Tips on Trying Pedestrian Accident Cases: Voir Dire and More
When trying a pedestrian accident case, it is important for an attorney to establish the themes of their case at the time of their first encounter with potential jurors during the voir dire process. When framing voir dire questions, an attorney should structure the questions in a manner that they test the potential jurors’ willingness to consider the plaintiff's theory of the case. It is imperative that certain themes be explored prior to selecting a jury.
When a pedestrian accident case involves a trip and fall, it is extremely important to identify those jurors who are unaccepting of the idea that a property owner should be held liable when a person is injured on their property even when the property owner is negligent. Of course, those jurors should be struck either for cause, if possible, or through a peremptory strike. It is also important to explore whether or not a potential juror has been a defendant in a lawsuit related to an accident on property or had a claim asserted against them with respect to such an incident.
It is equally important when the pedestrian accident involves an automobile collision to learn more about potential jurors’ habits or biases against pedestrians or other individuals utilizing the roadway who are not in motor vehicles. For instance, many drivers are known to have strong biases against individuals who are jogging and, in their opinion, impeding the flow of traffic. Other jurors may have biases against persons who are cycling on a roadway. An attorney representing a pedestrian should ask questions to elicit any such biases of potential jurors so that they can be struck. However, an attorney should be cautious not to identify jurors who are often pedestrians or cycling using the roadway as such individuals are likely to be struck by the defense counsel. Accordingly, the questions need to be structured in such a manner that the attorney only identifies the biases of the jurors who he wishes to strike and not those who may be favorable to his position.
A theme that an attorney representing the pedestrian can often utilize in a pedestrian accident case is that drivers have a responsibility to exercise extreme caution in areas where they know pedestrians are present. This theme should be explored during voir dire to determine whether or not any of the jurors do not agree with this general proposition. In this manner, the attorney has established at the outset a duty and responsibility for the at-fault driver to be aware of the potential for pedestrians in the area. This theme should be carried over to opening statement and woven into the evidence which does exist in the case.
Witness order is extremely important in a pedestrian accident case. A strong body of research supports the idea of not making the plaintiff the first witness on the stand. 99 LWUSA 960, Plaintiff’s should always start by attacking the defendant, new research shows “sympathy factor” only works if jury first assigns blame. Jurors have a tendency to immediately start judging the conduct of the first witness with whom they are presented and then to develop their perspective of the overall case. Id. A better approach is to place the defendant driver on the stand for purposes of cross-examination. The plaintiff’s attorney can then elicit testimony establishing the defendant's knowledge that pedestrians may have been present in the area, the need to maintain a diligent lookout for pedestrians when traveling in the area of the accident and the fact that the defendant did not see the pedestrian with adequate time to stop. All questions to the at-fault driver should be extremely tailored in such a manner that only questions are asked which the attorney knows the answer based upon the defendant’s deposition.
The attorney should then proceed building the case supporting a defendant's liability with other witnesses in the early part of the trial. For instance, if there is valuable eyewitness testimony establishing the negligent conduct of the defendant, such witnesses should be called shortly after the Defendant has testified. Likewise, if the plaintiff has an expert witness who has reconstructed the accident, they can also be a valuable early witness in the trial. Having established the jurors perspective of judging the at-fault driver and having heard extensive testimony that he or she is liable for the accident, it is then safe to introduce the testimony of the plaintiff who can further corroborate the perspective of the jury which already exists that the at-fault driver caused the collision and then explain the injuries they suffered as a result of the defendant's negligence.
In closing argument, it is extremely important that the themes which were established in voir dire and opening statement, and throughout the trial, are then brought together in a cohesive manner for the jury. At this juncture, hopefully the majority of persons on the jury are already convinced of the defendant driver’s responsibility for the pedestrian accident. The plaintiff’s attorney’s closing argument therefore should help solidify their already existing perspective regarding the cause of the accident and, importantly, provide them with substantial factual support which they can utilize in the jury room to convince any jurors who are not fully persuaded regarding the at-fault driver's conduct. It is important that an attorney not ignore the importance of obtaining jury charges that can be effectively used during closing arguments. For instance, any statute or case law which supports the position that it is the driver’s ultimate duty to identify the presence of a pedestrian and to use such caution to avoid the collision is extremely valuable to the pedestrian’s attorney when making their closing argument. SC-JICIV 28-22, Anderson, S.C. Request to charge – Civil, Sect. 28-22 (2009), Motor vehicles – due care for pedestrians.
Overall, pedestrian accident cases, while often presenting challenging and complex issues, are extremely important litigation for an attorney representing individuals who have suffered personal injury. Generally, the injuries which arise from a pedestrian accident are severe and life-altering for the individual. Accordingly, an attorney carries a great burden to do his or her utmost best to investigate the case, minimize or negate potential defenses prior to litigation commencing, if possible, and to handle the claim and/or litigation in such a manner that it creates such great risk for the defendant and/or their insurance company that the matter is resolved without the necessity of a trial. However, if the case does need to be tried, an attorney who has properly evaluated the case prior to accepting it, thoroughly investigated the case and appropriately mitigated any defenses, has placed themselves in an excellent position to obtain a favorable outcome for their client.