By: MICHAEL PETERSON, KEENAN LAW FIRM
Important update in Trending this week: The Keenan Law Firm announces fellowship program; click here for more information.
This month’s Reptile© Superstar is Bob Genis. Bob practices law at Sonin & Genis in the Bronx, NY. His firm specializes in med mal, motor vehicle collision, municipal liability and police brutality cases. Bob is very active in the New York Trial Lawyer Association. Bob loves teaching at his state’s CLE courses, writing law articles for the state Law Journal, and participating in trial lawyer groups.
Bob’s introduction to the Reptile© started with Moe Levine’s summations and trial techniques. Bob began hearing about the Reptile© in 2009. Interested in the theory, he decided to purchase the book. Bob could not believe the amount of useful strategies that Don Keenan and David Ball included in this book; he thought it was simply brilliant. Bob’s enthusiasm for the Reptile© prompted him to attend the Reptile© Intro Seminar. Bob believes the Reptile© has played a significant role in overcoming the proponents of the tort reform movement.
Facts of the Case:
Bob’s client was a 78-year-old pedestrian who happened to be crossing the street at the wrong time. A few blocks away, undercover police were engaged in a “buy and bust” operation designed to catch drug dealers.
A number of undercover police and unmarked vehicles were used in this operation, including three plainclothes cops parked on the side of the road in an unmarked rental minivan. According to the police, they witnessed the passenger side mirror of another minivan (operated by Mr. Gonzalez) hit the driver side mirror of the unmarked police minivan. The police believed Gonzalez should have stopped and had an officer document the wreck.
Gonzalez, insured with a minimal $25,000 liability policy, claimed that his car never hit the side mirror of the unmarked police minivan. Bob believed that the police officers were bored and simply wanted to harass someone. Despite the variances in each side’s telling of how things happened, both parties agree that the unmarked police van then followed Gonzalez’s van after it passed by.
Gonzalez began to become suspicious of the unmarked van, as it was tailing close to his car and making all of the same turns. While Gonzalez denied that he ever exceeded the speed limit or violated any traffic control devices, he maintained that the unmarked van remained hot on his tail.
The police denied that they ever chased Gonzalez or violated the speed limit or traffic devices; rather, they claimed they were merely following him. They did admit they never lost sight of Gonzalez, and said he continued to speed up in hopes of escaping them. According to the police, Gonzalez approached the intersection of a residential city street near a school driving 50 mph, where he ran a red light and smashed into Bob’s client. Bob’s client was in the middle of the crosswalk at the time. Gonzalez said that Bob’s client ran out into the middle of the street and that the traffic light was green. The police in the unmarked car arrested Gonzalez at the scene of the wreck for reckless driving. Eventually, the charges against Gonzalez were dismissed.
During a hearing, Bob’s client testified that he was facing a red light. The police took that to mean that Bob’s client was attempting to run across the street against a red light, and thus caused the collision. However, Bob’s client meant that the traffic light for Gonzalez was red, which meant that he had a white pedestrian crossing light when he entered the intersection.
The police argued that Gonzalez was 100 percent at fault; they never engaged in a high speed chase and they used a police “bubble light” while following Gonzalez. They contended that Gonzalez was a reckless driver who ignored all of the safety rules. They also said that Bob’s client was at fault for running out in the middle of the street against the traffic light.
During the collision, Bob’s client suffered a laceration to his liver, fractured left elbow, ribs, pelvis, and to fibula and tibia of his right leg. During his hospitalization, Bob’s client required a catheter to urinate, and subsequently was forced to use pull-ups to support his bowels.
Bob knew his client was telling the truth, and believed that this was the perfect case to try the lie.
Jury Selection:
Bob sought to make this case about the defendants’ lie and failure to follow the safety rules. Bob started his jury selection by asking the jury about their passions. This technique made Bob’s jury comfortable with him and the rest of their jury panel. Bob and the jury really connected, and it gave Bob leeway to address many of the tough issues in his case. Bob subtly addressed his safety rules and code by asking the jury about their expectations of police.
One juror happened to be a subway car conductor, and as such, he must follow many guidelines and rules. Another juror happened to live in the neighborhood where the collision occurred. She discussed how her kids participate in activities in the neighborhood, and she trusts the police to keep them safe by being responsive and safe.
Bob was satisfied with the responses he received. Bob simply wanted the jury to know that he genuinely cared about their opinions. Bob’s bumper sticker for the case was,
“Do you blame the bullet or the one who pulls the trigger?”
According to Bob, the police pulled the trigger by refusing to follow their safety guidelines as they unjustifiably pursued Gonzalez until he hit Bob’s client.
Opening
Bob used his Opening to introduce the jury to his safety rules, which included the following:
- A police officer is NEVER allowed to unnecessarily expose anyone in our community to unnecessary harm.
- A police officer must ALWAYS drive a police vehicle with due regard for the safety of ALL persons.
- A police officer is NEVER allowed to commence and continue a vehicle pursuit when the risks to the public outweigh the danger to the community, if the suspect is not immediately apprehended.
- When a police officer continues pursuit of a vehicle and the risks to the public outweigh the danger to the community, if the suspect is not immediately apprehended and as a result someone is harmed, the police are responsible for all the harms that are caused because an officer has acted with reckless disregard for the safety of others.
Bob placed the officers on the stand first. The code for a good police officer is “S/he will risk their life protecting the community.” Bob wanted to show the jury how the police officers’ conduct contrasted with Bubba’s perception of police. Bob questioned each officer about the purpose of their training manual, which is to keep the community safe. Bob questioned each police officer on the rules of the road within that training manual. Then Bob showed the jury how his safety rules aligned perfectly with the rules of the road that were outlined in the police training manuals. Thus, the officers had no choice but to agree with Bob’s safety rules.
Bob asked the officers why they did not follow their manual and call in their suspicions before they began their pursuit. The officers said Gonzalez committed a misdemeanor when he allegedly sideswiped their side mirror, and they characterized the chase as a “necessary attempt to apprehend a criminal.”
Bob got one of the cops to admit that Gonzalez did not actually commit a misdemeanor; instead, it was a mere traffic infraction. To tell the jury that someone committed a crime and not an infraction could be misleading; thus Bob gave the cop an opportunity to restate his answer, but the officer was indignant. Bob had the officer admit there was a big difference between a crime – a misdemeanor – and a traffic infraction, and that the officer knew the difference. Bob then asked the officer if he could please tell the jury what it is called, according to his police training, when someone falsely testifies under oath. The officer responded: “Perjury.”
Bob asked the officers: Had they considered what was best for the safety of the community when they began their pursuit? Did they feel it was more important for them to stay parked and arrest heroin dealers, or pursue someone for a traffic infraction?
He spread the tentacles of danger when he had the police admit Gonzalez was recklessly trying to evade and avoid them, making a number of sharp turns and speeding up to 50 mph in a residential neighborhood in front of a school. Bob also honed in on the defendants’ failure to call in the pursuit to a supervisor. He also brought up the fact that the defendants should have at least used a red “bubble” light to signal that they were police officers.
Bob reiterated each of the guidelines found in their training and safety manual, asking them whether they had obligation to follow them. The officers agreed with all of them. He asked whether they weighed the safety of the community when they decided to pursue the plaintiff without showing a badge, honking their horn, using their lights, or following the rules of their safety manual. Had they considered the safety of community? The officers said, “No.” Bob used the same line of questioning for each officer, starting with the rules of the road and then highlighting their safety violations.
The third officer to take the stand said Gonzalez caused an injury to an individual in the police van when he hit the side mirror of the vehicle. This was another lie. He also said Gonzales knocked the mirror clean off their undercover van, but that never happened. This cop also testified that they had used a portable red police “bubble” light.
However, the pictures that the police took showed no lights on the dashboard or on top of car. None of the police officers could explain why there was not a single picture with any police lights. After the officer had repeatedly lied to the jury, Bob asked him whether they have to assume a fake name and persona when they go undercover. He asked whether they have to be a convincing liar.
Bob finished by having the officer admit that, “You have to look at people in the eye like you are doing right now to these jurors and lie through your teeth.” Bob had the officer admit that they were professional liars who received training to testify. The police officer’s lieutenant told the truth and said that they violated the procedures when they did not notify him or call in the incident.
Next, Bob had Gonzalez testify. Gonzalez told the jury how he did not know that the van following him was a police vehicle, and that they never used a siren or flashing light, never showed their badges or identified themselves as police, never honked their horn or signaled for him to pull over. While Gonzales denied that he was speeding or had run through any traffic control devices, he admitted the van was right on his tail and he made a number of evasive maneuvers to escape them because he feared for his own safety. He said he was driving to the nearest police precinct when he hit the plaintiff.
He described how he was spooked by the unmarked van and did not know why he was being tailed. Gonzalez said he had no reason to suspect he was being tailed by police, and that he would have stopped if they made their presence known to him. He regretted the wreck, but in his Major Truth, he told the jury, “If the officers followed their safety manual then this never would have happened.”
Bob’s client took the stand after Gonzales. Bob wanted to take his client off-code. The defense had painted him as someone who ran out into the street against the traffic light, but that was far from the truth. Bob wanted his client to show the jury his client was a responsible, elderly man who was simply in the wrong place at the wrong time. According to Bob, his client was fantastic. Bob’s client came across as a vibrant, hardworking senior – he worked at a card club for rich people, and he golfed and played Ping-Pong. He had great charm and was a lovable person.
On cross, the defense attacked the plaintiff’s prior inconsistent statement. According to Bob, the jury believed that the defense was taking advantage of his 78-year-old client, who they dragged to testify at a hearing after a horrific wreck, and questioned him while he was under duress (under the effect of pain medication). Bob contrasted their depiction of his client with the police officers’ willingness to commit perjury on the witness stand. Bob illustrated to the jury that his client was hit by a car traveling 50 mph, suffered a head trauma, and now the defense was trying to blame him for not remembering things correctly.
Because Bob’s client was treated at a city hospital, the city was the main defendant in his case. For this, he called an examining physician as his last witness. Bob did not want any sympathy given to his client; he simply wanted to make sure the facts of the case were heard. The plaintiff’s examining physician utilized large posters to show all the injuries Bob’s client suffered on the day of the wreck, and described the treatment given.
It was visually obvious that Bob’s client was suffering from head to toe. The jury understood it. Bob was able to explain that this case was about valuing human life. Bob analogized the case to a pilot who may be flying a billion dollar plane in Iraq; if the pilot finds himself in trouble, the priority of the pilot is to get to safety and not save the billion-dollar plane. He used the plaintiff’s age in his favor, talking about how the defendant’s choices turned his client’s golden years into rust, and how every minute of every human’s life is valuable; thus he needed the jury to make him whole.
Closing:
During the defense closing, they argued to the jury that the officers’ untruthfulness was irrelevant. They failed to take responsibility for their actions and did not find anything wrong with failing to follow the guidelines and procedures in their safety manual. Bob informed the jury that the defendant wanted a free “pass” on their actions. He explained that none of the police policies or procedures permitted the officers’ actions, yet they engaged in them anyway. He explained that each officer – despite of their being aware of their shortcomings – refused to accept their responsibility for this matter.
Bob had the jury consider what a defense verdict would mean. He pointed out, a police officer’s badge is a privilege, not an excuse.
He asked the jury, “Who is responsible for policing the police?”
Bob had them consider the fact that not a single officer had come forward and mentioned that they followed the proper protocols found in their training manuals and guidelines. He also addressed his client’s damages in closing. He didn’t want to bore the jury with medical material; he simply wanted to paint the picture of his client, who was looking for closure. Bob described his client as a wonderful husband who wanted to provide for his wife as they grew older together. But due to the wreck, Bob’s client could no longer do that. He couldn’t use the restroom, or get dressed, or make himself food, without the assistance of others. And despite his condition, Bob pointed out the defense had forced his client to come into a courtroom full of strangers in his most vulnerable moment to seek closure. Bob referred back to the good old days, when people didn’t have to sue each other because people were willing to admit their wrongdoings and make things right. Bob told the jury that the defense may have broken his client’s body, but they had not shattered his spirit.
Verdict:
The jury returned with the verdict of $28,205,000 for Bob’s client. Bob used kid gloves with the driver and placed a majority of the focus on the police force. The jury gave the negligent driver zero liability, and placed 100 percent of the liability on the police department.
According to Bob, the Reptile© is an incredibly powerful tool. In this particular case, in spite of a conservative jury, everyone understood the rules. According to Bob, “The rules are the heart of the Reptile©.”
Bob is glad to have the Reptile© to remind the jury of the importance of closure, and the power they have to make it a reality. Bob’s focus on his safety rules, his willingness to empower the jury’s role as the conscience of the community, and his swift boating of the defense’s argument truly powered this case forward. Bob left this trial with not only a win, but a stronger belief in the power of the Reptile©.