Free Wheeling

This is a “chicken and egg” story. A motorcycle rider and his girlfriend were injured in an accident in which the front wheel came off his brand new bike. But the question at the heart of the case was this: Did the accident cause the front wheel to come off the bike, or did the front wheel come off and cause the accident?

In this case, I represented both the driver and the passenger. The driver was a rather ordinary-looking individual of medium build, but with a distinctly negative appearance. He was never going to win a popularity contest for Mr. Nice Guy. He worked in the construction trades. On the other hand, his passenger was a warm, friendly and outgoing person. She was a physical therapist by profession and the kind of person who would make a patient feel better just by her personality.

A significant part of their life was motorcycle riding. They were part of a group of people in their forties who did a lot of cruising. At one point, my client was earning good money and purchased a motorcycle that was unique in its design and style.

The vehicle was made by Titan Motorcycle. Although no longer in business today, at the time it was a startup in the motorcycle industry. Titan was a family business, run by people who lived for motorcycles. The company was based in Arizona but my client located a dealer in upstate New York. He tried their motorcycles and ordered one that suited him and his tastes.

The day of the accident was an ordinary Sunday afternoon. The couple was riding in the countryside outside Amsterdam, NY with a group of friends. At one point not long before the accident, they stopped at a local gin mill and tipped back a few beers. The defense would later try to insinuate that alcohol was a factor in the crash, although they could not prove it.

The group continued on. The riders were spread out rather than clustered together. This led to some difficulties in the case. The accident was largely unwitnessed. The closest witness did not have a good look until after the crash had occurred.

My client’s testimony was very straightforward. He was cruising at a legal speed. The front wheel wobbled, fell off, and he went into a guardrail. He suffered a permanent injury to his right arm. His girlfriend was also injured, though less seriously.

The testimony consisted of the two clients and engineers for both the defense and the plaintiff. Titan did not manufacture all the parts of the bike. Like many U.S. manufacturers, they assembled the bikes from different parts suppliers. The handlebars, the engine, the wheels, and typically the frame were all made by the company itself. The frame is what really distinguishes the motorcycles from each other.

An engineer from Titan Motorcycle said there was no evidence of the wheel coming loose. Our engineer said otherwise.

The closest thing we had to a third-party witness did not even notice if the wheel had detached. He could only speak to the injuries.

Although there were few witnesses, the trial took a bit longer than you might imagine for a variety of reasons. We entered the judge’s chambers several times attempting to negotiate a settlement with the defense, but each time in vain.

By the time the defense came to testify, we appeared in court and found the motorcycle in question sitting in the courtroom. My client, no longer interested in the motorcycle that had caused him such injury, allowed it to be repossessed by the manufacturer. They disassembled it, brought it into the courtroom, and reassembled it.

In cases like this, most of the technical expertise goes over the heads of the jury, but you hope your expert makes enough of an impression that the jury looks favorably on his or her conclusions. How a witness testifies is equally as important if not more important than what he or she says. The jury is ultimately going to rely on their best recollections.

The one thing that made the biggest difference was this: Part of the cross-examination by the defense attorney was based upon our client’s activities beyond this accident. Of course, the defense wanted to shake the credibility of the plaintiff and mentioned the stop at a gin mill for a couple of beers.

But there was another outside activity of my client that we tried—and failed—to keep out of court. We had learned that our client had an altercation with his girlfriend in which he had pistol-whipped her.

Now, in a situation like this, an attorney might want to only represent one client and have another attorney represent the other client. But when that happens, whoever represents the passenger would be inclined to sue the manufacturer AND the driver for being negligent. We thought this would be a bad idea. It would have weakened the argument against the best and deepest pocket, the motorcycle company. Although the driver of the motorcycle was making a good living, he had no savings and had no property. So the passenger could get money from the manufacturer, maybe, but nothing more than $10,000 from the driver’s insurance company. Plus, it would weaken or ruin the case for the driver.

Another complication in this case came from the passenger’s new boyfriend. He was an ex-cop from Long Island, tattooed from head to toe and totally bald. He must have weighed about 300 pounds. He made a huge and imposing presence. Having him in the courtroom, and allowing the defense to associate him with the plaintiffs would have been a bad look for us.

As such, one of my jobs was to keep him out of the courtroom. The day he arrived, I intercepted him and got him out to the street. We sat in his pickup and chatted for a long time. He went by the name Willie and he was a decent fellow. In addition to forming a bond that day, I was able to convince him to go home until the trial was over.

Back in the courtroom, I was keenly observing the driver as he was testifying. He slouched back in the witness chair and gave unemotional answers to key questions. Under cross-examination, he was not an appealing witness. He testified the facts as he experienced them. But he didn’t come across in a sympathetic way, especially when it was learned he had once pistol-whipped his passenger.

My opinion was that he would win only a small award. But my partner, George, had a plan. He asked the client to step off the witness stand and step in front of the jury box. He put the client through the motions of his injured arm. He raised and lowered it, and moved it in different directions.

The purpose of this was for the jury to see at close quarters the limits of the arm. It also personalized him in a way that didn’t happen on the witness stand. He was standing right in front of the jury, they could see him wince as the arm rotated. They could see his frustration at the limited motion. He didn’t have to say anything.

That, I think, won the case for us.

The accident happened some 20 years ago. While I lost touch with the driver, I became friends with the passenger, Renee, and Willie. The two are still together and Willie now runs a saloon in Richmondville, NY called the Broken Spoke Saloon. I recently drove out there and paid a visit. As I entered, I could see Willie in the back of the bar. He had lost some weight and grew a long white beard. When he saw me, he gave me a big bear hug, still grateful for that talk we had all those years ago.