Don't Kick the Sleeping Lion
I was rummaging through some old photographs and found one I took a couple of years ago. I think this one will illustrate a lesson in trial tactics. Getting this shot was truly a serendipitous event; I was trying to capture an early moon rise when I discovered this old male lion taking a late afternoon nap. A large debt of gratitude is owed to Carl Ziess for making 500 mm f2.8 lens for my camera because without it I would never get close enough to capture a shot like this one ( I am neither that brave nor crazy!) . Now back to the lesson:
In the New Testament (Acts 9:5 and 26:14), we are cautioned about “kicking against the pricks.” No, it is not the kind you are thinking, but an archaic term for “any of various pointed objects such as a thorn or goad.” Now that I think about it, it is probably good advice regarding the other kind too. My grandfather, who used to tell me wondrous stories of his youthful adventures, had a saying with a similar meaning: “Don’t kick a sleeping lion!”
A tactical error often made in the courtroom is to vigorously attack the opposing party on a point or circumstance that has little probative value, but has great dramatic effect. This often involves issues of personnel behavior and lifestyle. Sometimes the lion awakes and bites your foot off.
One case that come to mind involved an illegal immigrant that was injured on the worksite of a public construction project. The plaintiff suffered a fracture of his left femur, a fractured pelvis, crushed left testicle and injuries to his left wrist and hand. The plaintiff had just been released from a 1 year jail sentence for robbery and aggravated assault. With no family or resources, he spent most of night in a discount movie theater; when the movie closed, he sought shelter with his companions (2 liters of beer) under a 15 ton street roller. At 4:00 AM, sleeping soundly, he did not hear construction workers start the roller’s engines. The roller moved forward toward the loading ramp of a semi truck and trailer rig crushing the plaintiff into the ground.
During the course a jury trial, it was revealed that after the incident the plaintiff had been deported and granted special dispensation to return for the purpose of this trial; that the public agency and its contractors did not follow customary safety practices before moving equipment; that the plaintiff was trespassing on the construction site and that he was intoxicated at the time of the accident.
After the plaintiff rested, the court denied a motion for non-suit stating that there were issues of comparative fault and that while the defendant made a persuasive argument for assumption of risk, state law merged that doctrine into comparative fault and therefore it was an issue properly decided by the jury. From the plaintiff table, it looked like liability was shaky and damages past medical specials would be hard to prove.
Then during final arguments, the defense attorney kicked the sleeping lion. He attacked the plaintiff not only for being a trespassing convicted felon and for being intoxicated, but attacked the plaintiff for his cultural and racial background, his alien status and told the multi-racial, multi-ethnic jury and the 2nd generation Japanese-American judge that “people like him (immigrants) come to our country and abuse our system, receive our bounty and then seek justice from our courts….the only justice he deserves was what he got; to be deported back to his country to be with his kind of people.” The judge and jury were not impressed by his arguments. He turned a wobbly case at best into a sure-fire winner for the plaintiff. The jury returned a verdict for $625,000.
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