|Wal-Mart successfully defended against powerful emotional appeal with technology and Sanction: May-Carmen v. Wal-Mart bicycle trial Marin County, CA , By Colleen O'Donnell|
Up against a case rife with emotional appeal and just one night to prepare for trial, consultant Ted Brooks, founder of Litigation Tech LLC, accepted the assignment from a new client to prepare and operate courtroom technology for Wal-Marts defense team in a nine-plaintiff product liability suit.
Brooks spent his one pre-trial evening loading digitized evidence into Sanction, including about 20 video depositions, as well as several audio tapes, and hundreds of photos and documents. He also made extensive use of Sanctions Presentation Folders to help organize the data for each witness.
Plaintiffs counsel, in contrast, did not use any technology at all in trial. If youre going to swordfight, dont bring a pocket-knife, observes Brooks of the opposing team. We were able to effectively present our case, while the plaintiff searched.
The plaintiffs used dozens of mounted photos of children averaging between 8 and 12 years old, whose faces were roughed up in bicycle accidents, which they alleged were caused by defective bikes sold by Wal-Mart.
Nine sets of parents had filed suit against Wal-Mart, bike importer Dynacraft and its claims processor. The parents publicized their case with the graphic website: Wal-Mart Stop Hurting Our Kids (SHOK). Their attorney, Mark Webb claimed the accidents were caused by defective quick-release devices, which are intended to secure front wheels to the bike but allow riders to easily remove them for transport. He asked the Marin County jury for $8 million in general damages for the nine families from California and other states, plus punitive damages for the defendants' alleged malice.
"Every child in this case went over the handlebars, landed on his face, and suffered severe injuries," Webb told the 12-member jury. "How do you put a price on quality of life? How do you put a price on a childhood that's been lost?"
Wal-Mart had hired a high-profile law team of four attorneys, including seasoned Joe B. Harrison of Gardere Wynne Sewell in Dallas, who retained Brooks during the eight-week trial.
The defense put forth that each of the bikes had been tampered with, neglected or improperly handled. Key to the defense were deposition videos and audio tapes. During trial preparation, Brooks created video clips from 20 depositions, as well as audio clips from insurance adjuster audio tapes. Some of the clips were played as absentee witnesses.
In every instance, our side showed there was negligence involved with the bikes, and either kids or parents not taking measures to ensure the bikes were in working order,explains Brooks. We had audio tape of plaintiffs interviews with the insurer and we played them to the jury. All audio tapes were digitized and played through Sanction. I used Sanction in dual-screen mode, allowing me to have full access to the database while documents and video were shown to the jury.
Audio evidence included statements from the injured children such as, My friend loosened my wheel and said drive home. The child did that, then had an accident the next day on the bike.
Opposing counsel counter-designated what they wanted to play so, there were many times I had to create clips in the courtroom, just minutes before they were to be displayed in trial. Sanction's Clip Creator made this task very quick and simple, adds Brooks. Another valuable feature used was converting the clips to individual files, which could be burned to a CD and submitted to the Court for the record. This was done for each absentee witness.
Harrison said in his closing argument that there was no scientific proof that Dynacraft quick-release levers are defective. He pointed out that the defendants had attached warning tags to the bikes and sold them with instruction manuals, including directions on how to safely operate the quick-release levers. Harrison criticized the plaintiffs' key expert, metallurgist Robert Neil Anderson, who testified that the Dynacraft bikes Wal-Mart sold were like "ticking time bombs."
He said that Anderson failed to conduct sufficient tests on the bikes to prove a defect and did not study how the accident rates of Dynacraft's bikes compared to others. Harrison also said that the plaintiff's expert did not test the clamping force of Dynacraft's quick-release or conduct tests to confirm his theory that the bikes' soft-suspension system had more vibrational stress than other bikes. He also criticized the plaintiffs for not presenting an accident-reconstruction expert to explain the cause of these accidents.
He concluded that Dynacraft's own expert witness, Gerald Bredding, did extensive tests to prove that the bikes were safe. We digitized a videotape showing the front suspension on a smooth roller, and then on a roller with bumps welded on which shook the wheels violently, and showed this test to the jury, says Brooks. We also showed a test with heavy weights hanging from the wheels. They never came off. Another series of test data was shown to the jury, proving that the clamping force of the Quick Releases was as strong as, and in some cases, even stronger than high-end QR's.
"Which is better, guesswork or science?" Harrison said to the jury. "Theories are a dime a dozen. Where's the proof? Where's the data?"
A key moment in the trial came as defense attorney Rob Phillips was giving his closing argument, and the last thing the jury saw were the words: "Where's the proof?", zoomed in from a graphic, filling seven feet of projection screen in the courtroom, relates Brooks. As he spoke to the jury, he turned to look at the screen, then realized I had zoomed in on that section, and just smiled. It was very powerful.
Without technology, plaintiffs relied on the emotional appeal of injured children and dramatic displays such as shaking the bike. Plaintiffs shook a bike in trial to show that the wheel falls off but the plaintiffs had removed the brakes for dramatic effect, explains Brooks. We shook the bike with the wheel properly tightened and it stayed on.
Brooks is well-known in the litigation technology community for his work with another trial presentation product, but he really liked Sanction. Clip Creator is very easy to use and helpful. I used it a lot, he says. I also liked the ability to pre-select where to place a given document or photo.
Im not a fan of making trial presentations like a PowerPoint. Thats the advantage of trial presentation software like Sanction. You never know whats going to happen in trial, and with trial software, you can respond to that. Otherwise youre stuck in a linear format. Brooks was moderately familiar with Sanction and had used it before in the past. Because Sanction is rather well-designed, I was able to drop in and use it easily, he says.
The jury found against the parents and their attorney. None of the parents won any damages although one set of parents reached a confidential settlement with Wal-Mart and Dynacraft. The decision was 11 to 1 and a retrial is pending.
Our counsel was extremely happy and pleased with the performance
of Sanction in trial. It led to more business for me, Brooks adds
happily. A couple very highly-regarded attorneys on the team had
never before used technology in trial. Thanks to Sanction, Id be
surprised if they ever try another major case without it. Opposing counsel
was also impressed by Sanction.
This article is reprinted with permission from the Tech Edge Insider Vol 2, Issue 7 Verdict Systems, LLC. © 2006
Ted Brooks is the president of Litigation-Tech (www.litigationtech.com)