A. This is the polite way I have to fight defendants who move the court to dismiss my client's case. (Page 1 of 15).
In a chain reaction freeway collision, both defendants admittedly rear ended the vehicles in front of them. They claim they are neither negligent nor a proximate cause of injuries to Mr. F who was smashed in between them.
If this collision had been caught on film, the defendants would not have the temerity to bring this motion. But due to darkness, air bags deploying, and various levels of unconsciousness, the individual participants are not always precise in the retelling of the story. Thus giving rise to defendant’s misplaced hope that they can avoid responsibility.
The defendants effort should fail for the following two reasons: 1) the facts as perceived by five different witnesses, are clear enough to prove negligence and causation when viewed in the light most favorable to plaintiff; and 2) the expert forensic reconstruction of the collision performed by expert Larry Tompkins fully supports plaintiff’s liability case.
B. Here is wishful thinking of what I'd like to actually tell the court (Page 1 of 1):
This motion is a frivolous waste of time. The defense filed this because they get paid by the hour and don't care if time is wasted. Their actions caused Mr. F's car to get bashed to holy heck. Their dumb motion should be thrown out of court.
C. Here is the letter I sent to the defense counsel after I had to write the formal (polite) motion response.
D, And then what happens?
Well, as of today Sept. 13th, one of the defendants has caved. If the other one doesn't drop it, he will be pounded to smithereens at the hearing.
There is a school of thought that you should not object during trial. Just let the bad questions go where they will. So the jury won't think you are trying to hide something by objecting. Maybe so. Maybe not.
But in a video perpetuation deposition the court rules on the objections ahead of time. And then the videotape is edited. The jury isn't dragged through the technical details.
In this example, the defense lawyer is used to leading his witnesses by the nose through their depositions. Enter one irritated plaintiff lawyer (moi). Here is how it starts off.
11 Q So when you use the term "volitional control," you
12 mean something that you can verify?
13 A Correct.
14 MS. KOEHLER: Object to the form of the
15 question. Leading.
16 Q Is that correct, Doctor, that objective refers to
17 something that can be verified?
18 A It does.
19 MS. KOEHLER: Same objection. Double
Now this could go on all day. Instead, after suffering through a bit more of this, I try to deal with it in one fell swoop:
9 MS. KOEHLER: I'm going to -- I'm going to
10 object and I'm going to ask for a side bar right now.
11 A, every question you ask is leading. The
12 reason that I notice this is because all the Doctor is
13 doing is saying "yes." There's no explanation.
14 So I'm trying not to object to every single
15 question that you ask, but everything that you've
16 asked is a leading question. And so I can just make a
17 global objection to all the leading questions that
18 you're asking, but then you're not going to be able to
19 cure them if you choose to do so. So I'm not trying
20 to be difficult, but that's the clue, is if the Doctor
21 is just saying "yes," it's a leading question. And
22 there's just, it's one after the other, after the
23 other, after the other. So tell me what you want me
24 to do.
25 MR. C: I want you to make your objection
1 to each question if you think it's objectionable and
2 tell me the basis for it.
3 MS. KOEHLER: All right.
Sigh. The defense lawyer wants me to object each and every time. And I do so. With nicely rolled eye balls.
Once upon a time, a dude entered an intersection and decided to turn left. Problem was, there was another car (lawfully) coming on through. So he crashed into it. Since the female driver had a green light, anyone who drives a car knows - the dude should have yielded right of way.
Enter the defense lawyer.
I file the complaint. The defense lawyer says -dude is not at fault. I bring a motion to kick out the bogus defense. The lawyer then threatens to ask the judge to sanction me for bringing a "frivolous" motion. I ask his supervisors to remove him from the case. They don't.
This is all part of the insurance company's plan. It is called Deny. Delay. Defend. It is also called scorched earth tactics. Designed to wear us plaintiff lawyers down. Unless we have DNA that acts in reverse when confronted by adversity. In which case... Bring. It. On.
Here's the transcript from the hearing. You will be dazzled by the brilliance and logic of the defense lawyer's reasoning. Or maybe not.
MR. SCISCIANI: Your Honor, Counsel for the
1 plaintiff is correct, this is a case about a car accident
2 in which the defendant, Matthew K, my client, was indeed
3 turning left and that's when the collision occurred. The
4 scope of undisputed facts, that's it. We don't have any
5 evidence submitted by the plaintiff on Summary Judgment to
6 close the door on contributory fault. She seeks an order
7 characterizing our client, Matthew K as negligent, and
8 the sole cause of the accident. She seeks an order
9 characterizing her own behavior as blameless. What the
10 plaintiff asks for by their Motion for Summary Judgment is
11 provided for in a jury instruction, which underscores the
12 fact that this is a question of fact for the jury. The
13 jury instruction specifically says, and it is quoted in its
14 entirety on Page 10 of our brief, it says, "Statute
15 provides that a driver intending to turn to the left within
16 an intersection shall yield the right-of-way to any vehicle
17 approaching from the opposite direction that is within the
18 intersection or so close thereto as to constitute an
19 immediate hazard." This right-of-way, however, is not
20 absolute but relative. And if we look at Washington case
21 law --
22 MS. KOEHLER: Your Honor, I ask that he
23 complete reading that.
24 MR. SCISCIANI: I'd be happy to. The entire
25 jury instruction is submitted in our brief: "And the duty
1 to exercise ordinary care to avoid collisions at
2 intersections rests on both drivers. The primary duty,
3 however, rests upon the driver turning to the left, which
4 must be performed with reasonable regard to the maintenance
5 of a fair margin of safety at all times."
6 If we look at the case law, even the cases relied
7 upon by the plaintiff, there's cases -- there are cases out
8 there, there's one in particular, the case that we cited in
9 our opposition, that involves a pedestrian who was lawfully
10 in a crosswalk with the walk signal. The question of
11 whether that pedestrian should have looked to see if there
12 was traffic that was not going to yield was submitted to
13 the jury. The court underscored the fact that those issues
14 are questions of fact, they're provided for in the jury
15 instructions, and certainly in this case we recognize that
16 our client had the obligation to yield right-of-way. The
17 question, then, is, did the plaintiff have an
18 opportunity -- we've all been cut off at intersections. We
19 can't just steamroll through and plow into the left turning
20 vehicle, get out of our vehicle and blame it. It's not
21 strict liability. The oncoming driver has an obligation.
22 If the jury finds that she had an opportunity to avoid this
23 collision, then there's contributory negligence. Now, it
24 may be a 90-10, it may be an 80-20, may be 70-30, may be
1 The point is, on summary judgment without any
2 evidence submitted by the plaintiff on the issue of
3 contributory fault, the door stays open. The record is
4 devoid of evidence that she took evasive action. As the
5 moving party on Summary Judgment, seeking to close the door
6 on contributory fault, and to seek an order from this court
7 as a matter of law that her behavior, her driving was
8 lawful and blameless, she has to come forward with the
9 evidence to merit such a characterization. There's no
10 evidence -- I've already read before the court the
11 statement from the witness that the vehicles collided.
12 They shed no light on evasive action. In fact, it's devoid
13 of any evidence that Ms. L swerved or braked. From
14 the photographs, it could be reasonably deduced that these
15 cars would not have collided, notwithstanding my client's
16 failure to yield had some evasive action been taken.
17 Now I'm not going to purport to be an accident
18 reconstructionist, and I'm not going to purport to have
19 been there at the accident to characterize what exactly
20 happened. That's for the witnesses, that's for the jury.
21 That's all I have, Your Honor.
22 THE COURT: Counsel?
23 MS. KOEHLER: Your Honor, did you see the
24 photographs of the vehicles? [head on impact]
25 THE COURT: Yes.
1 MS. KOEHLER: The defendant has, on a
2 comparative fault claim, which is an affirmative defense, the
3 burden of proof . There is no attempt other than speculation to say
4 that this person, Miss L, going through a green ball
5 on a green light behind another vehicle did anything wrong.
6 For this reason, we believe that Summary Judgment on these
7 facts should be granted.
8 THE COURT: All right. Partial Summary
9 Judgment is granted on liability.
10 MS. KOEHLER: Thank you, Your Honor.
Diagram: By the defendant in his deposition.