I’ve been settling my New York personal injury cases here in the Syracuse area for what some of my colleagues see as larger than normal numbers. It seems I don’t have to try as many cases these days because the insurance carriers want to pay me to go away before we get to trial. My “secret weapon”? The “Rules of the Road” technique to case preparation.
Here’s a litmus test for picking a New York personal injury lawyer: Ask your would-be lawyer whether he or she uses the “Rules of the Road” technique from the start of litigation through trial. If he or she looks bewildered, run away. The best personal injury attorneys in New York and all throughout these United States use it from day one in their case preparation.
The method was devised, or at least perfected, by the team of Rick Friedman and Patrick Malone. You can get their book here. (I am not affiliated with them and do not get commissions from sales of the book).
The idea is simple: Jury’s at trial get a bunch of confusing information and back-and-forth arguments about whether a defendant was “negligent”, which is what the plaintiff’s lawyer has to prove to hold a defendant liable. Negligence is a pretty nebulous wishy-washy concept, and when jurors are confused, or not sure, they tend to side with the defendant because the judge tells them that plaintiff has the burden of proving negligence.
But “negligence” is really nothing other than violating accepted safety rules. For example, when you drive a car you must follow the “rules of the road” (i.e., stop at stop signs, drive under the speed limit, etc.) and if you don’t, and you cause an accident, you were “negligent”.
The “rules of the road” technique takes this simply concept and moves it into all kinds of personal injury cases. For example, assume your case involves a child who got hurt on a swing set on a school playground during recess. You are claiming the school staff and teachers were negligent in that they were standing all bunched together, talking to each other, rather than really watching the kids on the play equipment. The teachers and staff thus did not notice that the swing set was being used inappropriately, that two kids were on the swing at once, and that others were twisting them while they pushed.
Instead of simply arguing that the teachers and staff were “negligent”, look for the school’s own internal rules about how to supervise on the playground. They might not have any, but also seek out national safety standards for supervising children on play equipment. You can find some, for example, here. You may want to hire an expert in playground supervision from the get-go so he or she can help you find and interpret these national guidelines. These will be (among other things) your “rules of the road” for the case.
An example of the kind of “rules” you will find out there for playground supervision include that supervisors should not talk among themselves, that they should scan the playground continuously, that they should spread out evenly in a circle around the play area, and that they should not be using their cellphones or be distracted by anyone or anything.
When you sue, your complaint should already be alleging that such rules were not followed. At depositions, you will get the staff and teachers and school safety officer to admit that safety is very important to them, that they will always choose the safest way to supervise children, etc. Then you will show them the rules you and your expert have come up with (or read to them) and have these same witnesses admit that they make sense, that it would be safer to abide by them than not, etc. Then, in many cases, you will get them to admit they did not abide by all of the rules.
The “rules of the road” technique is magic. To get these kinds of admissions from defense witnesses just kills the defense. Even worse for the defense is if the witnesses deny that the rules are important or should be followed. “You disagree that child supervisors should not be distracted”? “You feel that supervisors should not have to spread out around the playground to better watch the children?” “Your understanding is that supervision is equally safe if the supervisors are all clumped together on one side of the play area”? Jurors will hate the defense witness for giving those absurd answers.
The beauty of a good “rules of the road” deposition is that you win no matter what answers the defense witnesses give.
And it doesn’t matter what kind of personal injury case you have: Slip and fall, dangerous product design, construction accident, etc. There are always “rules” you can find, and use, to win your case.
If you are a personal injury lawyer in New York or anywhere else in the USA, and you have not adopted the “rules of the road” technique , you should seriously consider another line of work. And if you are an injured victim looking for a good personal injury lawyer in New York or elsewhere, you should make sure your lawyer uses this technique.