Trial Lawyer's Dilemma: How much to ask for?
During the last two weeks here in Flagler county the story of a horrific truck crash, totally avoidable unfolded before a local jury. The jury listened spellbound to the story of loving couple who moved here to live out their golden years together. That came to a sudden end in the blink of an eye when an overworked, angry, truck driver went barreling through a stop sign at 55 m.p.h and obliterated their van. She was killed and he was airlifted by helicopter to a nearby hospital. Sadly he never even got to say goodby it happened so fast. As the Plaintiff said, "It is hard to beleive your life can change so fast."
Their case was reported by Frank Fernandez of the Daytona News-Journal. On November 11, 2009 the jury heard the opinion of an almost unbelievable "expert" accident reconstructionist from south Florida. It was his opinion that the truck driver was a "victim" because Flagler county had paved over a few rumble strips. He felt the fact that there were several signs warning of the dangerous intersection was not good enough. Mr. Fernandez wrote about it and there were numerous comments posted before final arguments started today. This type of defense argument had to inflame the jury. In my opinion it should result in a higher than usual damages award. It was very risky defense to try and pull over a quick one on the jury.
There were other aggravating circumstances:
- the driver was on the road in excess of the maximum number of allowable hours,
- the sod company for whom he worked had no idea of his lousy driving or employment record, because they did not pay $10 to get it,
- he refused to cooperate with a mandatory DOT drug test required because of the fatality,
- the defendants refused to accept responsibility,
- the driver was overworked and tired, and
- His company had no system to monitor his hours so did not know whether he was driving too much.
More than 20 comments by readers who followed the trial in Fernandez's column were available online first thing this morning. The overwhelming majority thought the accident reconstruction expert was a joke and implored the jury to ignore his testimony. I don't know whether the Plaintiff's very fine trial lawyers Steve Pajcic and Tad Griffin of Jacksonville were aware of their comments when they prepared for final summation. Mr. Pajcic made the final argument. He asked for almost $10 million in damages, which was in his opinion fair given all the circumstances. I agree and hope the jury agreed with him too. I thought it was worth more. There was a lot of evidence to support the request.
Knowing how much to ask the Jury for is a delicate, tough and lonely decision for any plaintiff's trial lawyer, no matter how skilled, and experienced he is. If he asks for too little, the jury award will not be adequate. Too much and the jury will be insulted. The venue should and must be considered too. In a place like Flagler county, jurors may feel a lawyer is asking for too much, whereas under the same facts in south Florida, another jury may easily feel at home with a large damage award.
The "comments" from readers of Mr. Fernandez column on this case might be a good indicator of what the jury will do with the damage award in this case. We'll know the results soon.
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P.S. Late in the day on November 12, 2009 the Jury returned a Verdict for $5.1 million according to the latest column by Frank Fernandez.
