43 Trial Lawyer • Fall 2022 See Bike Case 44 legal, but ______.” This prompted a lively conversation about whether any of the jurors would bicycle on the shoulder of a freeway (none would), whether they could be impartial or whether they would hold that fact against the plaintiffs. After that discussion, the issue of the plaintiffs being on the shoulder of I-84 hardly came up again during trial. Practice tip: Watch your judge conduct civil jury selection before your trial, particularly in federal court, where different judges have very different approaches to voir dire. This case illustrates how we in the plaintiff’s bar are all connected. Part of our eventual success was the result of prior legislative work by Ray Thomas, a godfather of Oregon’s bicycle safety laws. He helped pass ORS 811.065, a unique statute that requires a motorist to allow enough room for the safety of the cyclist — even if the cyclist were to fall into the driver’s lane of traffic. Lawyers in other states cannot believe we have that statute. Be sure to take full advantage of it in your next bicycle case. The parties mediated this case about two years before trial. After a full day of mediation, DHL’s insurer offered $500,000. The insurance carrier then held at $500,000, never budging until after the pretrial hearing when the judge limited their ability to attack the plaintiffs for bicycling on the shoulder of the highway. The escalating offers of settlement then proceeded quite rapidly as follows: • $1M after the pretrial conference (about two weeks before trial) • $1.5M a few days later • $2M the weekend before trial • $2.7M before closing argument • $3.5M after closing argument Plaintiff lawyers tend to settle good cases and end up trying their tougher cases. It is also my experience that good cases tend to get better with time, and tough cases tend to get worse. This case was an example of a good case that kept getting better. It’s also an example of when there are clear advantages to being in federal court with witness summaries and the judge’s ability to wield broad “gatekeeper” rulings to focus the case. Only after the court prohibited the defense from attacking the plaintiff for exercising their legal right to bicycle on the shoulder of the highway, did the defense seriously engage, but it was too little, too late. We always liked our case, but even we were surprised by how much focus groups liked it. They consistently awarded damages that were higher than we anticipated, something that does not happen as often as I would like. Liability We perpetuated the deposition of a driver in one of the two cars behind the truck when it hit the plaintiffs. With perpetuated testimony in hand, we could play it during opening statement. He testified the semi swerved into the cyclists who were in their proper lane of travel on the shoulder of the road. This set the scene in the jurors’ minds before the defendant’s accident reconstructionist and/or driver could muddy the water. We did our best to reconstruct the collision scene in the courtroom. We called the defendant driver live, and we had him turn to his right facing the wall in the elevated witness chair, as if he were driving high in his semi, and then turning his head to his left (looking out his driver’s window), explain how he saw a car immediately next to him, thereby preventing him from being able to avoid hitting the bicyclists. I had him pretend I was the adjacent car, and placed a courtroom chair and white tape on the floor where he told the jurors and judge the car was. This dramatization allowed two later witnesses, who were behind the semi, to persuasively testify there was no car next to the truck. Black box data can be compelling, but it is not very precise. Our focus group revealed that the black box data was the most important fact for defense jurors, convincing some that the bicyclists did, in fact, swerve into the highway. We focused on establishing the inexactness of the location data from the black box. The defense accident reconstructionist finally conceded that the truck’s black box could not reliably establish on which side of the fog line the collision occurred. However, it did fix the truck’s speed at 59 mph in a 55 mph zone. It was helpful that the defendant’s accident reconstructionist talked with Newman and recorded the conversation. He also talked to the DHL driver the day Eric Moutal and Andrea Newman took a selfie near Cascade Locks a day before they were struck by a semi-truck, a collision that could have been fatal.
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