July 2015 Plaintiff
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THE MAGAZINE FOR NORTHERN CALIFORNIA PLAINTIFFS’ ATTORNEYS A walker’s paradise − lost! — Natalie Burdick The not-so-obvious defendant: Fully investigating the car vs. pedestrian incident — Casey A. Kaufman Humanizing the “cyclist” The Magazine for — Nathaniel Leeds Northern California Plaintiffs’ Attorneys The defense “expert” with a badge July 2015 issue — Sara Peters and Valerie Rose Reproduction in whole or Five tips on handling the adverse TCR in bicycle and in part without express Bicycles, pedestrian cases written permission is prohibited. Pedestrians & — Greg Schaffer Copyright 2015by Marijuana use, comparative Neubauer & Associates, Inc. negligence and the jury trial Urban Environs — Alan Van Gelder Trial Practice & Procedure Appellate Reports Bicycle accidents: Overcoming initial EEOC v. Abercrombie & Fitch findings of comparative fault Employer cannot make religious practice a factor Defense often claims that the cyclist was in employment decisions inattentive or distracted Liability as a roadblock to the era of driverless cars — Chris Dolan Profile A C , Y R T S U D N I F O Y T I C Mark Fong d e t s e u q e R e c i v r e S e g n a h C 3 8 0 4 T I M R E P Accomplished trial attorney, avid cyclist, relishes D I A P E G A T S O P S U 3 0 7 2 - 3 2 1 4 9 A C , o c s i c n a r F n a S L I A M D R A D N A T S a diverse trial practice and says t e e r t S d r a b m o L 9 2 2 2 D E T R O S E R P that to a client, “you’re their knight…” JULY 20 15 4 Plaintiff | July 2015 | plaintiffmagazine.com Submit your latest verdict to www.JuryVerdictAlert.com Features Humanizing the “cyclist” Profile: Mark Fong 7 Many potential jurors are not in our tribe and they 44 Veteran trial attorney, avid cyclist says that to a client, bring anti-cyclist prejudices to the jury box. “you’re their knight…” NATHANIEL LEEDS STEPHEN ELLISON Five tips on handling the adverse TCR in 46 Marijuana use and the jury trial Humanizing the “cyclist” 10 bicycle and pedestrian cases If the cyclist or pedestrian used marijuana before the accident, be certain you know the rules before evidence Many potential jurors are not in our tribe The officer and witness say in the Traffic Collision of marijuana use is put before the jury. Report that your guy was at fault – but that doesn’t ALAN VAN GELDER make it so. and they bring anti-cyclist prejudices to the jury box GREG SCHAFFER K “Other” is the great “them,” the barbar - BY NATHANIEL LEEDS C O T ians over the hill, or terrorists, or anyone Department S I / else. When taking on a case involving U A walker’s paradise−lost! L Trial Practice and Procedure someone injured while riding a bicycle, it G The people who are part of the 26 O One out of every four trauma cases at San Francisco I “Self” are part of our society, so we natu - is important to recognize an undeniable, C 18 Beating comparative fault L General involves a pedestrian hit by a vehicle; a look A rally recognize our obligation to them regrettable fact: many people do not like B at ways to reduce accidents and share the roads. “cyclists.” N and expect that they will reciprocate. The in a vehicle vs. bicycle trial A NATALIE BURDICK Effective voir dire, thorough accident reconstruction Only about 10 percent of people in a C same is not true of the “Other.” When someone is part of the “Other” we do not and careful study of the vehicle codes can overcome recent survey reported riding a bicycle expect them to play by our rules, and initial findings of comparative fault. more than once a week; over 50 percent Fully investigating the car vs. pedestrian because they do not follow our rules, we MICHA STAR LIBERTY , W ILLIAM L. V EEN reported never riding a bike. When you 32 start looking at the number of senior do not believe that we need follow those incident AND JEREMY CLOYD norms when interacting with these When the obvious, primary defendant is underinsured, citizens who serve on juries the numbers are probably even worse; many people “Other” people. a thorough investigation of the accident scene can yield For a stark example: George W. surprising evidence of negligence by other parties. Appellate Reports and Cases in Brief injured riding bicycles are unlikely to get a jury of their peers – and claims Bush brilliantly exploited the concept of 49 EEOC v. Abercrombie & Fitch Stores CASEY A. K AUFMAN adjusters know it. “terrorist” as shorthand for a policy nar - An employer may not make an applicant’s religious Although I applaud the efforts of rative. We cannot negotiate with “terror - practice a factor in employment decisions. The defense “expert” with a badge our bar and community organizations to ists” because they will not follow our 36 JEFFREY I. E HRLICH change perceptions, I think it is useful to social norms, and we do not need to fol - Jurors may too readily accept the testimony examine the uphill battle many of our low any rules when dealing with “terror - of a hostile investigating officer. Back Story clients face. ists”– like due process, or limits on state SARA PETERS AND VALERIE ROSE violence – because “terrorists” are not 52 Relax, I’m a professional There are no “cyclists,” just part of us. people who ride bikes Understanding bicycling experts in the context of Commuting in San Francisco This dialectic is important for any 41 Liability in the driverless era urban riding’s evolution. As in any case, it is useful to think of attorney. If your client is seen as the Liability could be a roadblock to the era of driverless MILES B. C OOPER which client’s and witness’s daily life “Other,” jurors will assume that they were cars. Trial lawyers need to play a role as new laws activities jurors may believe are represen - even sure if being called a “Brooks not following “Our” rules and the same are forged. tative of that person’s identity, which are Brotharian” would be a compliment jurors will not empathize with your ON THE COVER: client’s injuries; they will not think “that CHRIS DOLAN Torbakhopper/The West Mission, San Francisco/Creative Commons License of no significance – and which will con - or criticism. sume our client’s identity to the point Advertisers love to play with the could happen to me.” that the jury will struggle to look past dynamic between the “telling” detail and Even if you can get a begrudging their prejudices. Appreciating the signifi - the mundane. My personal favorite is verdict in your favor, it may not reflect Vol. 9 No. 7 JULY 2015 ADVERTISING SALES cance and implications of prejudices is a Volkswagen’s “Drivers Wanted” campaign the damage your client sustained. Plaintiff is the magazine for plaintiffs’ attorneys throughout Northern No. California: 415.431.1117 part of every plaintiff attorney’s practice, which effectively suggested that owners of California. Plaintiff is an independent magazine, not affiliated with any So. California: 760.721.2500 Cyclists will always be “rule- legal professional association. We support those who protect the and must be considered from client their cars are desirable, assertive, serious E-mail: [email protected] Rate card online at www.Plaintiffmagazine.com breakers” individual’s right of access to the civil justice system. Copyright © 2015 intake through theme development and in control as they move through life. by Neubauer & Associates, Inc. All rights reserved. Reproduction in Plaintiff is published monthly by Neubauer & Associates, Inc. Mail subscriptions are free to plaintiffs’ attorneys in whole or in part without written permission is prohibited. Northern California; $50 annually for others. Send requests to [email protected]. and trial. “Traffic Sitters Wanted” probably did not We need to recognize that for most people who drive cars, and walk, the PUBLISHER EDITOR SUBMITTING ARTICLES FOR PUBLICATION For example, it is widely acknowl - do as well in focus groups. Richard J. Neubauer Maryanne B. Cooper, Esq. Plaintiff welcomes your submissions. Articles on all appropriate subjects are edged that evidence of an arrest or con - For many jurors, the fact that a cyclist is the “Other.” This is because CONTRIBUTING EDITORS considered throughout the year. Query us, or send your completed article as a viction reflects on that person’s testimony plaintiff rides a bike makes them a many people who ride bicycles disregard WordPerfect, Word or RTF file attachment to: [email protected] Donna Bader, Esq. Jeffrey Ehrlich, Esq. William L. Veen, Esq. and character. So we have rules about “cyclist” and many of the connotations the rules that apply to either pedestrians or motorists. SALES MANAGER ART DIRECTOR 2229 Lombard Street, San Francisco, CA how this evidence can be used. On the associated with cyclists are not good. A defense-hired bicycle expert Christopher S. Neubauer David Knopf Mail to: P.O. Box 470368, San Francisco, CA 94147 other end of the spectrum are the unin - Traffic tribalism and empathy 415.431.1117 866.838.2353 Fax teresting details that we would not think explained to me how he had been hit COPY EDITOR SUBSCRIPTIONS Eileen Goss Jean Booth POSTMASTER: Change Service Requested to highlight in a trial, because nobody People often divide humanity into when riding his bicycle against traffic. would care. I buy all my shirts at Brooks two groups “Self” and the “Other.” He then went on to explain that my VICE PRESIDENT - ADMINISTRATION Send address changes to Deborah L.