DRI -- Presenting Defendant’s Case

Susan Pennebaker, Pennebaker Legal Services and Samantha Holmes, R&D Strategic Solutions

February, 2012

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What This Case Is Also About

• Skilled conductors like Jim Scott navigate this yard safely when they follow the rules, and Mr. Scott had safely worked at B&R Yard many times before this accident.

• Jim Scott was in a hurry and did not follow the rules.

• The official accident report states that the cause of the accident was Mr. Scott’s failure to follow the rules.

• The Yard followed the rules and is reasonably safe, and Mr. Scott’s employer, the Railroad, still operates there today.

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Mr. Scott Knew the Rules but Ignored Them

He did not stop the train 150 feet from the end of the tracks in violation of written policy.

X

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Rule 7.12 — Movements Into Spur Tracks

“Stop movement 150 feet from the end of the track.”

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Mr. Scott Knew the Rules:He Correctly Answered His Safety Training Exam

Re: Stopping At 150 Feet

“When shoving cars into a spur track, to prevent damage at the end of the track stop movements ____ feet from the _______, apply hand brakes, when necessary, to control slack, have a crew member precede any further movement when it can be done safely, and move only on that crew member’s signal?

150; end of the track 100; end of the track 50; end of the track

150; end of track would be awarded 1 point

This response received 1 point out of a maximum 1 point.”

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Mr. Scott Ignored Rule 7.12

WhereMr. Scott

Should Have Stopped

WhereMr. Scott Actually Stopped

Endof

track

Area of violation

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Rule 7.12 — Movements Into Spur Tracks

“Only have a crew member precede any further movement when it can be done safely.”

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Mr. Scott Knew the Rules but Ignored Them

He did not stop the train 150 feet from the end of the tracks in violation of written policy

He added additional cars loaded with scrap to the train before delivering empty cars, against the advice of his engineer

X

X

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Testimony of Engineer Wilson

“I advised against adding the 20 full cars before off-loading the empty cars. Jim wanted to add them first.”

10

Total Train Length Exceeded 1,000 Feet

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20 Additional Cars Full of Scrap Added to Train

Weight of Train IncreasedTrain Harder to Stop

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Mr. Scott Knew the Rules but Ignored Them

He did not stop the train 150 feet from the end of the tracks in violation of written policy

He added additional cars loaded with scrap to the train before removing empty cars, against the advice of his engineer

It is against Railroad Company policy to ride the front of the train when stopping

X

X

X

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Jim Scott Was Riding Lead Car Against Company Policy

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Mrs. Scott’s Facebook EntryRe: Her Husband’s Call That Night

“…go ahead and go to bed, I am behind…”

15

Jim Scott Had A Previous Safety Violation and 30-Day Suspension

“Jim Scott failed to comply with GCOR 6.5. The two cars that derailed were salvage cars destined for progress rail for dismantling. There was no track damage.”

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Jim Scott Was Aware of the Scrap Piles

• The condition of the scrap pile was open and obvious

• The conductor had been to the yard many times before and was aware of the scrap locations

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Jim Scott Was At the Same YardFive Prior Times In Same Month

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B&R Followed the Rules

• Provide adequate lighting?

• Provide reasonably clear walkways?

• Provide warnings?

Yes

Yes

Yes

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B&R Followed the Rules: The Yard Was Well Lit

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The Road Was Clear

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Jim Scott Could Have Walked the Road – Clear of Scrap

Mr. Scott could have walked the road and avoided any scrap

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Video of Walking on the Road

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The Official Report – Why This Accident Happened

“The conductor’s failure to maintain situational awareness combined with his decision not to stop the movement at least 150 feet from the end of the track (GCOR 7.12) was the primary cause of the accident.” [emphasis added]

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The Official Report – Conductor Error

“During the shoving movement, the conductor failed to observe GCOR Rule No. 7.12. The conductor had the opportunity to stop the train and dismount the equipment at the clearance point. However, the conductor decided to ride the lead tank car to a final spot at the end of the track. While shoving the cars, inspectors believe the conductor encountered scrap metal on or about the loco track and lost situational awareness. As a result, inspectors believe the conductor transmitted inaccurate car counts to the engineer.” [emphasis added]

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Who Was In Control?

• Of when and how to stop train?

• Of the order of loading and unloading cars?

• Of where to walk or ride when the train was stopping?

Jim Scott

Jim Scott

Jim Scott

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Jury Selection:Characteristics of Jurors Who are Bad for Defendants

• Fearful/Risk Averse

• Victims/Saviors

• Angry/Unhappy

• Liberal Views On:• Politics• Damages

• Negative opinions of corporations

• Naïve/Limited knowledge and experience with railways

• Strict Liability

• Demographics: African American, Female, Low SES

Jury Selection and

Communication Strategies

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What Jury Research Should Do For You?

• Understand the attitudes, beliefs and experiences that will shape how jurors will perceive your case.

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Why Understanding and Respecting Jurors’Attitudes and Beliefs Is Important

• Attitudes, Beliefs and Experiences are powerful information filters.

• Attitudes are expressions of the self.

• People are motivated to maintain their attitudes, favoring information that supports their attitudes and resisting information that is inconsistent with those attitudes.

• Attitudes from real-life experiences are particularly tough to change.

• Attitudes and experiences are often more predictive of verdict orientation than demographics.

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Widespread Anti-Corporate Bias Continues

90% of jury-eligiblepopulation believes corporations should be held to a higher standard of responsibility than individuals

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What Was the Biggest Cause Of the Crisis With Financial Institutions?

73% 15%12%

Corporate Greed

Government Incompetence

Other

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How Do Jurors Decide?

Emotions, then logic

Justice, then law

Conduct, then causation

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What Jury Research Should Do For You?

• Understand the story of your case from the jurors’ perspective.

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What Jury Research Should Do For You?

• Identify the beliefs and attitudes that will influence the voting behavior of your most dangerous jurors.

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Who Are We Looking for During Jury Selection?

The goals of jury selection are to:

• Identify your enemies

• Hide your friends

Rules of Thumb for Juror Communication

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Put Yourself In the Jurors’ Shoes

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[Gen Y][Boomers & Gen X]

Generational Changes in Receiving Information

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Changes In How We Receive Information

% of Information

Channel

100

90

80

70

60

50

40

30

20

10

0 20 30 40 50 60 70

Age

On-line

Traditional Media

[tv, magazines & newspaper]

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The Importance of “The Story”

Every winning case must have a story that:

1. Is interesting

2. Is easy to understand

3. Meets the audience’s expectations

4. Is actionable

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Developing Your “Story”

Why are “stories” dispositive?

• Humans are psychologically “wired” to organize information in the form of images and stories

• Jurors retain more information when it is in the form of a story

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What Should You Do?Elements of a Persuasive Defense Story

• Emphasize that your client followed/exceeded the law/regulations

• Acted ethically (they’re trying to do the right thing)

• Differentiate your corporate client from the rest & humanize it (its people/workers)

• What was the Plaintiff’s role? (failure to investigate? personal responsibility)

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The Power of “Framing Your Case”

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Death tax

The Power of “Framing”

Estate tax

46

War on terror

The Power of “Framing”

War in Iraq

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Death panels

The Power of “Framing”

Healthcare reform

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Think Tagline

ABC = Asbestos + Breathing = Cancer

“The Right Mask for the Task”

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Buckets

The filing system for every fact

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Take Advantage of New Technology

• Prezi v PowerPoint

• Trial Director or Sanction

• iPad tools: