DN Staff

September 25, 2006

3 Min Read
The Case of the Cavalier Counselors

Sometimes the outcome of a case turns, not on thorough investigation and well-developed evidence, but on the manner and way an attorney uses and presents that evidence to a jury. I had a first-hand experience about 10 years ago when a plaintiff's attorney called to describe a fatal forklift accident.

Scene of the Crime

A stand-up, end-control lift truck was being driven close to the edge of a loading dock. The driver turned to back the truck toward the dock's edge to line up the forks with a pallet. He pushed the hand-operated speed/direction lever to stop his reverse travel and accelerated forward. The truck did not respond, but continued to coast in reverse without power. By the time he reacted by lifting his foot from the floor-mounted brake treadle, the truck rolled off the dock, hit the floor below and crushed the operator.

The Investigation

I reviewed witness statements, and truck mechanical and electrical drawings. I traveled to the Pacific Northwest to inspect both the subject vehicle and a closely serial numbered, identically equipped sister lift truck. This model truck had what I believed to be a serious flaw. With a motor for each drive wheel, the truck was steered by a single wheel at the driver's end of the truck. When tightly turned, steer wheel sensor switches cut power to the inside drive wheel allowing a tight turn without wheelspin. When making tight turns, I observed that when activated, the turn switches caused both drive motors to shut down, leaving the vehicle to coast without power. There was a built-in circuit reset function requiring the driver to relax all controls by returning the speed control to neutral, lifting his foot from the brake treadle, and switching the keyswitch off and then on. Although occurring randomly, I could repeat this power dropout condition confirming statements by other forklift operators.

I reconstructed the accident scene, measuring time and distances required to regain control after the control cut off. I demonstrated that the time required by the driver to recognize the power loss, reset the circuit to regain control or even to apply the foot-released, spring-applied brake could allow the truck to coast off the dock. Although a service bulletin alerted dealers about magnetic steering sensors to replace the troublesome mechanical steer switches, no service kits with parts were available by way of a general field retrofit program. An argument could also be made that the operator took an unnecessary risk driving close to the dock's edge.

The Smoking Gun

I was summoned to give a deposition and ultimately to appear in trial. The brother/brother team of attorneys I worked with were successful in representing plaintiffs in personal injury cases. Virtually all of my contact was with the younger brother. During the trial, the other attorney began to display an arrogance and hubris I had not seen before or just didn't recognize. I focused on my trial testimony that stretched over two days. Defense council hammered on technical issues and had me support my proposed accident timeline by calculating time and distances using Newtonian equations of linear motion.

As the trial continued, my clients continued to behave as though they believed a verdict for the plaintiff was foregone conclusion. As their behavior became more obvious, the defense counsel objected, likening them to a "bunch of caged monkeys." After being admonished by the judge, they settled down somewhat, but the damage had been done. Although the defense argued the driver displayed risky behavior, I thought we had a righteous case based on my tests.

I was dismayed, but not surprised, when the jury came back with a verdict for the defense. Surely, the jury sent a message to the plaintiff's attorneys, but they also deprived the plaintiff (the deceased's family) of compensation. I can't say the jury's decision would have been the same without the unsavory display, but this result demonstrated that bad manners and arrogant presentation do not help logic and good evidence.

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