At Home, But Not Alone Brushstroke #42

I just finished a trial Friday. It was a car crash where the defense admitted negligence. They defended in the typical way by saying it was just a sprain/ strain or bruising that healed in  a month, and that all the pain after that (in her back, neck, shoulder and knee) was  unrelated to the crash; it was all just the normal aging process (degeneration). Our client  worked as an assistant in the laundry room at an old folk’s home. After recovering from the  crash, she returned to full time work. She was a legal resident from Columbia, who did not  speak English and had to testify through an interpreter. We were in a conservative area in  the middle of the state of Florida. The defense had surveillance showing our client  shopping and picking up bags of potatoes and other items. The film did not show any  “gotcha” moments. Instead, the defense was counting on making her look healthy and  active. The defense suggested a verdict of 100k to cover her medical treatment for the first month, then nothing after that for medical expenses nor pain and suffering. The jury  returned a verdict for 1.3M dollars, which was fair and reasonable.  

There are several things from the trial that I want to share with you in the next couple of  brushstrokes. Let’s start with countering the defense’s use of one of their favorite words,  “accident”. They use it to tap into the old saying “accidents happen”, meaning it was an  innocent mistake so there should be no accountability. I came up with an effective way to  counter that misleading psychological ploy. It involves pointing out the difference between  a pure accident and a formal civil wrong that rises to the level of negligence. You explain  the following during voir dire and reiterate it in opening: 

Negligence is a formally recognized wrong in the American civil justice system. It is a violation  of civil law. It does not involve causing harm intentionally or on purpose which is a crime  under the criminal justice system. On the other hand, it is more than a pure accident, like  stepping on someone’s toe while dancing or a child throwing a baseball inaccurately and  breaking a window. What the defendant did here was more than just a pure accident. It was  the failure to use reasonable care which qualifies as a civil wrong, a violation of the duty to  use reasonable care when other people’s health and safety is at stake. People have a right to  not be seriously injured by others who fail to act reasonable. If it happens, the law provides  accountability and a remedy.  

[If negligence is admitted, add the following.] 

In this case, there is no dispute that defendant’s conduct rises to the level of a formal civil  wrong under the law. He acted unreasonably, period.