Deciding the claims of negligence and safety rules to be used in trial
I was working on this posting when we settled the birth injury malpratice case I was going to try a week for a cash settlement of $20 million. But, this is what I was doing about developing rules to be used in the trial. See what you think
As I prepare for trial I am focusing on what safety rules we should use and what claims of negligence we should use at trial.
As to safety rules or rules governing conduct, I believe we should have no more then three basic rules. As to what we are saying constituted negligence, I believe the same – no more then three claims of negligence. However, this applies to what will be the primary emphasis in opening and throughout the trial. You can have additional rules as well as claims of negligence which are secondary. These are used to supplement the primary ones during direct and in cross examination. So here’s my thoughts:
We need a primary rule or no more then three primary rules. This rule must:
(1) Be short and not complex – simple, easily understood
(2) It must capture a broad universal premise which is not disputable and makes sense
(3) They must apply to all of our primary claims of negligence in the case
We can have secondary claims of negligence, but thse need to be clearly spelled out, serious in nature and not subject to being trashed. So, we can point out changes in the medical records or other items that show carelessness, but which are not the primary claims of fault.
We can also have secondary rules of conduct. If, for example, our basic rule is that a driver must never change lanes without making sure it is safe to do so, other points can be made in direct and cross as well that supplement the basic claim. For example, there shouldn’t be things which obstruct the driver’s view in making the change. It should be done at a safe speed. It should be done carefully and so on.
What is important is that we have in mind why we are suing? Specifically what did the defendant do that caused the injury. Why was it wrong and unsafe. We must have in mind the rule of conduct that applies broadly and is generally accepted. For example: "A driver must drive at a speed and an distance far enough behind the car ahead in case the car ahead needs to stop or slow suddenly for an emergency. This is the rule of safe driving because a car ahead may have to brake for an emergency and if there is not a margin of safety a rear end collision can result. One of the reasons we are suing is because the car ahead was confronted with an emergency when a chair flew off a pickup truck causing the driver to brake to avoid hitting it."
So, we need rules of conduct and reasons why we are suing. Think these out carefully because they frame your case. That is, they become what the case is all about. If you choose a rule or claim of fault that is unacceptable to the jurors or not proven at trial, you have a big problem.
Think about this.