One of the most effective ways to highlight a defendant’s alleged negligence is to walk jurors through a simple alternative that could have avoided the accident. During closings of a traumatic brain injury trial, Joe Fried vividly demonstrated such a hypothetical alternative and helped seal an eight-figure verdict in the case.
Jaccolah Johnson suffered a devastating brain injury in a 2016 fall from a paratransit "mobility" bus operated by MARTA, the Metropolitan Atlanta Rapid Transit Authority. A key issue in the case was whether MARTA’s driver should have “shadowed” Johnson, to ensure she exited the bus safely.
The defense argued Johnson was responsible for the fall because she rejected the driver’s offer of assistance.
In his closing rebuttal, however, Fried, of Fried Rogers Goldberg, acted out a hypothetical scenario in which the driver stood at the ready, as he argued the standard of care required of MARTA.
“Imagine this scenario,” Fried begins, as he walks jurors through the scene. “The bus starts to come to a stop and the bus driver says to Ms. Johnson... ‘I know you’ve got all that stuff because I saw you carry it onto the bus… let me help you.”
Fried mimics the positioning of both Johnson and the driver. “Let’s say Ms. Johnson says ‘No. I’m OK,’” Fried tells jurors before channeling the hypothetical driver’s response. “Fine. I’m not touching. I’m not grabbing. I’m not doing any of that. I’m just standing here,” Fried says. “Just like many people would stand there… if you knew somebody had potential vulnerabilities.”
That presence, Fried argues, could have led to a very different result when Johnson fell. “Imagine you have this stumble start to happen up at the top [step],” Fried says. “And all the bus driver does is step in right there,” he adds, stepping forward and placing his hands around the imaginary Johnson to steady her.
“That’s what the training manual is talking about,” Fried says, reminding jurors of his contention that this is the action the standard of care required. “And what happens then? Ms. Johnson goes down, instead of going around and backwards,” he adds, as he mimics how the fall actually took place.
In the hypothetical scenario? “Ms. Johnson may have hurt her knee. She may have come down and hurt her butt,” Fried says. “But she’s not going all the way out that bus."
Fried’s demonstration cut through the back-and-forth on training manual language and sent jurors back to deliberate with a vivid picture of what he argues may have occurred if MARTA had followed the appropriate standard of care.
And it helped yield a $25 million jury award, with MARTA found 75% responsible for the fall.
Email Arlin Crisco at firstname.lastname@example.org.
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