Trial Tactics — Surprise!

It is always amusing when a lawyer in the course of the trial ends up urinating on his own feet!  In one recent case, the opposing attorney attempted to use a recently published scientific document for the purpose of rebuttal without fully understanding the  conclusions stated in the article.

The issue before the jury was whether there was a causal relationship between walking on  excessively large  railroad ballast and uneven ground surfaces and  cumulative degenerative joint disease such as osteoarthritis of the knees and hips.  The plaintiff’s expert took the position that small sized walking ballast presented a reasonably uniform surface and would not result in unusual ground reaction forces.  His opinion was based primarily on the custom and practice of the industry in specifying small sized ballast for yards and walkways and on the only scientific study published to date.  The new publication stated that based on the experiments conducted by this research group, there was no substantial difference between the ground force reaction when walking on small yard ballast and on a smooth concrete surface, which supported  the opinion of the plaintiff’s expert.  The case had been tried the year before and a new trial was granted.  The plaintiff’s expert relied on his opinions and research from the year before and did not attempt to update the literature references.  Whens the defendant presented the new article in the courtroom, without proper notice, it  reinforced the plaintiff’s case instead of undermining it.

The moral of this tale is read the documents carefully before offering them into evidence. As a side note, it would be a good idea to understand the documents, too.