The intangibles of a highway-design case

These are difficult, costly cases. A strong theme and the right mix of “expert” witnesses can help you beat the odds

2016 November

There are many excellent expositions of the complexity, challenges, pitfalls, and substantive legal issues that surround this truly difficult arena of litigation. This is not one of them. It is, instead, a compilation of observations borne of four decades plus of representing plaintiffs in what are now called “highway-design cases.” The content of those that have offered guidance are valuable. These thoughts are not a substitute. They are intended to augment and make more effective the tactics and techniques of trying this unique category of personal-injury litigation. The basic topics that I have selected to cover are: 1) Safety as a theme in your case; and 2) Non-traditional “percipient” experts.

Safety as a theme

First and, arguably, foremost, is the theme of Safety. It is imperative that plaintiffs’ counsel remember that this accident really did happen and it took only a matter of seconds. A trial will take days, weeks, even months, but the jury must understand that in a matter of seconds, a great tragedy resulted. Extended periods of evidence can blur or eliminate the reality that the plaintiff was caught in an uncontrollable maelstrom over which no effort of controlling the vehicle would prevail. The obligation of the plaintiffs’ lawyer is to counter the juror tendency to view the trial as they view a TV procedural.

Design criteria for roadways exists because most types of accidents have happened before. There are multiple federal and state guidelines and standards relating to vehicular travel and roadway design.  But always remember that, when there is a pre-existing specific design to prevent an activity that can cause injury on a roadway, it means the responsible entity should have been on notice of how your accident could have been prevented.

The reality that mere seconds can irretrievably alter an entire lifetime must underlie the thematic approach to how you discuss the safety and its relationship to roadway design. This theme will guide the significance of the technical evidence related to design issues and allow jurors to understand it in the context of their real world experiences as vehicle drivers.

The concept of safety as a theme during litigation is a way of presenting a defendants’ responsibilities to the plaintiff – and subliminally to the jurors themselves. While this may seem painfully obvious and has been expressed in many fine treatises for the trial lawyer, there is a reason for the infrequency of favorable plaintiff results.

The skill and credibility of government highway and street engineers is formidable. CalTrans is the reigning model for much of the world in advancing safe transit. Local traffic engineers are well trained and almost always pleasant and well-intended. Virtually every case involves an inherent criticism of these trained professionals. Jurors require a powerful response to justify what they may see as punishing hard-working civil servants.

Everyone is a driving expert

Second, and equally important, is the recognition that every juror is an “expert” in driving. Yet, these cases have become a feeding ground for multiple satellite industries called “expert witnesses.”  These experts are surrounded, in turn, by further extensions of those at the feeding trough who provide indispensable skills in projection of evidence, reconstruction demonstrations, light, sound, environmental considerations – the list goes on. 

While it is now sacred lore that this retinue of shock troops must be utilized to effectively communicate the plaintiff’s position, it can be argued (as I do) that jurors are the last to join that chorus. For jurors, experts are no longer independent vessels of absolute truth, but are instead bought, well-paid advocates trained in how to appear neutral. Are the jurors wrong? Sometimes. 

The line-up of experts

In a highway (street) design case you can predict, with certainty, the expert line-up: a traffic engineer, a reconstruction expert, a photo/video recreation of the accident “as it happened.” In a 1930’s Errol Flynn ancient-England movie you would see bags of gold being thumped heavily on an oaken table to ensure the allegiance of the “witness.” Well, the mode may have changed but the relationship remains the same.  The lawyer for plaintiff goes into a highway- design case knowing that major dollar expenditures will be required just to entice the witness. The ultimate opinion is not always guaranteed but the track record of the witness may give a healthy clue. 

There is a reason why most major highway design cases are tried by a fairly small coterie of experienced plaintiff trial lawyers. Yes, it is because “practice makes (almost) perfect.” It is true that as much as the factual events of the accident will vary, often considerably, the precepts of analysis adhered to by experienced litigation experts (a term they deplore) will be remarkably similar and often identical. Experience with such cases is a valuable asset in tilting the probable outcome. Also, experts frequently consulted like to work with lawyers they know and respect; they are as interested in “winning” the case for their own resume.

It’s a small world

As much as plaintiff lawyers trumpet their devotion to the cause of bringing a just result to an injured client, the reality is that trying cases on a contingency is also a business. Like all business, the calculation of cost of investment versus potential success that justifies it is inherent in the decision to take on such a case.  The advantage of the experienced highway design plaintiff lawyer is knowledge of the terrain – issues raised, substantive law, statutory hurdles, quality of defense counsel (also a fairly limited number of highly talented and experienced advocates), and, perhaps most of all, personal knowledge of the strengths and lack of them among the experts which everyone in the limited sphere of these cases knows and has either called as a witness or cross-examined.

It is not that an able, conscientious lawyer cannot do a credible job of representing the plaintiff in this sub-venue of the personal injury case; it is that the risk factor is heightened. It is not that the able, conscientious lawyer cannot determine whether the outcome potential warrants the investment; it is that the most intelligent effort may be thwarted by the old rubric “be wary of not knowing what you do not know.” 

Too often the jury is correct in their skepticism about the paid experts, so you must think creatively. There are laypeople of integrity who testify as “fact experts” and can be more persuasive than the highly experienced paid expert.

Visit the scene

You’ve decided to take the case. What other “intangible(s)” must you consider? Remember the admonition – this accident really happened. There are witnesses to be interviewed. Not just witnesses to the accident but those who are familiar with the site and the conduct of motorists on it, the frequency, or lack, of previous accidents or “near-misses.”  The knowledge of what “notice” the governmental entity(ies) had.  A rural Central Valley community denied knowledge of a pothole in the roadway which precipitated a major roll-over, only to enter settlement when a white ring around the hole of the type acknowledged to show areas in need of repair, weathered from its long duration, refuted their claim of ignorance. The old maxim “visit the scene” remains true.

A highway design case must demonstrate the inherent danger of the roadway and that the danger has existed for a significant period of time. It must show that the government knew or should have known of the danger.  It must be shown in the face of traffic studies that will show days, weeks, months, and often years of accident-free use of this same roadway. It may extend to hundreds, thousands, even multiples of those who traversed without incident. How can an attorney overcome so powerful a logical refutation of the imperfect design theory? Demonstrating what “should have been known” based upon a history of the terrain as viewed by those who either drive or observe traffic in their routine, can be the basis of a powerful refutation of an expert’s more academic rationale.

Find the “regulars” at the scene

Unavoidably, this is an obvious area for paid expert testimony. You can predict with certainty that for every professional expert plaintiff calls, an equally qualified person will appear to contradict. But, who are the “experts”? I am not talking about the qualified person you need to get to the jury (over a judge’s skepticism); I am talking about the expert who can persuade the jurors. Remember, the jurors are “experts” as well, but they require evidence to marshal in the jury deliberations to reach/justify the result.

Just as a juror may be an expert on your particular roadway, since they have likely driven your roadway many times, so are other percipient witnesses who may have “expert” information or even opinions that can assist your case. From my own experience, the following is a list of “percipient” witnesses one might consider: (1) the service station operator at the corner of the intersection who did not see the subject accident but has witnessed many “near misses” at the uncontrolled intersection; (2) the local police officer who responds to incidents at the same location; (3) the tow truck driver who retrieves damaged vehicles after prior accidents; (4) the short-haul driver for the local dairy; (5) the local utility meter inspector who has worked in the county for many years. These “percipients” may have a wealth of information on how long the condition has been there; their own perceptions of the danger and how average drivers perceive the dangerous condition; and the extent of prior incidents that have occurred before.

All may strike you as obvious, and to the experienced highway design advocate it, and much more, is.  The underlying decision as to whether you undertake such a case is the same as in any representation – “do you feel you have the skill and/or experience to give the client all the advantages deserved?” It is no different than any decision made that has consequences for another – “do you know your limitations well enough to overcome them?”  Hopefully, I have provided you with a few ideas of how to overcome the barriers one may face when taking on a highway-design case.