By Don Keenan
We’ve traveled over the first three important parts of witness preparation:
- Getting to the true self-awareness/authenticity,
- Removing the guilt, and
- Embedding the Major Truths of the client.
In our journey, we have recognized that the Reptile© is at the core of each of those important client realizations. Before we move on, we need to address another equally important area of the witness preparation and that is what frequently occurs: The client’s contributory/comparative fault.
The survival Reptile© in us simply wants to ignore any arguable contributory/comparative fault within our client. But if we ignore it, will it go away? No, woodpeckers, that dog won’t hunt. Not only will it not go away, it can potentially kill your case.
Today we’re going to talk about how to embrace contributory/comparative fault and improve upon it in order to, in many instances, win your case. This topic is so important that I put it on a separate DVD which is included on the Keenan Method of Witness Preparation series. Because the DVD goes into quite a bit of detail on this subject, so you should review it at some point.
THE STORY/PARABLE
You all know by now that I enjoy teaching through stories/parables and will do so now.
Shortly after the Keenan Method to Wit Prep DVD series came out in 2009, I received a call from an out-of-state lawyer who said he had a great damages case but was afraid the contributory/comparative fault would either lower the damages or result in a defense verdict. Sound familiar?
He outlined the facts: His client was an Olympic athlete in training for some type of triathlon and was in the mountain roads of Colorado heading up a hill when she was confronted by a truck, speeding and coming across the center line in the opposite direction. The bicycle athlete swerved to the right to avoid certain death and became paralyzed from the waist down in the process.
I thought for a moment and said it sounded like a great case, why do you need me? He said his client is a very truthful person who admitted to being two feet outside the designated bike lane. I must admit that when I first heard it, I saw it as bad news. So we worked out an agreement, as customary, and ran a couple focus groups to find out just how bad the bad news was.
One focus group put 7 percent negligence on the bike rider and a second one put it at 5 percent. We scheduled two focus groups in the venue right before we scheduled the plaintiff’s deposition. One focus group put fault at 3 percent and the other 8 percent negligence on the bike rider.
If you want verification of how strong compliance with rules is by not only the defendant but also the plaintiff, listen to this: All four focus groups autopsied the mechanics of how the wreck occurred and each and every one of them came to the realization that the woman being two feet outside the bike lane had absolutely no effect on her injuries.
She swerved to avoid the truck and the focus group found that if she would have been smack in the middle of the bike path, she would have swerved anyway and the same injuries would have occurred. However (and this was the big lesson), no one was going to give her a pass on breaking the rules. She should have been in the bike lane but she wasn’t; therefore, she had to bear a certain percentage of the fault.
Now all you law review folks and order of the cliff Bubbas will probably argue that unless the rule violation caused damage, then it should be irrelevant. I’m not smart enough to figure that one out and don’t care because I can live with (and, in fact, embrace) the 3 to 8 percent range. It’s a gift, which you will realize in a moment.
So I began to prepare this beautiful, spirited young lady per the seven steps on the KWP template. When we got to her concerns, it was no surprise that she said her concern was that people would blame her for being outside the bike lane.
Because she brought it up first and was honest about it, I knew everything would turn out fine.
Now, do you think I jumped in and told her about all the focus groups and the findings and the rationale? Hell no! I asked her to peel back the onion and reveal what percentage of responsibility she felt she had. (There’s a beautiful story regarding the details of how she answered this question, which I’ll leave to those who watch the DVD.) She came to rest at 5 percent and did state emphatically that it was the most painful, difficult question she ever had to ask herself.
Over the next couple of days, I worked through the remainder of the witness preparation template and I went into the deposition confident – no, there’s a better word, overpowered with how this would work out.
The Black Hat reached the point of asking, “You don’t accept any responsibility for the outcome of your injuries, do you?” (Just look at how that question is phrased; mean spirited, condescending.) She replied in a mild mannered voice, “Yes, I do.”
In hearing that answer, the Black Hat simply asked the mean spirited question again, as if he hadn’t heard it or he didn’t believe it. Upon second asking she said, “Sir, I just answered that question and yes, I do accept partial responsibility for what’s happened to me.”
I’ll add here that Abraham Lincoln once said that if you want to confuse and conflict your enemy, just tell them the truth because they won’t believe it.
It took the Black Hat a moment or two to compose himself, but he rebounded to typical Black Hat blabbering. “If you say it’s a percent then it could be 7 percent, isn’t that true?” and that dance lasted for five or six questions until he got to the point where he closed his legal pad and out the door he went.
Several days later, before the scheduled mediation, the case settled for policy limits.
I could just imagine the Black Hat, going back to the Taliban cave and telling his troops that this beautiful athlete in a wheelchair admitted 5 percent responsibility. He no doubt said something like, “How in the name in heaven are we going to say zero fault on our driver when he was speeding, had bad brakes and crossed the center line?!”
So there you have it my fellow Bubbas and Bubbettes, the case became bulletproof when the defense realized they could not try the case, looking into the jury’s eyes, and telling them the defendant was zero percent responsible.
We’ve done the deposition of the plaintiff admitting a certain percentage many times and it usually follows the same outcome: The Black Hats realize they’re cooked; there is nowhere to run except, of course, the stipulation. And they know by now they’re going to get hammered with the Reptile© in the stipulated case.
THE TIPPING POINT
Let me now address the ultimate tipping point in that case, which I believe will happen in all of your cases as well: When you compare the fault of the plaintiff versus the fault of the defendant and spread the tentacles of harm (remember there’s three legs on the STD stool, and here we’re talking solely about the “harms” leg), then your case goes on steroids.
Let’s look at the harm caused by a bicycle being two feet out of the bike lane, traveling up hill. The only harm that’s going to occur is to the bicyclist. Now let’s look at the harm caused by a speeding truck with bad brakes crossing the center line. That harm is death, brain damage, amputation, paralysis, blindness and the list goes on. Ask Bubba, between the trucking company and driver versus the bicyclist – who poses the greatest harm? Once again the true core of the Reptile© trumps the tricks and manipulation of the Black Hats.
ADDITIONAL COMMENTS
Let me anticipate some of your questions… What happens when the percentage on the plaintiff is greater than a mere 5 percent? Well, we focus grouped that issue a number of times and we’ve actually gone as high as 30 percent on the plaintiff and still it’s had no net effect on the outcome. Remember the percentage is only one part of it. The other (more important) part is the harm posed by the defendant versus the harm of the plaintiff. Every case that we’ve done lines up just about the way the truck/driver and bicyclist lined up; no harm by the bicyclist’s actions except to herself and huge community harm by the trucking company and driver.
But it is very important: Do NOT venture into guessing about the percentage. You MUST do focus groups (yes, I said groups – plural – because I don’t know if you want to hang the destiny of your case on one focus group, do you?). The two or more focus groups will give you comfort and soft landing for what will occur in the courtroom. You don’t want to be surprised.
Also, do not underestimate the power of the Black Hat’s realization that they have no credibility in trying the case as a zero percent on their client. That course almost rises to the level of a lie and you know what happens when that occurs.
The final question I can hear you asking is, “What happens if the Black Hats admit a percentage but it’s not 50 percent?” Well, to this question my friends, I have to tell you that I’ve not confronted that yet. We’ve not tested it yet. But we are now at a time where the Black Hats are throwing anything and everything on the wall to see what sticks, so it’s probably coming. We’ll deal with it when it does.
I had a recent verification of the power of client admitting fault with my good friend Tye Smith, a solid lawyer from Oklahoma and KBC faculty member. I’ve had the pleasure of working as co-counsel with Tye on several products cases.
Recently, Tye had a tractor-trailer case in which the focus group indicated 15 percent fault on his client. Tye proceeded to trial, mentioning in opening statement, “Ladies and gentlemen, my client is accepting partial responsibility for this wreck.”
That’s all he said.
The jury hung up 11 to one in favor of the plaintiff and the judge called the jurors in to discuss their preliminary findings with the lawyers and carrier. During that debriefing, the judge asked whether they put any fault on the plaintiff and they said yes (the answer was 15 percent, the exact figure that the focus group assigned). The results of this case are even more astounding given that the courtroom watchers (to include the judge) thought, frankly, that the plaintiff’s fault was high – almost in the category of a defense verdict. It was also remarkable because Tye never told the jury that 15 percent amount; they got there all on their own. To have them mirror exactly what the focus group said is another testament to the power of the focus group. Thus, proceeding without focus groups is foolhardy at best.
BOTTOM LINE: Do not underestimate the power of the truth in admitting that your client was partially responsible. To do so creates a powerful balance of credibility between the plaintiff and the defense saying “no liability.” And to do this effectively can be a real game changer, not only in your case but eventually within your practice as well.