Fury Bailey - Personal Injury - Wrongful Death Attorneys

CIVIL RULES MAKE A DIFFERENCE - THREE CASE STUDIES

By William S. Bailey

Fury Bailey

710 – 10 th Avenue East

Seattle , WA 98102

(206) 726-6600

billb@furybailey.com

BUSINESS AS USUAL: ARE YOU USING THE CIVIL

RULES AS EFFECTIVELY AS YOU COULD?

The various rules of civil procedure are a fixture in all of our offices, our own version of the motel room Gideons Bible. But how many of us ever take out these rules on any sort of regular basis and read the language anew to see if any tactical or strategic advantage will materialize for an ongoing case? Probably very few.

The Civil Rules themselves are phrased in the vague, neutral language endemic to most rules. They are not exactly fascinating bedside reading and do not readily lend themselves to specific application by their language alone. However, when we hear of how a supposedly “familiar” rule has been used successfully in a new way in a case, within that context the rule will stick with us. We lawyers are great pack rats, stowing away motions or pleadings from another cases that our instincts tell us may be useful later. But absent that, we are inclined to take the rules for granted, to think we know them better than we really do.

The purpose of this presentation is to encourage all of us to revisit the Civil Rules more often and in different ways, as there are many overlooked applications which may be helpful in nearly any case that any one of us are handling. In the three case studies that follow, the rules provided a competitive edge that resulted in the resolution of the case on terms favorable to the plaintiff. The rule applications in these particular situations are such that they come up commonly in many cases and be helpful in other situations.

USE OF CR 7 TO PRE-ADMIT VISUAL EVIDENCE IN

ADVANCE OF TRIAL AND PERMIT ITS USE IN

OPENING STATEMENT

For most of us, the development of demonstrative evidence for a case comes fairly late in the game, often after settlement fails and the panic of impending trial sets in. Any exhibits generated in such a crisis mentality are likely to reflect the hurried, pressured circumstances under which they were created.

A lawyer should start thinking about what visuals, models and other forms of demonstrative evidence that he/she intends to use in the case. This alerts the lawyer to conducting the discovery which will help to make such exhibits more effective, with better foundation for admission into evidence.

It is a basic law of the physical universe that the more effective a lawyer's visual evidence is, the more strenuous the attempts by the opposition will be to keep those exhibits out of evidence. Realizing this, many of us attempt to put off disclosure of such exhibits until the last minute, hoping we can “sneak them by” the opposition. While the reasons which make this tempting are understandable, the better course is to reveal all visual evidence to the other side as close to the conclusion of discovery as is practical and then invite response. Invariably, the opposition will come up with a number of objections that you never thought of. Some of these may be the usual form of nit-picking trivial pursuit, but others may be well taken.

In any event, the preferred course is to show your visual exhibits to the other side many months before trial and get feedback. If any criticisms that are ultimately delivered by your opponent(s) are well-founded, make the necessary corrections. Then show your opponent the corrected visual exhibits and ask if they have further input. At some point, you will have made all the reasonable corrections based on the opponent's well-founded objections and then you are ready to explain to the Court why any remaining objections are not well taken.

We are conditioned to think of pretrial motions practice under CR 7 in terms of compelling discovery, summary judgment and the checklist of standard pretrial motions -- e.g., motions in limine . However, most lawyers do not think of filing a motion to pre-admit demonstrative evidence and use that evidence in opening statement at trial. This failure amounts to surrendering an enormous competitive advantage.

In Voight v. Simpson, et al. , Pierce County No. 96-2-06552-3, I was co-counsel for a 24-year-old ironworker who was crushed by a one-ton steel column within a quarter inch of his life at the Simpson Tacoma Kraft Mill on June 6, 1995 . For purposes of creating visual exhibits, I was fortunate in that co-defendant Simpson actually had a time-lapse video camera on the job on which my client was seriously hurt. Though the images were somewhat grainy, they provided me with a running account of the hours leading up to my client's serious injury.

I retained a computer graphic illustrator to “clean up” the most significant images from the time-lapse videotape taken by Simpson. I then showed these images to all the key eyewitnesses in the case, as well as my client. Indicated changes were made over the course of a month and a half. We finally had images that were signed off on by all the witnesses involved as fair and accurate.

Similarly, I had a model maker prepare an actual scale model of the steel column that crushed my client. We went out to the Simpson Plant and measured all of the applicable component parts of the pulp and paper equipment involved. The model maker was able to state with certainty that the model fairly and accurately represented what fell on and crushed my client.

I showed both the computer illustrations and the scale model of the steel beam to opposing counsel. In fact, the defendant equipment manufacturer flew out its engineers from Wisconsin to look at the scale model. Ultimately, when in final form, my opponent could offer no coherent objection to either the graphic illustrations or the scale model. However, he was not prepared to stipulate to the admissibility to any of this.

Therefore, I filed a motion in Pierce County Superior Court to pre-admit all of this demonstrative evidence and to obtain the Court's permission to use that evidence in opening statement at trial. At this point, we were more than 10 months away from our trial date . However, with these useful and potent exhibits admitted, I then knew what I could count on in the trial of this matter. If some modification was needed, I could have that done and then know that the resulting product would be actually admitted into evidence.

This is an enormous advantage in preparing for trial, knowing what images and exhibits will actually be able to be used. I use visual images extensively throughout my presentations to the jury and plan my whole case around them. Therefore, it is critical for me to know what is in and what is out and CR 7 is the vehicle to accomplish this.

After filing my motion in the Pierce County Superior Court before our trial judge, the Honorable Bryan Chushcoff, I waited to see what, if anything, my opponents would come up with by way of objection. They ultimately filed nothing and just showed up on the day of the motion, arguing that these exhibits “weren't fair” and were “extremely prejudicial.”

The Court found that the necessary foundation had been laid for the computer graphic illustrations and admitted them into evidence, giving me permission to use them in opening statement. The Court extended, as a courtesy, an additional month-long period for the defendant equipment manufacturer to send its factory experts out to measure the scale model. However, the Court indicated in advance that it was inclined to admit the scale model as well. Indeed, when defendant's expert finally measured the scale model, they found that it conformed exactly to specifications. A subsequent order was submitted to the Court which pre-admitted the scale model into evidence. I then had the luxury of knowing well in advance of trial that all of my most necessary visual evidence was admitted by the court and that I could use it when I needed it most, in opening statement. CR 7 is an enormously useful vehicle adaptable to this and a multitude of other pretrial functions. The moral of the story is not to just go through the “usual routine” in terms of your motions practice. Think as well and as early as you can about how CR 7 can help you to gain competitive advantages in your cases. The Voight case ultimately settled on very favorable terms and the successful motion to pre-admit demonstrative evidence and use that evidence in opening statement at trial was a definite factor in this.

FLUSHING THEM OUT OF THE WOODWORK: CR 43(f)(1) NOTICES FOR MANAGING AGENTS

In any case involving a major corporation where corporate policies of any sort are an issue, a lawyer should always consider whether or not to call a managing agent under CR 43(f)(1). The pertinent part of the rule states as follows:

A party, or anyone who at the time of the notice is an officer, director, or other managing agent . . . of a public or private corporation . . . which is a party to an action or proceeding may be examined at the instance of any adverse party. Attendance of such deponent or witness may be compelled solely by notice . . .

Under CR 43(f)(1) a party can take the deposition of an adverse party or managing agent and shall not be precluded from examining the adverse party or managing agent at trial. If a party or a managing agent refuses to attend and testify either for deposition or at trial, the defendant can be held in default and the court can make a contempt finding against the defendant. CR 43(f)(3).

The only reported case on CR 43(f)(1) is Campbell v. A. H. Robins Co. , 32 Wn. App. 98, 645 P.2d 1138 (1982). In that case, a King County Superior Court judge struck the notices issued to the directors of the defendant corporation in a product liability case. The Court of Appeals reviewed in detail the origin of CR 43(f)(1) and concluded that non-resident parties and their managing agents may be compelled to attend trial in Washington by service of a notice to attend on local counsel.

Why summon a managing agent to a CR 43(f)(1) deposition or to appear at trial? It gives you an excellent opportunity to ask the “tough questions” to the person who is in the greatest position to issue commands in a business organizations. President Harry Truman had a sign on his desk at the White House that said, “The buck stops here.” This is the very same situation in any business organization. A president, director or any managing agent is in a position to address problems or dangers related to ongoing operations that can cause injury to others. If the managing agent says, “It's not my job,” that kind of thing does not wash with most juries. Most people are aware that CEO's and the equivalent get paid large sums of money to know what is going on within the organization and take direct action when problems appear.

Washington 's power to compel the appearance of managing agents in superior court is not found in the equivalent federal rules which are the basis for the Washington Rules of Civil Procedure. CR 43(f) is a holdover from our days as a populist state, in which any individual citizen was seen as equal to the most powerful business organization.

I used CR 43(f) to good effect in Bardwell v. Costco , Pierce County No. 98-2-03754-2, I represented Carol Bardwell, a 39-year-old married mother of four children. On February 1, 1995 , she went to the Costco Warehouse Store located at 3639 South Pine in Tacoma to buy tires. After she chose and purchased the tires, she was instructed by the Costco tire installer to pull into the service area. When she had done so, she put the car in park and got out. As she moved away from the car and backed out toward the entrance of the service bay, she slipped on a puddle of water created by the ongoing tire shop operations.

Prior to my representation of her, Ms. Bardwell had been contacted repeatedly by the adjustment firm for Costco, Carl Warren & Company. She was dealt with in an insulting, demeaning manner. I agreed to take this case for “the good of the order.” While slip and fall premises liability cases are tough to win, I was offended by how she had been treated.

At a subsequent 30(b)(6) deposition, a Costco store manager admitted that customers going into the Tire Center were subjected to a “tremendous hazard.” A Costco Tire Center policy of not letting customers into the work area was violated in this case, leading to the accident. In addition, there was no placement of caution signs on or around wet floors during the time of the accident..

The matter was noted for mandatory arbitration before Pierce County arbitrator Timothy Jacobs on December 29, 1998 . Mr. Jacobs made a fair damages award to my client after finding liability against Costco. However, in keeping with the “hard-nosed” attitude it displayed throughout the case, Costco appealed the matter to Pierce County Superior Court for a trial de novo.

Shortly thereafter, I sent a CR 43(f)(1) subpoena for deposition directed to Costco CEO Jeffrey H. Brotman (who is also a licensed Washington attorney). Shortly after this went out, my opponent filed a motion to quash, alleging that this deposition was nothing other than “harassment” and had Mr. Brotman fill out a declaration saying that he had no knowledge of the day-to-day implementation of policies and procedures at Costco Warehouse locations. (I refer to this as the “Sergeant Schultz” approach from the inane TV show of yesteryear, “Hogan's Heros.” When managing agents are noted for a deposition or trial under CR 43(f), like Sergeant Schultz, they always reply that they “know nothing.”)

Costco set a motion to quash Mr. Brotman's deposition before our trial judge, the Honorable Rudy Tollefson of the Pierce County Superior Court. After hearing the “This is nothing but harassment by plaintiff's counsel” argument from defendant's counsel, Judge Tollefson ruled that under CR 43(f)(1), he did not have the discretion to quash the deposition of Brotman. He correctly read the rule as mandatory, finding no explicit provision authorizing him to quash the CR 43(f)(1) deposition of corporate officials in the manner asked by Costco.

The day after this ruling was made by the Court, suddenly Costco came to life and made the first real offer of settlement in the case. My position was clear, Mr. Brotman had to appear for his deposition. I had an extensive list of questions ready for Mr. Brotman on all the dangers inherent in their tire shop operations and the lack of any corporate plan to reduce such dangers. Costco had gambled on winning its motion to quash and lost. I told defense counsel that his client had the rest of the week to pay the amount previously ordered by the arbitrator. After that, the asking price was to go up. Once this was made clear, the matter settled almost immediately.

USE CR 36 REQUESTS FOR ADMISSIONS TO

NARROW THE ISSUES IN A CASE

One of the most underutilized discovery rules is CR 36, whereby requests for admissions can be made to the opposing side. The purposes of CR 36 are to:

(1) Minimize expense and labor of proving facts which will not be disputed at trial and the truth of which can ascertained with reasonable certainty, and,

(2) To expedite trial by disposing of issues beforehand that are not substantially controverted.

See Weyerhauser Sales Co. v. Holden , 32 Wn.2d 714, 203 P.2d 685 (1949). Even though many times opposing counsel initially frustrate inattention of CR 36 by answering concisely drafted request for admission with rambling evasive boilerplate responses, it is nonetheless worth it to press forward and force compliance with the rule.

In Ramsey v. Worldcom , Cause No. CY3008EFS, a wrongful death action was filed in U.S. District Court for the Eastern District of Washington on behalf of Robert L. Ramsey, a 47-year-old married man with a family of seven children. Mr. Ramsey was a resident of Idaho and worked for the Idaho evacuation firm of Renegade Construction as a heavy equipment operator and foreman. Renegade had been retained by project owner Worldcom to assist on the construction of a fiberoptic cable between Seattle , Washington and Salt Lake City , Utah .

Worldcom needed to out source the expertise to design and construct this fiberoptic cable and retained the engineering firm of David Evans & Associates, headquartered in Portland , Oregon . Contracts were signed between Evans and Worldcom, as well as Renegade Construction and Worldcom. Thereafter, Worldcom engaged the firm of Cleveland Inspection Services of Tulsa, Oklahoma to supervise the installation of the actual fiberoptic communication cable.

As in most construction accident cases, one of the principle issues in the Ramsey wrongful death action was prior knowledge of the hazardous condition, a railroad bridge near Ellensburg , Washington , which had been converted for recreational use. Decedent was driving over this bridge in his caterpillar type tractor when the bridge was covered over with snow. He could not see that a portion of the bridge had been added on for pedestrian use and was nowhere near as substantial as the original railroad bridge. When his tractor got to this point in the bridge, it broke through and he died.

Factual investigation on this case was difficult in that as in many modern construction jobs, most orders came through cell phone communications. Other than the written contracts, much of the documentation as to who was in control of the job came from e-mail traffic that had been preserved, as well as from building permit applications obtained from government entities along the route.

Needless to say, each of the three defendants was blaming the others and representing itself as blameless. As in all wrongful death cases, all defendants blamed the decedent, who was no longer able to speak for himself. Their basic defense was that he was careless for attempting to drive over this bridge.

Given the complexity of this construction project, as well as the extensive geographical scope of it, something had to be done to focus the issues. In the first instance, decedent's estate's counsel did not wait to begin formal discovery of the various construction workers, but rather employed a private investigator to take their telephone statements. (Unfortunately, Department of Labor & Industries had done a very poor investigation of this death and there was very little to go on in DLI's file.) With persistence and a good investigator, ultimately all the key players were interviewed as to their observations of this job generally and Mr. Ramsey's death specifically. These were then turned into declarations and sent to all the various workers, all of whom eventually returned these declarations signed.

With a fairly detailed base of knowledge of what went on on the job, we then sent out detailed requests for admission to each one of the defendants, focusing on the following key points:

1. The employees of the engineering firm, Evans & Associates, had looked at the understructure of the bridge where decedent died on multiple occasions prior to his death.

2. At no time, did the engineering firm or any of the subcontractors or the job owner tell decedent that the structure of the bridge presented an extreme hazard to any attempt to driving heavy equipment across.

3. At no time did the job owner or any of the other subcontractors suggest that heavy equipment be driven around to the other side of the road by means of truck and trailer.

4. Defendants all knew that decedent or a member of his crew would have to drive heavy equipment across this bridge for purposes of installing the fiberoptic cable.

5. Time was of the essence on this job and there was considerable pressure to keep up a schedule.

6. Adverse weather conditions in November 1996 impeded the work on this job, making completion pressure even more intense.

7. That the chief inspector for the engineering firm came on the job every day and gave orders to the other subcontractor employees, acting in the role of general foreman.

8. Worldcom checked on the progress of the job on a frequent basis and required representatives of all subcontractors to report in on a daily basis.

Taken together, all of these requests for CR 36 admissions from the three defendants would serve to establish control over the fiberoptic cable project. Beyond this, CR 36 requests for admissions would tend to show that the defendants knew that decedent's life was in danger and yet said nothing to him.

It was a distinct advantage to file the Requests for Admissions before much discovery had occurred. At this stage, the defendants were not entirely sure where plaintiffs were headed in their case in chief. This caused the answers to the CR 36 requests to be somewhat more helpful than they would have been later on. Thus, the timing of when the CR 36 requests for admission are filed is important. However, this requires the lawyer to fine tune his/her liability case much earlier than usual.

The essential knowledge and control was admitted by the defendants to a sufficient degree that, along with the declarations from the various construction site workers, a motion was filed by plaintiff's counsel for summary judgment on liability in this case, reserving comparative negligence by the decedent for trial. This motion took all of the defendants by surprise as they had not guessed the extent of the pre-discovery evidence gathering done by plaintiff's counsel.

The case ultimately settled while plaintiff's motion for summary judgment was pending. This motion would not have had anywhere the impact it did if it were not for the substantial component of the CR 36 admissions made by the defendants.

CONCLUSION

The rules should never be taken for granted. A lawyer should constantly ask himself/herself how the rules can be applied to the needs of any particular case. These preceding three examples hopefully demonstrate to all the continued utility of taking a creative and vigorous approach to using the Civil Rules. In that way, even “tough” cases can be won. If this basic message has been communicated by this presentation, then it has been worthwhile.

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