Thursday, December 7, 2017

Burden of Proof: Day 2

This is the fourth and final post about the bicycle accident that Greg was involved in over two years ago and the subsequent lawsuit that was filed against him. You can read the first three posts here:

The Accident

Tuesday, December 5, 2017

The judge has asked the attorneys and their clients to be in the courtroom before 8:30 a.m. and the jury to be in their holding room by 8:40 a.m. We all show up on time and the plaintiff's attorney calls their third witness around 9:00 a.m. This is another video deposition, this time by the plaintiff's orthopedist. The line of questioning is the same as with the cardiologist, with the exception that the plaintiff does not have a history with the orthopedist other than as it relates to treatment for the injuries from this bicycle accident. Bottom line, all of the plaintiff's injuries were completely healed and he was complaining of no pain in March 3, 2016. He did not see this orthopedist or any other doctor for treatment related to these injuries after that date.

The fourth witness is the plaintiff's wife. She is comparable to the plaintiff in her inability to remember many details about anything. The purpose of her testimony is to describe how her husband acted after the accident as she was the one who he called to transport him to the hospital. She is also asked about his recuperation at home, when he returned to work, how he is different now, etc.

The fifth witness is the plaintiff's best friend and biking partner. He was riding with the plaintiff on the day of the accident. Some of his testimony refutes Greg's version of events, while other parts actually support it. His memory is also not the best although, overall, I think he is a better witness than the plaintiff himself.

We break for lunch around noon. When we return at 1:20 p.m. and are ready to go back on record, the court clerk's computer system suddenly shuts down without warning. She tries to troubleshoot with the courthouse's IT staff over the phone, but that doesn't resolve the issue so someone has to come up to the courtroom to fix the problem. Finally we are ready to start again around 2:00 p.m.

The sixth witness is a "bicycling expert" whom the plaintiff's attorney has called in to testify. This person does not know the plaintiff at all and is there solely to answer questions as they relate to bicycling safety, mostly about the commonality of riding abreast and about the proper technique for passing another cyclist. He is familiar with the Springwater Corridor so there are some questions about riding on it as well.

Now it is Greg's turn to take the stand as the only witness for the defense. He is calm, cool and collected, having spent all day Sunday practicing in front of a mirror. First he is asked a few questions about his personal life, his employment, and his bike riding experience as well as his use of the Strava app to record data about his rides. Our attorney has transported Greg's bike to the courtroom, mostly so Greg can demonstrate the loud and clear sound of his bell. Then Greg tells the jury about his bike ride on October 3, 2015 and about the accident. The only part of his testimony that could be considered a negative for us is when the plaintiff's attorney asks if he (Greg) could have rang his bell more than once, also given a verbal warning of his intent to pass, and waited until the other two riders moved into a single file position to ensure there was adequate room to pass.

The plaintiff's attorney calls his client to the stand again as a rebuttal witness. He is asked, as he was during the depositions in February as well as on the first day of the trial, if he heard Greg's bell (no), if he was aware that Greg was behind him and was going to pass (no), if he swerved to the left as Greg passed (no), etc. Nothing new comes out of this questioning and he is only on the stand for 10 minutes at most.

Both sides rest their cases so the judge tells everyone to take a 15 minute break. When we return, the judge does not immediately call in the jury as we need to review the jury instructions first. This ends up being way more complex than I expected. There are approximately 28 detailed instructions, many of which are specific to this case. They range from how to evaluate witness testimony to definitions of negligence and causation to comparative damages and much more. Both attorneys already have a copy of the instructions and the point of this discussion is to decide which ones need to be removed or modified. It takes at least 30 minutes to review everything, then another 15 minutes for the court clerk to print out new copies for the judge (who will read the instructions in their entirety to the jury) and for the jury (who will take a copy into the deliberation room for reference while they decide the verdict).

We reconvene with the jury present around 4:00 p.m. The judge reads the jury instructions first, then it is time for closing arguments. Both attorneys have Powerpoint presentations but this time they are more concise. The plaintiff's focuses on all of his injuries, how Greg could have waited to pass the other cyclists and therefore avoided the accident, and offers a recap of the plaintiff's days in the hospital. The defendant's (ours) focuses on contradicting the medical statements by the plaintiff's attorney, a review of the accident from Greg's perspective, the fact that the plaintiff was fully healed in five months, and how, if the jury does not find the defendant negligent in any way then they just have to mark NO next to the first question on the verdict form. The plaintiff's attorney is allowed to make rebuttal statements and he mentions the "permanent" injury to the plaintiff's shoulder and heart, how the aging process changes when injury occurs, and that Greg should have waited to pass the other cyclists.

The judge sends the jury to deliberate in their holding room and we are dismissed for the time being with the court clerk saying she will call the two attorneys to give an update in an hour or less as that is when the judge typically leaves for the day. We leave the building with our attorney and are planning to walk to a nearby coffee shop when his phone rings. The court clerk says we can come back; there is already a verdict.

Once everyone is present, the jurors file back into the courtroom. The forewoman hands the verdict form to the clerk who passes it to the judge. The judge reads "In answer to question #1, is the defendant negligent? The jury has answered no." Since there is no reason to proceed with the remainder of the questions as they are only to be answered if the defendant is in some way negligent, the judge polls the jury. All 12 jurors raise their hands when he asks who answered no to this question of negligence (there had to be at least nine in agreement in order to reach a verdict). Before we adjourn, the judge thanks the jurors for their service and asks if any of them have anything to say regarding this case or the performance of the plaintiff's and defendant's attorneys. No one volunteers, so the judge says they are free to go but also are welcome to stay and speak to any of us directly.

I immediately stand up and move toward our attorney so I can shake his hand. Then I give Greg a big hug with tears in my eyes. Several jurors approach us and congratulate us. One says he was in a similar accident but with a much different outcome i.e. he wasn't sued. Another says that the plaintiff just didn't produce enough evidence to prove negligent conduct by Greg. One specifically says "burden of proof." Not a single juror approaches the plaintiff or his attorney.

So, in the end, the good guy won.

We do not have to pay a dime of the plaintiff's attorney's fees, medical bills ($23,115.04) nor any of the $250,000 in non-monetary damages he claimed. In fact, the plaintiff has to pay the court costs and filing fees (which is really only a few hundred dollars). Our insurance will cover all of our attorney's fees and costs so, technically, we are not out any money at all.

Of course, we are beyond thankful that we won and that this ordeal is finally over. The stress has had an immeasurable impact on both of us individually and on our relationship, and is one of the many reasons I spent the summer in Europe. Greg had to work anyway and there was nothing going on lawsuit-wise to justify spinning my wheels at home. Now it is time to look at the future from a fresh, if somewhat tainted, perspective.

Here's to an accident-free 2018!