1 RULES OF THE ROAD TO WINNING PERSONAL INJURY CASES I. Start at the finish. A. What are you going to have to prove. B. Prepare your jury instructions. C. With jury instructions on liability and damages start framing the issues for your Rules of the Road. II. What every rule must contain: A. Must be easy for the jury to understand. B. Must be a principle the defense cannot credibly dispute. C. The rule was violated by the defendant. D. The rule is important enough in the context of the case that proof of its violation will significantly increase the chance of a verdict for the plaintiff. III. Every rule must satisfy the KISS method. A. If your 12 year old child cannot understand the rule, start over. B. Forget words like prior and subsequent. Use before and after. C. Words with one syllable and short sentences are best.
2 IV. Where do you find your rules? A. Jury instructions. B. Statutes C. Case law D. Learned treatises. E. Experts F. Depositions of experts V. When do you start using your rules? A. Discovery 1. Interrogatories 2. Requests for Admission 3. Deposition of the defendant. 4. Deposition of your expert. 5. Deposition of defense expert. B. Trial 1. What do you call your rules? 2. Some think you are asking for trouble by using the term Rules of the Road. 3. I prefer calling them Safety Rules. 4. Your case is all about safety. No defendant nor defense witness is going to say that they are not concerned about the safety of others when doing their job or driving their car, etc. VI. Examples of Rules of the Road A. Auto case. An injury from the operation from a motor vehicle is not from an automobile accident. It is from a collision or a wreck.
3 1. Mr. Jones, do you agree that the driver of a car should never drive in a way to needlessly cause harm to another person? 2. Mr. Jones, do you agree that running a red light can result in harm to another person? 3. Mr. Jones, do you agree than driving in excess of the speed limit can result in harm to another person. B. Trip and fall case. It is not a slip and fall case. 1. Mr. Grocery Store Manager, do you agree that the aisles of your store must be safely maintained to prevent harm to your customers? 2. Mr. Grocery Store Manager, do you agree that you must keep the aisles of your store clear of substances that could cause customers to trip and be harmed? 3. Mr. Grocery Store Manager, do you agree your employees must be trained to look for and clean up the aisles to prevent harm to your customers. C. Products Liability Case 1. Mr. Design Engineer, do you agree that there is such a thing known as foreseeable misuse? 2. Mr. Design Engineer, do you agree that every product should be designed to prevent harm from the misuse of the product? 3. Mr. Design Engineer, do you agree that it its foreseeable that the guard on this product will be removed?
4 4. Mr. Design Engineer, do you agree that this product could safely be designed so that it will not work if the guard is removed? D. Medical Malpractice Case 1. Doctor, do you agree that a doctor should never do anything that would needlessly cause harm to a patient? 2. Doctor, do you agree that if there is more than one way to safely treat a patient, you should, if possible, select the treatment that is less likely to cause harm to your patient? 3. Doctor, do you agree that if there is more than one way to safely treat a patient, you must tell the patient which treatment option is the safest? 4. Doctor, do you agree if you elect to use the more dangerous treatment option, you risk needlessly causing harm to the patient? VII. The Reptile A. Remember the Reptile does not really care about your client. B. The Reptile only cares about herself and her family. C. Your case is all about what the defendant did, and could the defendant do it to the Reptile and her family. D. If the Reptile thinks the defendant presents a danger to her and/or her family, she will help herself by helping your client.
5 RECOMMENDED READING LIST FOR PERSONAL INJURY LITIGATION 1. Rules of the Road, First Edition, by Friedman and Malone. Publisher: Trial Guides, LLC, 805 SW Broadway, Suite 2720, Portland, Oregon Rules of the Road, Second Edition, by Friedman and Malone. 3. Damages 3, by David Ball, PhD. Publisher: National Institute for Trial Advocacy, th Street, Suite 200, Boulder, Colorado Reptile by David Ball and Don Keenan. Publisher: Balloon Press, 300 Park Avenue, 17 th Floor, NY, NY Polarizing the Case, by Rick Friedman. Publisher: Trial Guides, LLC. 6. Winning Medical Malpractice Cases with the Rules of the Road Technique, by Patrick Malone. Publisher: Trial Guides, LLC. 7. Winning with Stories, by Jim Perdue. Publisher: State Bar of Texas, Austin, Texas Words that Work, by Dr. Frank Luntz. Publisher: Hyperion Books, 77 West 66 th St., 12 th Floor, NY,NY Advanced Depositions Strategy & Practice by Miller and Scoptur. Publisher: Trial Guides, LLC.
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