the pool of jurors we get to choose from) is ready and they file into the courtroom. Twelve are called to the box, given some brief instruction, and now we’re on. We have about 2 hours total (both sides) to find out everything we need to know about the twelve people who will be deciding the case we’ve been working on for about three years.

A daunting task.

Using most of our strikes, we end up with a pool of 4 woman (one of which is African American) and 8 white men. A couple of people ride bicycles on greenways and fire roads. One guy is a motorcyclist. The triathlete was dismissed by the defense. The judge dismissed the older skateboard/cyclist dude who said he couldn’t be fair to the defense. (Come on dude – keep an open mind. We need you!) It could have been worse – we could have ended up with the woman who thought it should be illegal for bicycles to be on the road. “I mean, in Ohio we had sidewalks and they could ride there.”

Jury selected sometime after 5pm and we all leave for the day. Opening statements in the morning. I wake up at 3:30 and after trying to sleep for a few minutes, figure I may as well work. After all, since we had to rearrange the trial, all of my witnesses are going to testify today and I’ll be ON almost all day.

After the opening statements we put on our first witness. Although not everything he says helps us, he may be the best witness I’ve ever seen – extremely likable, former Marine, fine upstanding man who was horrified to see our client’s crash.

The witness was sitting at an outdoor restaurant with friends in the area of town where our crash occurs. There are multiple eating and drinking establishments with lots of activity on a weekend summer night. He happens to look up and sees our client, on his bicycle, with a bright light on the front, coming down the hill toward him. He notices our client because he was riding “at a good clip.” He watches the bicycle all the way as it headed down the hill toward an intersection. Just then, he sees a black SUV making a turn very slowly in front of the bicycle. Our client, on the bicycle, yells out, locks his brakes and slams into the side of the car, smashing the rear passenger window and denting the door.

There are crowds of people out that night and everyone immediately runs to our client, still tangled up in his bicycle, and now bleeding all over the road. The SUV keeps going through the turn and people are yelling out, “get the license plate!” The driver pulls over and two young men get out of the car. Neither comes over to help our client, and the witness later sees them laughing and acting like nothing had happened. He notes the contrast to his girlfriend, who is sobbing because she thinks she has just witnessed a death.

The next witness is our client. He testifies that he is an experienced bicyclist. He doesn’t race or compete or even like to ride very fast, but he’s ridden his bicycle across the country to raise money for a charity that helps former child soldiers in Africa. He was out that night enjoying the outdoors and some exercise. He chose the area of town for a ride because it was well lit and had a lot of activity on the road – pedestrians, mopeds and pedicabs – as opposed to somewhere outside of town where it was dark and there were only cars on the road.

He did a loop through downtown Raleigh and was headed back down the road to his car. He recalls turning onto the street up until about a quarter mile before the crash. Then his memory is completely blank. Since he had no memory (probably because of the trauma) he could only say that the fastest he would likely have been traveling would have been 20-25 mph, and that’s because it was a downhill.

He next recalls waking up in the hospital where he woke up to hospital staff pulling glass out of his neck and dropping it in a bucket; he received over 300 stitches.

The defense cross examines him on his lack of memory. Then they ask him if he was wearing a helmet. We object. The judge lets it in.
Our final witness is an expert crash reconstructionist. Our expert is a former police officer, former intersection designer, an engineer and also a bicycle and motorcycle enthusiast and competitive triathlete who teaches cycling safety and trains police officers.

Early on, we asked the expert to review the case and tell us his findings. At the time, we had a police report with multiple witness statements saying our client was “flying” down the hill and weaving in and out of traffic (much of the police report turned out to be wrong – more on that later). We wanted to know what the scientific evidence said about what happened so we could advise our client how to go forward. The expert concluded that the driver was at fault and our client was not.

A note about expert witnesses. When liability is questioned, I want to know what really happened. I don’t look around for an expert that tells me what I want to hear. That would be stupid. I’d go through a whole lot of trouble and spend a lot of money for nothing. It doesn’t do anyone any good to fudge reality. I want the expert to tell me what really happened, good or bad. Every expert I have worked with understands that and does it. Most of them don’t want to ruin their own credibility either.

In any case, the expert testified that, considering the speed of both vehicles and the distance of the bicycle from the intersection, it would have been impossible for our client to be able to perceive that the car was a threat, process the threat and react to avoid the crash. He just didn’t have the time. We showed the jury blow-ups of the scene of the crash and photos of the damage to the driver’s car to explain the expert’s testimony.

On cross-examination, the defense focuses on the police reports and witness statements in the case. The police report is one of the worst I have ever seen, drawn up by a Raleigh officer who is no longer with the force. Thank goodness. I know some great Raleigh police officers. He was not one of them. In my personal meeting with him right after this happened, he told me he was a triathlete, but hated riding his bike and didn’t think people should ride bicycles on most roads, including the 35 mph urban road where our crash happened.

The officer documented several witness statements that were flat out wrong. The worst – a statement from a witness who purportedly said our client was all in an out of traffic, weaving erratically. We spoke with that witness who said he never saw our client until immediately before the crash and didn’t see any weaving or erratic behavior. He was sitting at the same restaurant as our witness, but had his back to the direction from which our client was coming. He did say our client was riding very fast, “the fastest I have ever seen anyone ride a bicycle.” (based on what he saw the final instant before the crash)

The expert talked about witness perception of speed and how unreliable it is generally, and especially by someone who is standing still and even more especially of someone who is riding a bicycle. All three bystanders testified our client was riding very fast. Although no one said he was going over the speed limit, the defense argued he was going too fast considering the traffic and that it was dark out.

We weren’t planning on bringing up the police report with our expert, because it was terrible. But once the defense brought it up, we asked our former police officer expert to explain: what was the significance of the number “1” written next to the words “alcohol involved.” He explained that it meant that the officer suspected alcohol use by the driver. We were pretty happy that now we did not have to call a police officer to the stand just to explain what that box meant. Oh, our former RPD friend did not take our defendant driver to the station for a breathalyzer either.
That was it for our evidence. We were pretty happy with the result and I think the defense was feeling a little nervous.

The defense called three witnesses – the one I already mentioned, and another guy who was driving down the road in the same direction as our client. He didn’t come across that well, and didn’t score too many additional points for the defense; he did testify that our client was riding his bicycle “very fast” and “flying down the hill.” He also said our client had almost clipped his car and had come around him on the right. We scored a few points with him, including that there was quite a bit of space between his car and the intersection when the crash happened – meaning there was a wide open gap, during which the driver should have seen our client approaching.

The highlight of the trial was the defendant’s testimony. I think I can safely say that he was the most arrogant, entitled, 20 something I have ever seen. The defense attorney really had no choice but to put him on the stand, since he was the driver, but he made sure to get his testimony done as quickly as possible. Then came our turn. It was Valerie’s turn to cross examine. (She was the secret weapon because she is one of the best cross examiners I have ever seen.) In the driver’s deposition, over a year ago, I had asked him what the distance was between him (at the intersection) and the next oncoming car. He had said 50 yards. He said it four times during the deposition. At the end, his attorney asked for a break to speak with his client. When they returned, the attorney asked the driver (who works in commercial real estate) whether he’d be more comfortable estimating distances in car lengths versus yards. He said yes and then said the next car was 3-4 car lengths away. At trial he said 4-5 car lengths. After pointing out how sure he had been about the 50 yards, Valerie asked him what distance he decided it was now, he said, “we’re all constructing our testimony here today.”

She also questioned him about his testimony that he drank one beer while at his home with his friend (the passenger , whose family owned the SUV) between 7:30 and 10:30. The friend tossed the driver the keys to the SUV. They never could get their story straight about why the friend put the driver behind the wheel. At trial, the driver (remember he is in his 20s) said it was because he was picky and didn’t like to park his Lexus in the parking deck. We figured it was because the friend had a DUI pending in another county and they decided the friend had more to risk if they were pulled over. The judge didn’t let us tell the jury about the pending DUI though. By the time the driver left the stand, he was ruined. He was obviously lying and he NEVER said he looked before turning left. The jury had to believe he was negligent. They also had to like our client and dislike the defendant driver.

The contrast between the spoiled defendant and his friend and our client was stark. Our client is a sweet, humble, soft spoken guy, also in his 20s. His wife and parents watched the whole trial and were every bit as salt-of-the-earth as he is. Everything he and his wife have, they have worked hard for themselves.

With that, the defense rested. Nothing left to do but closing arguments and then the case was in the jury’s hands.

The next morning, all three attorneys argued for a total of about an hour and half. I think the jury already believed the defendant was negligent. As to our client’s negligence, I knew the bicycle speed perception was our biggest problem. I talked about most peoples’ perception of bicycle speed – either driving near a cyclist riding way below the speed limit or seeing bicycles riding on a greenway at 10 mph. Of course the witnesses would say the bicycle was riding faster than anyone they had ever seen. In reality, for someone who knows how to handle a bicycle, 20-25 mph on a downhill is no biggie. Think how slow 25 mph feels while you’re driving your car.

There was so much more. I had to explain a lot about riding a bicycle. Every juror looked me in the eye and was paying attention. A few were nodding.

The defense attorney got up next and tried to shoot down all of our arguments. He said our client’s motive for riding fast was “showboating” for the crowd outside the restaurants. It was such a ridiculous and unlikely scenario I had to try not to laugh.

Valerie got up next and talked about the rules of the road and how important it is for someone driving an SUV to LOOK before turning, especially in an area full of pedestrians and vulnerable road users.  Her closing was compelling and powerful.  (If she ever gets tired of law, she should become a preacher, I think)

Then the judge read the instructions and the jury was sent out to deliberate. This is the MOST nerve-wracking part of the trial, as I mentioned earlier. You sit and wait uneasily and try to distract yourself, try to joke around a little to ease the tension. Then whenever there’s a knock on the jury door, your heart starts pounding. Usually it’s a question (can we see the exhibits? Can we break for lunch?) so you settle down again. We had a few of those.

Finally, we hear THE knock. A verdict. The jury files out, takes about a year to get to their seats. The foreperson hands the verdict envelope to the judge, who pulls it out in slow motion, reads it about a hundred times, and finally, hands it to the clerk to read. It seems like ages have passed.
The clerk reads the verdict. I’m paraphrasing a little and leaving out names:

1. Did the defendant’s negligence cause the collision? Answer: Yes

(Whew – they HAD to find that)

2. Did the plaintiff’s own negligence contribute to the cause of the collision? Answer: Yes

(Crap)

We are one of four states in the country that still have the law of contributory negligence on the books. As you can see if you have read this, it sucks. In any one of the other 46 states, the jury would have had to apportion fault and the damages would have been reduced accordingly, but a finding of some fault by the plaintiff would not have barred him from getting anything. In North Carolina, any fault, even 1%, by the plaintiff ends the case and the plaintiff gets nothing, even if he’s quadriplegic.

I don’t know what the jury would have done with a fault apportionment. I would like to think they would have apportioned a greater percentage of fault to the defendant, who refused to admit ANY responsibility whatsoever for the crash, and told the jury that in his testimony. Thanks to this ridiculously harsh law, our client is stuck with all his medical bills. And since it was the passenger’s parents’ car that was smashed in the collision, the driver’s Lexus is still pristine. Good for him.