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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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