The Worst Case can be the Sweetest Victory
Back in the mid 1980's, late on a fateful Sunday night sometime
between the conclusion of Sixty Minutes and that weekly Sunday night
realization: "oh
get ready for whatever is coming tomorrow morning," I received the
phone call. A lawyer colleague and
friend's tone of voice carried a mix of disaster,
defeat, and despair. A year had gone by and he had failed to file
his client's personal injury suit before the date that the statute
of limitations was scheduled to run. This went beyond his having
a sense of shame. It had the makings of a circumstance where
the client, an octogenarian woman, bruised and broken, was going
to be shut out from a recovery from the other driver. Even worse,
this being back in the days where professional liability insurance
was not mandatory, her lawyer was uninsured.
I headed
to the office and worked throughout the night, seeking to find
some obscure exception to the harshly applied statute of limitations.
There was the hope that the other driver had left the state for
a protracted period or even that she had suffered some debilitating
mental problem, stopping the claim from being time-barred. During
the week that followed we investigated all possible factual scenarios
that might have resulted in a favorable twist of circumstance.
Hope began to fade when my colleague was approaching his self-imposed
deadline to alert his client to the error he had made. As the one
week mark passed, I could only be impressed by what a terrible
case this seemed. So weak a case it appeared to be, that I finally
saw its weakness as its greatest strength. You see this was an
intersection collision between two vehicles at right angles. Both
drivers claimed to have had the green light. The only witness
was a very reluctant a heroin addict who was terrified
at any contact with legal authority.
As the week
went by and the facts began to unfold, the depth of the weakness
became clearer and clearer. Finally, like a ton of bricks,
the realization hit me: the weakness in the case was also its greatest
asset. The case was just so bad that it led me to recommend that
my colleague investigate whether the potential defendant had,
herself, filed suit and thereby cancelled the application of
any statute of limitations against the octogenarian's claim. Sure
enough, the potential defendant had indeed filed suit, and the
plaintiff was therefore "back
in business."
My colleague,
grateful for the research, moral support and assistance was incredulous
that my "less is more"
theory worked in his case. My "reward"
was this offer from him: "Why don't you partner
with me on this?
let's
go forward with the case together!" I was not interested
in the least. The case was cursed, I thought . . . you
could only take this "less
is more" philosophy so far, and frankly, it seemed
to have outlived its usefulness. As
if to prove the point, the client's own insurance carrier then
paid $9,000 to settle the other driver's claim against her.
But a
sense of adventure had come over me. As a family motto I had learned, "We
specialize in the impossible!" This
seemed to be up the same alley! We obtained the
other driver's deposition testimony about each stop and
turn, and the speed she claimed to have been traveling at each
point, as she drove from her home to where the crash occurred.
We then obtained the city's record of the traffic light patterns,
so we could examine her under oath at trial and compare how
her deposition statements related to the way the city traffic lights
worked.
Comparing
the other driver's testimony and the city's reports, the expert
and judge both concluded that only if the other driver
had driven through downtown San Diego in the middle of the day
at a constant speed of either 8 miles per hour or 72 miles per
hour, along the entire route, could she have faced the green light
as she had claimed. The award was nearly $50,000.00 - and this
when even our client's own insurer had conceded defeat
and paid the other driver.
The moral
of the story: do your homework! There is no feeling like getting
the good results when the chips are down. The worst case does
indeed make the sweetest victory.
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