Rashomon: The Strange Case of the Slippery Fall

I don’t often feature guest bloggers or writers, but I figure some of you might enjoy this piece from a friend (I’ll call him “Lawyer A”)  I’ve known since my early adolescence in Noo Yawk.  He’s now a Midwest country lawyer with an ironic eye for the quirky situation.  I know a number of my readers are attorneys, so I’m hoping you’ll enjoy this story…

THE SETUP

My practice of law, as you know, is litigation and trials.   All litigation involves investigation.   Investigation of documents, the law, background, etc.   Investigation runs the gamut.  It can be dry and full of dead ends; it can be revelatory and bright—filling you with joy when you discover something that helps your case–especially when you’re excited about your case.   (Which is not always the case).

In my experience, the best and most rewarding part of investigation is witness interviews–whether by telephone or in person.

However, in many of my commercial cases, there is not too much to the witness interview.  This is because commercial cases are mostly document driven.  Either this document was signed or it was not.  Either this document means this or it does not (a question of law that has nothing to do with witness testimony).   Occasionally there are “oral” contracts or agreements, which sometimes bring arguments about the parol evidence rule or if that rule does not apply, bring he-said/she-said type dynamics to the case.  But that investigation is quickly concluded when one finds out the story that “he” is sticking to and what “she” is sticking to.

Recently, I was blessed, in a sort of way, with a personal injury case from a good client–we’ll call them XYZ Bank.   I do commercial work normally for them, but we have a good rapport, and they thought they’d ask me to do a PI defense case for them– at a “competitive” rate.  I booked it at $175/hr–which is actually a premium rate in any market in the Midwest (most PI defense runs in the $115-$160 rate in these parts).

THE CASE and “Rashomon”

So, on May 21, 2009, Ms. JH decided to go to her local XYZ Branch in town.  It was a clear bright sunny day and at about midday she parked her car in the bank parking lot and walked up the sidewalk to the set of four stairs that led to the entrance of the bank.  In the course of going up those stairs, Ms. JH fell down.   Within a minute, XYZ employees attended to her and helped her up and she then went into the bank.   When asked if “she was alright” she answered, “yes.”   She did her banking and left.

Within the month, she entered into the hospital complaining of all sorts of serious injuries.   She was treated for those injuries and the cost of treatments at that time, and then subsequently went well into six figures.

Then she engaged an attorney.  The attorney notifed XYZ that Ms. JH sought reimbursement for her treatments and sought compensation for pain and suffering.

Since XYZ is self insured, they have a contract with a Third Party Administrator “TPA,” which is basically an insurance adjuster company that administers and settles claims.   For 2 years this case percolated through the TPA with give and take and back and forth–but the parties did not see eye to eye.

Then Ms. JH’s attorney filed a lawsuit.  That’s when the TPA engaged counsel to defend the lawsuit.   And that’s where I came in.

Once a dispute goes to the lawsuit phase–everything changes.  You see the adjustment phase focuses on the “bottom line:”   Damages.   If Ms. JH had said “Gimme $11k,” this case would have ended at the adjustment phase.  But once Ms. JH demanded in excess of 6 figures—-things changed.   Even big companies like XYZ don’t simply accept and payoff 6-figure demands…if they did it would be like the proverbial mistake of feeding a stray cat.

No, big companies must always watch the soft underbelly of liability.  And they must fix and focus a consistent policy in addressing claims.

So, the policy is basically that if we can settle for nominal nuisance value–then skip the expense of investigating liability…and pay the parking ticket.  However, if the demand is too high, then focus on exploiting the Plaintiff’s weaknesses on liability.

LIABILITY AND HOW TO HANDICAP A CASE

Every PI case is like a triangle.  There are three vertices.

Vertex 1= Liability

Vertex 2= Damages

Vertex 3= Collectability.

Those three vertices are the essence of every garden variety negligence lawsuit.   Attorneys that don’t understand the dynamic of those vertices will fail miserably.

(As an aside–you can always tell a young attorney from a seasoned attorney simply by which vertex that attorney focuses on.  A young attorney focuses on vertex 1….liability.     For instance….A homeless man steals a car, negligently runs a red light and kills a pedestrian.    The young attorney gets the case from the decedent’s family and promptly pours money into suing the homeless man.   It’s a slam dunk case….a default judgment!!!!    For $800,000…..      You know what you do with that judgment?   You frame it.  B/c it’s worthless.  This is because the defendant was not  COLLECTIBLE  (see Vertex 3)).

The seasoned attorney on the other hand–concentrates on the defendant.   “Oh…it was Target that was involved in this…right?”      Target, indeed.   Once the seasoned attorney sees a collectible defendant (which Target Corp. is ) he/she looks into liability.    This is because the seasoned attorney knows that the bottom line is getting paid.

THE INVESTIGATION.

Once I’m involved it really is very simple.   The vertices to concentrate on are damages and liability.  But already damages have been alleged–we know they are not palatable.

So we have damages….and we don’t like them and to impugn them involves incessant and expensive document review.  Consequently the ertix to concentrate on is liability.   Liability…..Liability…..  Because most importanly about liability is this: If you defeat it—the issue of damages is moot.  (If someone is damaged that’s one thing they still must prove another party is liable to be compensated).

LIABILITY

In a slip and fall case–one of the hardest of all for any PI attorney, the Plaintiff basically has to prove that the premises where they fell were negligently maintained or designed.   In essence they must prove that a normal person would have slipped b/c of some kind of negligence on the part of the owner of the premises.

Like in all PI cases,  LIABILITY in slip and fall cases rise and fall on what eyewitnesses might say….