What Exactly is “Can-Do” Evidence?An Example From the Plaintiff’s Side

I have been encouraging parties to focus on a positive negotiation process.  Specifically, I have been advocating that each party at a mediation focus on presenting what they can do to prove their claims or defenses and to avoid arguing what, in their own judgment, the other party can’t do.  By “can do” I mean the best evidence each side can present at a trial that creates risk of an adverse verdict for the opposing side.  Why?  Because mediations and settlement negotiations are all about identifying, appreciating, and managing such risks.  Here, I am going to expand on what I mean by this “can do” approach and how it fosters positive negotiations.  And just to reiterate, we are looking at evidence here - not argument.  

I am going to use a basic hypothetical - a car collision case in Maine - to provide a simple  example of can-do evidence versus argument.  Also, in this post I will narrow the example down to a plaintiff’s can-do presentation on the issue of liability.  In my next post, I will use the same hypothetical incident to demonstrate a can-do presentation from the defense side and on the issue of damages.   

Our hypothetical involves the following events.  The plaintiff, Mr. Peterson, had stopped his car at an intersection governed by a stop sign.  He then waited for traffic to clear.  The defendant, Mr. Davidson, had been driving behind the plaintiff.  He braked when he saw Mr. Peterson’s car had stopped, but he failed to stop in time and his car struck the Peterson car.  The speed of Mr. Davidson's car at the moment of impact was modest, resulting in the plaintiff’s car being pushed forward a few inches at most.  The damage to both cars was also modest.  Mr. Peterson complained of muscle pain, but diagnostic imaging studies did not reveal any bone or joint injury or any visible tissue damage.  A physician diagnosed a soft tissue injury and prescribed eight weeks of physical therapy.  That was the extent of Mr. Peterson’s treatment.  

 At a mediation, the plaintiff’s counsel could be tempted to say, “this is a clear liability case” - without making any further presentation on the issue of liability.  Indeed, I have heard that presentation several times.  Note this is a statement of opinion, or argument, not of evidence, but on its face it may not seem unreasonable.   

However, in Lewis v. Knowlton, 1997 ME 12, the Supreme Judicial Court of Maine reversed a trial judge who overrode a jury's defense verdict in a similar case - suggesting such collisions may not always result in "clear liability.”  Lewis involved a similar rear-end collision.  The parties had stipulated to damages, but they tried the case to a jury on the issue of liability.  At trial, the defendant testified he was momentarily distracted by someone else who was driving a van in an adjacent lane while having a "sandwich kind of stuffed in his mouth."  Although the defendant braked to avoid the vehicle in front of him, because of this momentary distraction he did so too late to avoid a collision.  The jury returned a verdict of no liability, but the presiding judge entered a judgment for the plaintiff.  The appellate court reversed that judgment, stating the jury could have rationally concluded the plaintiff had not persuaded them, “by a preponderance of the evidence that defendant failed to exercise ordinary care.” Since then, Maine juries have returned defense verdicts in other rear-end collision cases.  

So what?

So we have reasons (i.e., a Law Court opinion and a history of defense verdicts) that tell us rear-end collision cases are not always “clear liability” cases.  

So what?

So there are reasons why the defense may not be persuaded by a simple “this is a clear liability case” argument.  Furthermore, that argument, alone, does not provide anyone - mediator included - anything substantive that they can use for an evidence-based appreciation of the liability issue.  In short, such an argument does nothing to enhance the plaintiff’s negotiating power.*  

What would be more convincing, create greater risk, and provide more negotiating power?

Based on witness statements, investigation, and a thoughtful deposition of the defendant, plaintiff’s counsel could provide a brief yet detailed account of what he “can do” in this case to prove liability to a jury.  That presentation could go something like this:

I can present the following evidence at trial to prove liability.  

First, I can put on my client, Mr. Peterson, who will testify that he had been driving below the 25 mph speed limit as he approached the intersection and stop sign.  He will explain he gradually slowed his car, bringing it to a controlled and complete stop in front of the stop sign that controlled his direction of traffic.  Once he came to a stop, he kept his foot on the brake pedal.  He will testify his car was in good condition, and all his brake lights were working.  While stopped, and with his foot on the brake pedal, Mr. Peterson will tell the jury he began looking to his left and his right, waiting for traffic to clear the intersection so he could proceed safely.  

I can also call Mr. Davidson to testify.  When I deposed him last month, he testified his car was in good working order and had no defects.  He said no one in his car was causing him any distraction. He also testified his vision is good, and there was nothing that was impairing his vision at the time of this collision.  I can show the jury, through Mr. Davidson’s testimony, that he received a Maine driver’s license twelve years earlier, having studied for, taken, and passed, a Maine driver’s examination.  He has already testified he understood, as a licensed driver, he had a responsibility to see what was to be seen when he was driving, and to avoid driving his car into any other cars on the roadway.  Through his testimony, I can show a jury Mr. Davidson was aware there was a car in front of him before the collision, that he was familiar with the road where this collision occurred, and that he knew the traffic he was in was approaching an intersection governed by a stop sign.  Based on his deposition testimony, I can show the jury that, despite this knowledge, Mr. Davidson was looking to his right, and at a van that was going in the opposite direction, just before he drove into my client’s car.  Through Mr. Davidson’s testimony, I can show the jury he saw my client’s car had in fact come to a stop at the intersection after he looked back in the direction he was driving.  He will testify, as he has already, that by this time he was too close to Mr. Peterson’s car to stop and to avoid colliding with his car.  I can also show the jury, through Mr. Davidson’s own testimony, that the van he had been looking at presented no risk of harm to him, and that it drove past him in the other direction without being involved in any way with his collision with Mr. Peterson’s car. 

I can also call Mrs. Jones at trial.  She had been driving a pickup truck behind Mr. Davidson's car.  She will testify she had seen Mr. Peterson’s car coming to a stop at the intersection.  She saw Mr. Davidson’s car abruptly brake.  She then saw the Davidson car hit Mr. Peterson’s car.  She also heard a load bang from the impact.  Mrs. Jones was able to bring her truck to a controlled stop behind the Davidson car and without hitting the Davidson car.  

It just takes a couple of minutes to recite this evidence, but in that short time the plaintiff’s counsel has conveyed a lot.  

They presented a detailed description of the testimony they can present at trial.  They showed they had diligently prepared their case.  They conveyed the fact they both understood and accepted it is their burden to prove liability - and not simply to opine on it.  They also showed off their ability, and even willingness, to make this kind of presentation in a courtroom.  They even conveyed respect for the defense counsel, implicitly acknowledging they do not underestimate defense counsel’s abilities as a trial lawyer.   

The plaintiff’s counsel also gave a great deal of information for the mediator and the defense to address in a separate caucus.  Assuming, for the sake of this example, the defense has not stipulated to liability, the mediator’s initial caucus question will be whether the defense agrees the plaintiff can indeed present this evidence.  Also, is there any evidence the defense can present that contradicts or otherwise undermines the evidence the plaintiff just summarized?  If the plaintiff’s summary is accurate, and the defense can present no contrary evidence, the plaintiff counsel has given the defense evidence, and therefore reason, to appreciate it has substantial, if not overwhelming, risk on the issue of liability.  

Is this all really necessary?

Yes . . . if there is any risk the defense will contest liability at trial and you have the opportunity - such as a mediation - where you can negotiate your case effectively.  

Any party coming into a mediation aiming to resolve a dispute through negotiations must communicate the reasons why the other side should negotiate with them.  That is, they need to convey the risks the other side will face if they do not reach an agreement.  Those risks are directly related to the evidence each side can present at trial - not from the opinions or argument each side may express during negotiations.  By providing this detailed description of your evidence, and specifying how you can present it to advance your claims or defenses at trial, you are helping the other side identify and appreciate their risks in not negotiating a settlement.  Unlike a mere statement of opinion or argument, such as “this is a clear liability case”, this kind of detailed, evidence-based presentation is a respectful, helpful, and effective form of advocacy.  

As long as it is genuinely credible, coherent, and relevant, no one is going to be offended by a detailed summary of the evidence you can present at any trial.   

I grant this is a fairly straightforward example - although since Lewis v. Knowlton there have been plenty of similar cases where evidence (e.g., icy roadway, distracting passenger, limited visibility) resulted in a no liability verdict.  My point, however, is that negotiations of litigated cases are most effective, and most likely to be successful, when lawyers are encouraged to show what they can do to prove their respective claims or defenses.  This is true whether the case is simple or complex.  By embracing a positive, can-do negotiation approach that focuses on the evidence they can present at a trial, lawyers provide the parties with the information they need to make detailed and candid appreciations of their respective risks and to manage those risks through negotiation.  A mediator can use that can-do evidence to help the parties through that risk appreciation and risk management process.

In my next post I will revisit this hypothetical case, doing so from the defense’s perspective and addressing the issue of damages.  

* Roger Fisher and William Urey, in their book Getting to Yes; Negotiating Agreement Without Giving In, emphasise the importance of developing your “best alternative to a negotiated agreement” (which they reduce to the ungainly acronym, “BATNA”) to optimise your negotiating power. They argue, “the relative negotiating power of two parties depends primarily upon how attractive to each is the option of not reaching an agreement.”  In litigated disputes, each side's BATNA is the best case - that is, the best evidence - they can put on at a trial.  By demonstrating a well-developed BATNA, you are making the “option of not reaching an agreement” less attractive - enhancing everyone’s prospects for a negotiated agreement.