Chasing Rabbits in the Courtroom

While taking a short break during my deposition last week, the opposing attorney and I were trading memories of a trial encounter some 30 years ago.  I had been retained by an attorney who had a reputation of specializing in slip and fall cases.  I was lamenting that this attorney always wasted expert testimony because he would never focus on the real issues of a slip and fall case.  Almost without exception, the single most important issue to be proved to the jury is notice. This is particularly true in supermarket and other retail cases.  In this case, the defendant failed to conduct adequate inspections of the market, failed to document sweeping and cleaning spills in the public areas of the store, and failed to provide adequate instructions and guidelines to his employees regarding inspection, safety and maintenance.  Even though I   drafted maintenance and safety procedures for several supermarket chains, and had reviewed hundreds of manuals, depositions and transcripts addressing the industry custom and practice for inspections and sweeping of the markets, I was offered as an expert to provide testimony in only a single area: Slipping hazards on floors contaminated with spilled cooking oil.

Defense counsel properly objected to the proposed testimony because it was common knowledge that oil on a smooth floor would likely be slippery and dangerous.  The court ruled that it did not require a Nobel Prize winner or even a recognized safety expert’s opinion for the jury to reach that opinion, therefore he prohibited my testimony on this issue.  My client was not prepared to offer and did not disclose any additional testimony on the standard of care and breach of industry practice by the defendant.  In the absence of  this constructive notice testimony, the jury found for the defendant.

The moral of this story is stay focused on the basic issues of the case.  While establishing that a hazard existed is necessary, the real issues in the case were notice, breach of duty and the resultant damages.  Expert testimony is helpful in proving the hazard, but it is likely to be necessary to establish notice and breach.

Quoting from a 1969 lecture of mine, the deposing attorney asked: ” Is it still your opinion that the major role of an liability expert is to  reinforce the conclusions that the jury has already reached?”  My response was that the role of the expert is to assist the jury in understanding the technical or scientific evidence and to provide them with the industry, governmental or scientific standards used for evaluation.”  On reflection, that 40-year old quip is not far off the mark.  The collective intelligence of the jury is usually far superior to that of either expert or attorney.  To use a construction analogy, if we provide adequate and quality blocks of knowledge and the basis of evaluation, the jury will easily complete the structure.

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