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A Question of Justice

By J. W. James

 

With over a dozen captioned photographs and diagrams. To those readers who’d like to take the short course I’d recommend that they read the first section “Impact” and from there just click on the photos and diagrams displayed on this web page. Doing so should provide a fairly thorough picture of just what happened in the accident and its aftermath. 

To those people who have been injured in an accident, especially those accidents involving pedestrian/vehicle collisions, and who are going to, or have, filed suit, I recommend that you read and pay attention to every word on this page. There is contained within it a wealth of information on the workings of the personal injury business and what the individual needs to watch out for when dealing with it.

 

All italics are mine.

   

 


 

 

 

BACKGROUND


IMPACT : On the wet, dark morning of January 24, 1996, while walking in an intersection at Pt. Richmond, California, a pedestrian was struck by an employee operated Chevron Corporation vehicle. In this collision, the pedestrian, Karen, suffered a serious knee injury. 
    In that early morning time - 5:56 a.m. - when she was struck by this vehicle, Karen was on her way to work at the Golden Gate Bridge where she'd been employed for over fourteen years as a journeyman industrial housepainter.
    Many months after the accident it was determined, with little surprise, that due to her injuries she would be unable to continue at this job and she was thusly terminated from it. So went her solid, good-paying job (and occupation), retirement plan and most other job benefits.
   Partly in an effort to recoup these losses Karen filed a personal injury lawsuit against the vehicle operator, Mr. X, and the vehicle owner, Chevron Corporation.
   Importantly, it was Chevron Corp, the self-insuring co-defendant, that would be called upon to pick up most, if not all, of the tab for any vehicular transgressions that Mr. X, their employee, might be found guilty of committing. 
    These transgressions had the potential of costing the company a goodly amount of money and, as such, were no doubt viewed by some high muck-a-mucks - a.k.a. Chevron executives - as a plague to be avoided, and if not avoided, then at least made dilute.
    To accomplish this end, Chevron decided to roll the dice and let the case go to trial. While this course of action was, given the evidence, risky, it had the advantage of allowing Chevron to immediately disregard all of those difficult and painful questions as to what any of its actual ethical or - gasp! - financial responsibilities might be in the matter. So unfettered, mighty Chevron Corporation - the "People Do" company - was free to begin its journey down the low road, snout to the ground, in search of a way out.[1]   

 


TRIAL : Almost two and a half years after the accident the case was brought to trial in San Francisco.
    At this trial, twelve jury members were asked to make three decisions.
    One of these decisions lay in determining the amount of money - in legal parlance an "award" - that was to be awarded to Karen for her lost income. 
    To arrive at this figure the jury would be asked to consider not only the value of the job loss itself, but also the worth of Karen's lost retirement fund and other job benefits weighed against a guesstimate of her potential earnings from a future and as yet unknown occupation.
    To aid the jury in this task estimates were provided by paid economists representing each side of the case (i.e. "expert" witnesses). Unsurprisingly, the Chevron economists came up with a relatively low lost income figure, while Karen's economists came up with a markedly higher one. While these two estimates did differ significantly, I think it's fair to say that they were both within the same ballpark: one was a single and the other a homerun.
    Another decision for the jury lay in determining the amount of money to be awarded Karen for her pain and suffering. 
    Pain and suffering awards are the loose cannons of the personal injury law business: very unpredictable. One reason for this unpredictability is that pain and suffering awards have, unlike lost income awards, no ballpark comparisons for the jury to ponder in their deliberations. There are no comparisons to ponder because there are no "expert" witnesses called upon to provide pain estimates in dollars and cents for the jury to make comparisons with. That's not to say that you couldn't find people willing to do so  - if you pay them they will testify - it's rather because were such paid "experts" to attempt to affix a dollar value to someone else's suffering, they'd likely be thought of as arrogant asses by the jury (and anyone else within earshot):

 

  Q. "And would you please tell the jury, Dr. Smith, in your expert opinion, what is the dollar value of a migraine headache?"
    A. "Why certainly. I've estimated that a migraine headache is worth one thousand and forty seven dollars and five cents, per day...before taxes."
    Q. "Thank you. Oh, by the way, doctor, have you ever suffered from a migraine headache?"
    A. "No, sir, I can't say that I have."


    Another thing that makes pain and suffering awards unpredictable - and the center of usually unspoken "cause-we-don't-want-to-jinx-it attention" - is that a jury can award whatever amount of money to the plaintiff that they want to, be it one dollar or one billion (with outrageously high awards being subject to judicial revision). 
    One other unpredictable factor that often comes into play in determining the award is that this finding is often directly related to how much sympathy - or lack thereof - that the jurors feel toward the plaintiff. Justified or not, a lot of sympathy can translate into lots of cash and it is this thought that fills defense lawyers with dread (and neck brace manufacturers with glee). Especially when their client is powerful, deep pocketed and cheap - like Chevron Corporation. [1a] 
   
Of course, sympathy is a two way street and jurors may be swayed to the defendant's side by it. Either way, I think when sympathy enters the picture it can allow for decisions being made that are, perhaps unknowingly, based not so much on sound reasoning, but rather on fickle emotion. 
     So saying all of this, I have put the cart ahead of the horse: before the jury could begin to consider the questions of income loss and pain and suffering awards, they first had to answer the all-important question as to the amount of negligence that was to be levied against the Chevron vehicle's operator, Mr. X. 

 


NEGLIGENCE : In personal injury cases like this, negligence, a.k.a. liability, is defined as comparative negligence and it works thus: if the defendant (Mr. X and Chevron Corp) were found to be, say, eighty percent negligent for the accident, then the plaintiff (Karen) would therefore be responsible for the other twenty percent, and that twenty percent would then be deducted from any overall monetary award to the plaintiff. Simple.
   So were Karen within the intersection's marked crosswalk when struck - which is where she swore she was - and if she hadn't darted out into the roadway - which she swore she hadn't - then Mr. X's percentage of liability (i.e., Chevron's) would be great because his negligence would be great. The statute on pedestrians in crosswalks is quite clear about this; it is rather short and to the point: 

"BAJI 5.52.1 PEDESTRIAN CROSSING AT CROSSWALK California Veh. Code Section 21950 provides:
[(a) The driver of a vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection [, except as otherwise provided in Veh. Code Section _________].]
[(b) The provisions of this Section shall not relieve a pedestrian of using due care for his or her own safety. No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close as to constitute an immediate hazard. No pedestrian shall unnecessarily stop or delay traffic while in a marked or unmarked crosswalk.]
[(c) The provisions of subdivision (b) shall not relieve a driver of a vehicle from the duty of exercising due care for the safety of any pedestrian within any marked or within any unmarked crosswalk at an intersection.]"

    Due to the clarity of this statute and the nature of the evidence, it became incumbent upon Chevron to try and place Karen - in the minds of the jurors - outside of the crosswalk lines at the time of impact. There really wasn't, given the evidence, any other viable option. This was Chevron's one best shot at evading at least some of its responsibility by laying a  percentage of the accident on the victim: the further she could be placed outside the crosswalk line, the less Chevron's percentage of liability.
    Making this particular Chevron defense strategy more difficult was the trial judge's decision allowing for the inclusion of relevant case law stating that a person near a crosswalk should be considered to be within that crosswalk. 
    It was no doubt these factors that motivated Mr. Lee, the lawyer hired to represent Chevron and Mr. X, to keep repeating to the jury, almost mantra-like, that Karen had been struck after she had, "wandered considerably outside of the marked crosswalk".  I can only assume that this chief defense strategy of Mr. Lee's - being that he didn't really have any cards in his hand - lay in the hope that such repetition, i.e. the "Big Lie" technique - would somehow convince jurors that it was truth. 

 


VERDICT : After a week and a half of trial and about ninety minutes of deliberation, the jury brought back a unanimous verdict that Mr. X wasn't negligent in the accident - not for even so much as one percentage point's worth. 
    What this verdict meant was that by law, neither a penny nor an apology was owed to Karen for her troubles. 
    A retrial was sought from the trial judge. This was denied.
    The case was appealed.
    A little before the fourth anniversary of the accident, the three judge appeals court denied a new trial concurring with the jury that Mr. X wasn't negligent.
    With this finding Karen's soon-to-be-former lawyer filed some kind of last-ditch appeal to a single judge further up the appeals ladder. That judge agreed with the three appeals judges, who had deferred to the jury, who had reached the verdict to begin with: Mr. X wasn't in the least bit negligent. Period. 
    And with that ruling Karen's four year legal odyssey had finally come to an end: her case was lost.

 


COURT IS NOW BACK IN SESSION : I believe that the jury's verdict finding Mr. X not negligent and the appeals court decision upholding that verdict to both be very much in error - and that's putting it mildly. To more accurately describe these legal goings-on the term "gross miscarriage of justice" comes to my mind, along with words like "farcical", "absurd", "idiotic" and "wholly unnecessary". 
   To any who doubt what I say here, I would ask those individuals to examine the following pages before passing judgment. It is my belief that anyone who does so will come away with one obvious and inescapable conclusion: Mr. X was negligent. That was and is as plain as day; a no-brainer par excellence. 

 

 

STICKS & STONES & LAWYERS

 


OFF THE LOW ROAD : In Mr. Lee's motion to deny a new trial there is stated the following:

 

 "Moreover, Plaintiff's [Karen's] evasive testimony at trial on this issue [her position in the crosswalk] reflected and reflects very adversely on Plaintiff's credibility, both generally and specifically." 

 

What Mr. Lee was saying here, in a nice lawyerly sort of way, was that Karen was a full time liar. My response to this bit of slander is to ask the reader to consider its source: a personal injury lawyer in the temporary and lucrative pay of Chevron Corporation. Enough said?

 

 

TRUTH

 


TRUTH : I would wager that the large majority of people who know and have known Karen over the years would be willing - and this is stated without exaggeration - to place their hands upon a Bible and swear that they find her credibility to be just fine. That's not to say that she's some sort of saint, mind you, but rather what it means is that people who do know her well will take her at her word. It's that simple.
    These same people, if asked, would also likely say that Karen has a generally pleasant and polite demeanor and is neat in appearance and orderly by manner. 
    Karen has never filed a lawsuit (until now), been arrested or bounced a check. She has maintained a savings account since she was young. Karen votes, pays her taxes, is kind to animals, doesn't litter, gives to charities and otherwise behaves as a good citizen. She has been gainfully employed at one job or another, almost without interruption, since she was sixteen years old and has, after high school, pretty much paid her own way through life.
    Her work record at the Golden Gate Bridge was first rate, which no doubt proved disappointing to the Chevron snoops who combed through that work record looking for some mud to sling. 

   At the bridge she was not only valued for her overall painting skills but also for her painters "eye" and abilities in the craft of furniture and interior refinishing. Her work file contained several commendations attesting to these abilities. 
    Karen also had a reputation among her co-workers for being a very safety conscious employee who always used the proper equipment and safety techniques (she was and is OSHA certified) in an environment that included working in traffic lanes, working with scaffolds and ladders, sandblasting steel at high pressures and in the handling of a variety of toxic agents, some rather unique to bridge usage (she took the time to actually read usage instruction and warning labels for she was her shop safety officer). 
    I mention all of these things because I think it helps to demonstrate that Karen is a responsible person, not prone to reckless or thoughtless behavior, and certainly not the type given to "wandering" outside of crosswalks - or anything else. 
    I also think that all of this indicates that Karen possesses a certain amount of character, self-esteem and discipline: she is not the type of person given to lying - maybe not even for money. Too bad, I think, the Chevron muck-mucks can't say the same.  

 

 

JURY DUTY : YOU DECIDE 

 


DENT : While there were a number of photographs of the Chevron vehicle taken by police at the accident scene, there were none taken of its grill/front-end (excepting for one out of focus background photo). Thusly whatever damage to the front-end that might have been present wasn't recorded at the time of the accident. Damage to the grill area would, however, be revealed in photos of the vehicle taken a few months after the accident in a Chevron parking lot. [Fig. 1].
    In court this lack of an accident scene photograph left Mr. Lee free to argue that the grill was undamaged at the time of the accident, meaning she had not been struck by that part of the car, but rather by the damage-free passenger side/corner of the vehicle after she had haplessly "wandered considerably outside the marked crosswalk". [The precise importance of this impact point shall be detailed a little further on.] 
    Whatever the actual genesis of this grill damage, it is revealed in the  photograph as a slight deformation at the top portion of the simple three-piece horizontal grillwork; a dent, more evident, on the bottom piece; and a slightly aslant, broken piece running down the center. All of this damage is on the passenger side close to the blue Ford emblem at the center of the grill. If the plaintiff's body did make those dents, and those dents were about six inches to the right, then the word "side" - used to indicate the impact point - would have to be changed to "center-punched".  

Fig. 1. The dent. Click on photo to view enlargement/w accompanying  comments

   To bolster this "no-dent-there-at-the-time-of- the-accident" argument of Mr. Lee's there was the testimony of Mr. P, X's friend and fellow Chevron employee. [Note: Like Mr. P, I refer to most of those who testified - excluding Karen - by initial.] Mr. P, who arrived at the scene shortly after the accident, testified that he had briefly examined the grill area of the vehicle and saw no damage.  
    Another witness, the police officer at the scene, said that he didn't notice any damage either, adding that he'd only glanced at the front-end. 
    Mr. X, rounding things out, testified that he had closely examined the grill area and saw no damage.[2]
    There was one witness, however, whose testimony ran counter to all of this. This witness, Mr. S., summoned with his wife to the accident scene by cell phone, was a longtime friend of Karen's who by profession is a chemical engineer. Possessed with an engineers eye for detail - and a reputation for honesty - he  testified that, yes, indeed, when he had examined the front end of the vehicle at the accident scene, the damage he saw there matched up with the damage revealed in the photographs. This damage had impressed him enough that he escorted his wife from the curb to show her. [Both of these people, by the way, are willing to take polygraph tests concerning this matter.]
    Given such conflicting testimony, it seems likely that at least one person was being less than truthful while on the witness stand. In the realm of the personal injury law industry, one should expect no less.  

 


THE SKID MARK : In an accident scene photo showing the rear of the Chevron car, there can be seen on the wet pavement a pale, whitish mark, emanating from the area of the unseen right front tire, running under the car and out into the crosswalk area [Fig. 2].
    X's friend, Mr. P, when shown this photograph, testified that he thought this mark was perhaps a headlight reflection. 
    I disagree. 
    I think it's a skid mark made by the Chevron vehicle's right front tire, the tire that would have done the most braking in a panic stop by a car making that left-hand turn. 
    I would ask the reader to notice that the color of the skid mark/reflection is white, which is the same color as the light produced by the strobe flash on the camera. Were this reflection created by an incandescent lamp, such as the headlight that Mr. P had suggested, then the reflection would have had a yellowish cast to it. This makes me believe that the flash's white light struck the tiny water droplets - created by the tire skidding over the wet road surface - and that light was reflected from those droplets back to and captured by the camera lens.  

Fig. 2. Is it a skid mark? Click  to view.

  As to why the skid mark runs underneath the car, it's because when the vehicle started to straighten out from its left-hand turn onto Tewksbury Avenue it was then that the brakes were activated causing the vehicle to fishtail somewhat to the right as the passenger side front tire, the tire doing most of the braking, skidded forward - leaving the mark underneath the car. 
   [I think that that photo does tell a story and that story is pretty much of a no-brainer; you needn't be a rocket scientist or Sherlock Holmes to figure it out. So why was it that the collective intellect of the twelve adults on the jury proved so utterly incapable of grasping this photo's simple significance? Good question, that. Also see Fig. 4] [2a]

 


RUN! FAST! GET YOUR SHOVELS! : In Mr. Lee's motion to deny a new trial the following can be found:

 

"This evidence, along with the undisputed evidence of the position and location of the car driven by Mr. X immediately after the accident, and the evidence of Plaintiff's location immediately after the accident, is compelling evidence that at the time Plaintiff was hit by the car driven by Mr. [X], Plaintiff was considerably outside of the marked crosswalk."

 

   Compelling evidence? Has this man been drug tested?
    In the accident scene photographs showing the driver's side of the car [Fig. 3], the rear driver side tire is resting on the crosswalk line. What that means is that the front bumper - the point where the vehicle first made contact with flesh and bone - is about twelve to thirteen feet beyond that crosswalk line.
    Keeping that in mind, I would ask the reader to consider these two points: 1. After the collision, Karen ended up lying on the pavement about eight to ten feet off to the side of and several feet forward of the now stationary car's passenger side front bumper. 2. She arrived at that spot by being propelled many feet through thin air in reaction to the vehicles' braking action after the vehicle had impacted her. And what this means is that the vehicle that struck her must have been traveling at a pretty good clip and vehicles traveling at such a clip require several feet to come to a halt, especially when braking on wet pavement. 

 

  In the parlance of vehicular accident investigation, the action of someone hitting the brakes, as Mr. X  must have, is broken down into two parts: part one is the "thinking distance" - the  distance that the vehicle travels as the driver first realizes and begins to react to an imminent collision (X said he saw the pedestrian "instantaneously prior" to impact) and part two is the "stopping distance" or the distance that it takes the vehicle to stop once the driver has reacted and actually activated the braking mechanism. 

 

Fig. 3. Side view of the car.  Click to view.

    I think the central question here, given these facts, becomes not one of whether the pedestrian was in or near the crosswalk at impact, but rather, it becomes one of how could the pedestrian have been struck anywhere other than within/near the crosswalk? [2b] 
    Also, judging by where the skid mark seems to start in the police photo [Fig. 2], I would guess that the front bumper was close to crossing the far white crosswalk line when the brake was activated. If correct, that means if Karen were within the crosswalk lines when struck, Mr. X had activated the brake after impact, not before.  [2c]  

 When the appeals judges weighed in on all of this they had somehow concluded that Karen was "a few steps off the curb"  when the car hit her. How the judges had gotten this idea I didn't have - at that time - the foggiest notion: As the scale diagram of the accident scene - contained within the appeals brief - clearly showed, Karen had to have been, at the very minimum, ten feet from the curb just to have been grazed by the vehicle, much less to be hit full on.

Fig. 4. A close-up of the scale diagram showing the crosswalk area. Click to view

 Oh, and lest I should forget, there was one thing that Mr. Lee didn't highlight for the jurors regarding the "very credible and undisputed" location of the car, and that was that a fair-sized portion of it was still within the crosswalk [Fig. 3]! Not only was this a rather embarrassing fact to be avoided, but it also made impossible the argument that the car was considerably outside of the crosswalk. All Mr. Lee could hope to do was tiptoe around the subject by placing Karen considerably outside of the crosswalk and you-just-never- bother-your-pretty-little-head-that-the-ass-end-of the-car-is-still- a'hang'in-over- the-crosswalk line. No sir, don't pay that very revelatory fact no mind, whatsoever. And none of them did. [3] 
    


MISTER WIZARD, PLEASE! : Now, having filled in the canvas a little more, I'll return to the aforementioned dent controversy of side/corner impact site versus full frontal impact site and what makes this important.
   If Karen were "considerably outside of the marked crosswalk" when struck by the full front of the vehicle, i.e. the dented part of the grill, that impact would have propelled her - given that a vehicle at that point would be traveling more or less straight down the road - to the front of the car and not off to its side, yet her landing position was undeniably considerably off to the passenger side of the now stationary vehicle.[3a]

Fig 5. Two views of the crosswalk. Click to view.

   This meant that were she indeed struck by the front part of the grill - the dented part - the only place that that impact could have occurred to put her where she landed was back in the crosswalk by a vehicle still turning onto Tewksbury Avenue! It was this reality that made it so imperative for Mr. Lee to disavow the dent evidence with his "passenger side/corner of vehicle impact point /wandered considerably outside the crosswalk" defense strategy. 
    Curiously, Mr. X had told the police officer at the accident scene that he had struck Karen with the right-front of the car (see Fig. 1), yet when he testified in court, that changed: "The only movement that I saw [an instant before the collision] was the movement of her head, and it was just off to the right-hand side corner of the passenger's side there...". 
    If the reader would like see more clearly how Karen actually ended up where she did and the car where it did, I'd recommend they examine the scale diagrams of the crosswalk area [Fig.4 & 6]. What these diagrams tell me - utilizing my eighth grade science education regarding mass and velocity coupled with just a tiny bit of common sense - is that the plaintiff was likely somewhere between seven to nine steps into the crosswalk when the full front of the car -  still turning onto Tewksbury - smashed into her, rocketing her forward as it braked, skidded and fishtailed, coming to rest in a now almost straight-on, nose down the road position - with all of this action occurring in a second or two.  

simple1.jpg (12877 bytes)

Fig.6.   
 A   simplified overhead view of the crosswalk. Click to view.

    What all this told the appeals judges was that, "As to whether or not [Karen] was in the crosswalk at the time she was struck by [X], [Karen's] accounts of her position were difficult to reconcile with the evidence of where she ended up". [see Figure 6a][3b]

    Difficult to reconcile? Whatever did the judges mean? I don't think it's in the least bit difficult to reconcile. The place she landed at on the pavement is just about where someone would end up after being smacked in the crosswalk by a car entering that crosswalk as the Chevron vehicle had. Also, I think it is quite obvious that if Karen weren't in the crosswalk at impact, then she sure as hell had to have been at least near it and was therefore covered by the the trial judge's instruction to the jury that, "a person near a crosswalk should be considered to be within the crosswalk".

   Taken together, all of this led me to think - at that time - that the

wpe12.jpg (21107 bytes)

Fig. 6a. Another view of the crosswalk. Click to view.

judges were just as woefully deficient in their understanding of rudimentary physics as the jurors. But it turns out that scientific ignorance was apparently not, as the reader shall discover a little further on, the reason for the judges mistaken decision.  [Note: I use the word "physics" in a general scientific sense. More precisely, the science used to interpret the how and why of an accident such as this is mechanical physics.][3c]
    A related question regarding front-end damage to the car was in something that Karen and I witnessed after she'd returned home after four  days in the hospital. Bruises became apparent on the back and side of her thigh over the bruise that was already there. They were made up of a few thin parallel horizontal lines that wrapped about the thigh - perhaps six or eight inches long - which you could have thought were drawn with a ruler. I wonder what could have made such lines? Perhaps those horizontal pieces of grillwork? [4] [4a] 

 


THE REAL WORLD : As to the real world of my own experience in using this particular crosswalk, I can tell the reader that when entering it from the direction Karen did it's only natural to walk within the crosswalk lines from the wheelchair ramp on one side to the wheelchair ramp on the other - you're not stepping off a curb and then up onto one. While not the shortest route, it is the one of least resistance. Following it also places the pedestrian up on the curb and out of the pavement area where the buses swing around the U-shaped stop.
    In the hundreds of times I've used this crosswalk, I can't ever remember straying outside its borders. Honest - except maybe when I'm a couple of feet from the curb. 



IT'S HOWDY DOODY'S TIME! : When Karen had stated in her deposition - taken months before the trial - that on the morning of the accident she was running too late to walk to the bus stop, Mr. Lee seized upon that statement and, for the jury's benefit, twisted it to imply that she was in some sort of a careless rush. 

 This haste, said Mr. Lee, had caused her to neglect her normal safety procedures, which helped to explain just why she had dashed/lurched/wandered from the curb and crosswalk into the path of the oncoming Chevron automobile. In his motion to deny a new trial it goes like this:
    

    "Plaintiff testified she was running late. Indeed, the evidence was that Plaintiff had left herself a very small margin of error to get to her bus stop on time.
    "Plaintiff testified that after driving to the corner and parking her car, she started shutting it down at 5:55 a.m. Plaintiff's bus was due to arrive at 6:00 a.m. Plaintiff testified it took 12 to 15 minutes to walk to her bus stop from her home. Thus, walking to the bus stop on the morning of the accident was clearly out of the question. In fact, Plaintiff almost did not have enough time to drive to the bus stop."


    So said Mr. Lee, but what was the truth? 

  Consider first that Karen had a very low rate of work tardiness. Waking and preparing herself for work - up at 4:30 a.m. - were rigid routines that she'd followed for many years. She exercised such discipline in part to make sure that she didn't miss buses or carpooling rides to work - not to mention that the G.G. Bridge frowns rather severely on employee tardiness. 
    As far as her driving down to the bus stop there was nothing at all unusual in this for she often did so. It was a convenience that allowed her more free time in her morning work preparation ritual. 

  Karen's usual routine when driving down to catch the bus was to park her vehicle at the curb a little distance above the stop sign at the base of the hill on Tewksbury Ave. From there she would walk across the Castro St. crosswalk and then left onto the Tewksbury Avenue crosswalk and follow that over to the bus island and on to the general area of the bus stop sign. [see fig. 10]
    On the morning of the accident, after arriving at the parking spot, she glanced at the bright amber digital display on her vehicle's clock face before shutting off the engine. That clock display, accurate to within seconds - I periodically re-adjusted it using GMT - read 5:55 a.m. 
    From that parking spot it takes a pedestrian, walking at a normal pace, less than a minute to reach the center point in the crosswalk on Tewksbury Avenue: that is, to a point a little beyond where the impact actually occurred. What this means is that the accident must have happened at no later than 5:56 a.m. and what makes that significant is that the bus was actually due to arrive at 6:03 a.m. and not the 6:00 a.m. time that Mr. Lee had quoted to the jury. [The bus schedule was changed from 6:03a.m. to 6:00 a.m. many months after the accident. See fig. 7.] [5]

Fig. 7. Bus stop schedule. Click to view.

  Further, from the place the plaintiff was struck, it would have taken a pedestrian, traveling at a normal pace, another forty-five seconds or so of walking to reach the bus stop sign area. 

  All of which means that Karen was so late for her bus that she was, in actuality, at least six standing-at-the-sign-ready-to-board minutes early!
    Also worthy of consideration is that from the general area where Karen parked her vehicle on Tewksbury Ave., the exit and entrance ramps - and approaches - that her bus used reveal themselves through the freeway overpass supports at about an eighth of a mile away. To the pedestrian headed across Castro Street were a bus spied coming down the exit ramp it would leave that pedestrian enough time to reach the bus stop area, walking at a regular pace, using the crosswalks - and that's assuming that the bus wasn't further delayed by the two traffic lights (there are now three) that it had to go through to reach the bus stop. On that morning when Karen had exited her vehicle there were no buses visible on the ramps or anywhere else - but of course there weren't: she was, at that point, at least a full seven minutes early. 
    Yet, to Mr. Lee, all of this was - no matter the actual timeline of the accident - "solid evidence" which demonstrated that the plaintiff "had left herself a very small margin of error to get to her bus stop on time".[5a] 
    The appeals court judges, adding their two cents worth, concurred with Mr. Lee when they found that, "She was admittedly in a hurry...". 

 One important thing to remember here regarding this "running late" crapola is that given the actual timeline of the accident the question of whether Karen drove or walked to the bus stop - as the attentive reader shall discover - is of absolutely no relevance; it was just more double-talky lawyerly nonsense thrown in to hopefully further confuse the confusable. This common lawyerly tactic - which I refer to as "blabberization" - is usually employed by the lawyer who holds few, if any, cards in his or her hand.  

[Also see the seventy plus seconds of video and the six still photos in the Lights, Camera, Reality section of the Got Justice? website. The video shows a number of vehicles going through the crosswalk in real time in the real world.] 

 


PERRY MASON NEVER DID LIVE HERE : At Karen's pre-trial deposition, Mr. Lee produced a photograph of the crosswalk and asked her to mark on it where she thought she was when struck. Mr. Lee was quietly insistent that she do this. 
    Karen hesitantly marked the photograph at a spot inside the crosswalk line near where the first set of yellow no-passing lines abutted the white right-hand side crosswalk line. 
    Many months later at trial, Mr. Lee produced an enlargement of that marked photograph for the jury, pointing out that if the plaintiff were at the spot she'd indicated, she would have had already traveled beyond the vehicle's path through the crosswalk area, meaning that - and Perry Mason get out of the way - Karen wasn't at the spot she had marked! Brilliant!
    The only trouble with this courtroom zinger was that it was already obvious that Karen wasn't at that spot. The simple proof of that was to be found in that she had not been missed by the vehicle. So given that, I wondered why Mr. Lee was now wasting valuable court time talking about where the victim wasn't? After all, he'd already spent considerable time arguing that he knew just where the pedestrian was at impact. Remember? Considerably outside the crosswalk being struck by the  passenger side/corner of the vehicle? Remember that?
    The only reason I could come up with on what was motivating Mr. Lee into taking this foray into the inane - other than his ongoing efforts to befuddle/blabberize - was that it allowed him the opportunity of demonstrating just how "evasive" the plaintiff really was, for, according to him, the reason she'd marked the wrong spot wasn't because she was mistaken, rather it was because she was lying! As to why exactly Karen would be lying about such a thing - it was of no advantage for her to do so - Mr. Lee never did bother to explain. 
    Now as to the actual reason why Karen failed to accurately mark her position in the crosswalk photograph, I believe there are a couple of reasonable explanations. 
    One of these is that this crosswalk photo - provided by Mr. Lee, remember - had been taken curbside looking across the crosswalk which gave an overall flatness to the perspective which in turn made marking a given spot less precise. If only he'd supplied a photo or diagram with an overhead looking-down- upon-the-crosswalk view, then I believe Karen would've been much more accurate in marking the actual impact site. Somehow though, I don't think accuracy was at the top of Mr. Lee's Things to Do List - which is precisely why he produced that particular photo to begin with.
    As to the other possible explanation for Karen's confusion about her position in the crosswalk, it should be remembered that just after glancing to her right, she had turned her head left, and it was then that the car's blunt nosed bumper started to smash into her. Such bone-crunching trauma must be quite unsettling; maybe unsettling enough that it could cause the "strikee" to fail to note her precise terrestrial position in that small second before "lift-off".

 


DOTS : Further "credible evidence" - again according to Mr. Lee - centered around Karen saying that she remembered looking to her right and seeing a set of two reflective dots off her right foot moments before impact. 
    That bit of testimony presented Mr. Lee with another gem for his defense arsenal: the "dot" gambit. 

  What the dot gambit was centered around was Karen's statement that at the place she said she saw the two dots - this being where the double no passing lines abutted the white crosswalk line - there was, at the time of the accident, only one dot, for its twin was missing! Whoa![6] What this blockbuster had to mean - according to Mr. Lee - was that the plaintiff's eyes must have actually been looking at the intact pair of reflective dots several feet further down the street. Clearly this was just more evasive testimony! And not only was this one dot/two dot business "evasive testimony", but it was also, as Mr. Lee pointed out in his motion to deny a new trial, "compelling evidence" that at the time Plaintiff was hit by the car driven by Mr. [X] she had obviously wandered "considerably outside the marked crosswalk". [Yawn. Where else? Fresno?]
    Now I hate to keep disagreeing with Mr. Lee, but I see this "compelling" dot evidence in a completely different light. To be truthful, I find the thought that these recalled mental images of Karen's somehow proved - or even suggested - that she had, "wandered considerably outside of the crosswalk" to be ludicrous. 

Fig. 8. A side view of the car, showing the dot "evidence". Click to view.

  What does your vision encompass when you glance in a particular direction? And when you do turn your head and glance in a direction, where are your eyes looking? Straight ahead or perhaps a little up or a little down or maybe to the left or right? What does your peripheral vision reveal? What are all of the visual images that are taken into the brain in a split second glance of a street scene like the one Karen saw that morning? And how could anyone be relied upon to accurately relate such information to another person at any time, much less days or months after the event? Especially after having undergone, within a moment or two of that glance, the great trauma of being struck by a motor vehicle?
    As to what I think actually happened in those moments leading up to the collision is that Karen had paused in her stride to adjust her backpack, which she was carrying by one strap on her right shoulder. In adjusting it, she hooked her right thumb under the strap and lifted it outwards and up towards her neck, while at the same time pushing upwards on the bottom of the pack with her left hand. In performing this action, it would have been only natural for her head to turn somewhat to the right and dip downwards, bringing those two dots into her direct view. 

 


BUSTED! or JUDGE YE NOT: Not to be outdone by Mr. Lee, the three appeals judges had their own take on this dot business. They had unanimously concluded that:

 

  "Thus, if immediately before the accident," the plaintiff saw, "only a single  orange reflector by her foot she would not have been most of the way across the street but fairly close to the curb".     
    

 As the diagram (Fig. 4) and photos contained in the appeals brief clearly showed, the nearest reflector/dot bearing line was at least nineteen feet from the curb! [See also Fig. 6] This diagram also clearly reveals that the car itself was a considerable distance from the curb/wheelchair ramp. What this means is that the judges had - and from the very start - completely confused some simple, yet crucial evidence that was one foot in front of their noses! What they had no doubt thought was the curb that the plaintiff had just stepped off of was in actuality the dot-bearing no passing lines making up one border of the 12 foot wide "dead zone" (i.e. not a pedestrian island; see red tinted area in the above diagram) at the center of the road, which the plaintiff was walking toward - not away from! Oops. [6a] 
    As further evidence of this judicial confusion (and "confusion" is the correct word - read the judges decision should you have any doubt about that) there is also this statement contained within that decision: 

 

"A trier of fact could have concluded that it would have been physically impossible for her to have been already near the center of the street and thus clearly in X's view when she was struck by his car".  

 

A "trier of fact" would come up with that, huh? An observant "trier of fact" certainly wouldn't have because it's quite obvious and indisputable that the plaintiff had to be near the center of the street - not the curb - in order to be hit by the car to begin with. 
    Of course, one shouldn't be too severe on the judges for their confusion. If they'd read Mr. Lee's motion to deny a new trial it's quite understandable how they could have been confused for that document is nothing more than a bundle of confused, contradictory lie. 
    Also, in making this erroneous ruling, the judges were, I suppose, burdened with heavy caseloads and likely didn't have a lot of time to go over what was to them a simple-seeming pedestrian/automobile collision. Especially in a case where there was a unanimous verdict, the plaintiff wasn't dead or in a wheelchair, and that they, the judges, didn't understand what the hell they were ruling on. [7] 

 But sad it is that these judges missed such a golden opportunity to make right what was so obviously and shamefully wrong. It was their chance to shine and they blew it. They could have rendered actual justice by reversing that cruel and witless verdict, but instead they chose to spare ultra-wealthy, ultra-venal and ultra-sleazy Chevron Corporation the very odious task of having to dip into its small change jar to pay its bill. 

  
GLOP : In addition to belaboring the dot "evidence", Mr. Lee also droned on about Karen perusing her destination of the bus stop sign area from across the street. In his motion to deny a new trial it goes like this: 

 "In fact, that point [the bus stop sign]  was so far to Plaintiff’s right that it is not even depicted on Plaintiff’s Trial Exhibit No. 11 in evidence (Scale Diagram)". 
    

 I don't know why the sign wasn't depicted on Plaintiff's Trial Exhibit 11, but I do know that if the reader would like to see where in actual fact the bus stop sign is in relation to the crosswalk, I'd recommend they examine Figure 9. [Note: The sign was apparently struck by a bus sometime in '07 and has now been moved several feet back from its former position near the curb.]

Fig. 9.The bus stop as seen from the wheelchair ramp. Click to view

  Also, along with this "perusing" business, Karen was, according to Mr. Lee, in a somewhat euphoric state because she was going to start a long awaited class that very evening. This euphoria had apparently compelled her - or so Mr. Lee seemed to be suggesting - to neglect her normal safety procedures and begin to wander considerably outside of the marked you-know-what in some sort of happy zombie-like trance, her entire being fixated on the bus stop sign area. The strange thing about this, were Mr. Lee to be correct, is that had Karen been traveling in such a direction it would have led her far to the right of that bus stop sign. [See also Fig.6] 

 


CAR? WHAT CAR? : Along with the "credible" struck by the right side of the car, dot and glance "evidence", Mr. Lee had another apparent winner with the jury. This piece of squirm - intended to lay a good percentage of negligence on Karen - asked the question of why she didn't see the Chevron car awaiting a green light at the stop bar prior to her entering the crosswalk.
    In the motion to deny a new trial he states that: 

 

 "...the only explanation for Plaintiff's failure to see the car driven by Mr. X any earlier [right before impact] is that at the time of the accident Plaintiff did not observe her rules of safety: Stop; Look; and Absolutely Wait for any Cars in the left turn lane to pass". 
    

  Uh-huh. 
    What Mr. Lee was trying to suggest here was that the Chevron vehicle, after having proceeded forward from the stop bar, was now near at hand, rapidly bearing down on the crosswalk, when Karen suddenly and crazily left the safety of the curb to begin lurching and wandering "considerably outside of the marked crosswalk". 
   The actual truth of this matter can be determined by understanding a couple of things. One is that it takes a car starting from the stop bar, under normal acceleration, usually somewhere between six and a half to maybe nine seconds to intersect the midpoint of the crosswalk. The other thing to consider is that the plaintiff was about seven seconds into the crosswalk at impact. This means that X's car had likely started to move from the stop bar at, or just prior to, the time when the plaintiff had entered the crosswalk.

Fig. 10. Large scale diagram of the intersection. Click to view.

 So the relevant question here is why would the plaintiff be waiting for a car to make a left turn when that car was stationary or just starting to move and over one hundred and forty feet away?

 Besides that, if I read the statute on crosswalks correctly, I think it's the car that's supposed to absolutely wait on the pedestrian and not the other way around. Or did I misread something? 

  Incidentally, Mr. Lee was very much mistaken in his contention that the "only" explanation as to why Karen didn't remember seeing the Chevron car at the stop bar was because she "did not observe her rules of safety". There's a second possible explanation: When a car traveling at speed through the underpass area catches a green light approaching that stop bar, it can cover the distance from the stop bar to the crosswalk in under five seconds. If this were the case, and I strongly suspect it was, it would explain why Karen didn't remember seeing the Chevron car waiting at the stop bar as she started into the crosswalk: it wasn't there yet!

 

 

THE MYSTERY CAR : In addition to the Chevron vehicle there was one other motor vehicle mentioned in testimony relating to the seconds leading up to the accident. I refer to this second vehicle as the "mystery car".

Fig. 10a. Another view of the intersection showing the stop bar area. Click to view.

Karen testified that as she stood in the wheelchair ramp, prior to starting across the street, she saw to her left a white car coming down the exit ramp straightaway, which at that point parallels Tewksbury Avenue. As this straightaway approaches the intersection it splits into two lanes with the right lane exiting into Point Richmond and the left passing by the stop bar - the stop bar that X swore he was waiting at - curving leftward on through the underpass toward the freeway ramps and other points East. [See Fig. 10 & 10a.]

 Karen also testified that she had waited at the wheel chair ramp to be certain of this car's route before entering the crosswalk, making sure that it didn't suddenly make that right turn into Pt. Richmond and the crosswalk area she was about to enter.

  Conversely, X testified that he saw no other cars as he sat at the stop bar awaiting the green light.


"THE MOTHER OF ALL TELEPHONE POLES EXCUSE" : Mr. Lee, in what I mistakenly thought was another pathetic attempt to explain to the jury how his keen-eyed client could have missed seeing the woman in the bright purple raincoat came up with yet another dilly, which I refer to as the "Mother of All Telephone Poles Excuse". [7a]    

 

Fig. 10b. Two aerial views of the intersection. Click to view.

In his motion to deny a retrial Mr. Lee writes: 

 

"Also, there were significant physical obstructions to [X's] view of Plaintiff. One physical obstruction was the utility pole at the corner of Tewksbury Avenue and Castro Street in front of the Erickson Building that obstructed [X's] view of the corner of Tewksbury Avenue and Castro Street". 
    

 From the stop bar that X testified he was waiting at there is an unobstructed view of the Tewksbury Avenue wheelchair ramp/crosswalk area [Fig.11] through the driver's side door window. To the immediate right side of the wheelchair ramp, viewed from the stop bar, there is a wooden telephone pole (properly referred to as a utility pole). Given the direction that the pedestrian was traveling, this pole was the only object within forty feet of the crosswalk/wheelchair ramp area that could have possibly obstructed X's view of the plaintiff from the stop bar. 

  Given this reality, Mr. Lee, as predictable as the tide, tried to impress upon the very impressionable jury, that, a.) this was the "Mother of All Telephone Poles"; and b.) thusly, being that it was the "Mother of All Telephone Poles" meant that Karen, as she walked past the behemoth, must have been swallowed up and hidden from Mr. X's eagle eyes for just the longest time, only to then suddenly and crazily emerge from its cover to begin wandering considerably outside the crosswalk and into the path of the oncoming vehicle. This I find, like most of Mr. Lee's other "evidence", to be another bit of gibberish that doesn't hold up to even mild scrutiny.
    Here's why. If you view someone from a distance walking past a utility pole, at a normal pace, how long is that person hidden from view? An eighth of a second? Perhaps a quarter? For that matter, is a pedestrian ever completely hidden from view when doing so? And how could such a split second of concealment explain how Mr. X, alertly awaiting the light to change, fail to see Karen in all the many other seconds that she had to have been visible to him before and after passing behind that pole?

Fig. 11. A view of the stop bar from the crosswalk. Click to view.

  Not that any of this matters to begin with. Remember, Karen was already waiting on the wheel chair ramp to determine the final route of the "mystery" car and it was only sometime after that car had sped past that she started into the crosswalk. This means that she'd already passed by the visually "significant obstruction" of the "Mother of All Telephone Poles" seconds before X could have started into the intersection, whether he was waiting at the stop bar or driving through it at speed. 
   With the removal of the "Mother of All Telephone Poles" as a possible obstruction to X's view, all that's left in the category of "significant obstructions" is the galvanized traffic-light pole [Fig. 11] thirty feet forward of and off to left of the stop bar. As a car proceeds forward from the stop bar, under normal acceleration, this pole would block the driver's view of the ramp/crosswalk area for only the briefest of moments. That galvanized pole is over seventy-five feet from the wheel chair ramp. After it there are no more obstructions - or excuses - to explain away how an alert driver could miss seeing a pedestrian in the crosswalk area.
    Who or what is responsible for the fly being swatted? The fly? Or the person wielding the swatter? 

 


THE DEATH OF COMMON SENSE : The following are some gems culled from Mr. Lee's motion to deny a new trial. If the reader becomes confused while going over them, don't be concerned - that's the whole idea:

 

"In the case at the bar, the evidence is that Plaintiff was not in plain sight, and that [X's] view of Plaintiff was substantially impaired and/or obstructed." [Oh, really, Mr. Lee? How's that?]

 

"There is wholly insufficient or no evidence that the plaintiff was in plain view of the defendant's headlights for a sufficient distance to allow the defendant to see the plaintiff and to avoid impact.'" [If plaintiff were where Mr. Lee said she was when struck, that being considerably past the crosswalk line, wouldn't that mean she'd have been captured in the headlights all...the...longer? Duh.]

 

"The credible testimony of [X] that he slowed the car to a safe speed that would allow him to see pedestrians and stop quickly; that as he traveled through the intersection he did not stare fixedly straight ahead but continually scanned the area for pedestrians; that the car was under control at all times; and that he was careful." [Careful? Credible testimony? How about incredible?]

 

"[X] was confronted with adverse weather conditions, poor lighting, significant obstructions to his view, and a glare that impaired his ability to see pedestrians. Also, the evidence was that Plaintiff failed to exercise due care for her safety, and Plaintiff was engaged in unsafe behavior at the time of the accident." [Yeah, you bet it was unsafe behavior - Plaintiff was in the vicinity of a motor vehicle being operated by Mr. X!]

 

"Other than Plaintiff’s sheer speculation and conjecture, there is no evidence that [X] was traveling at an unsafe speed; there was no evidence that he was inattentive; there was no evidence that [X] was driving carelessly." [Well, ah, there was that body lying in the street, now wasn't there, Mr. Lee?]

 

"The testimony of Plaintiff from which it could reasonably be inferred that at the time of the accident Plaintiff was engaging in conduct which impaired Defendant's ability to see her in time to avoid the accident." [That again? Ha! Ha! Ha!]

    Putting this all together the one obvious and logical question that arises is were the plaintiff at least ten feet from the curb when struck - which she indisputably was - then just what part of her "unsafe" conduct "impaired" the visual abilities of "the most cautious driver in the world" to see her whether she was within or outside of the crosswalk lines? This very basic and important question, contrary to Mr. Lee's fuzzy, feeble and self-contradictory assertions, was never answered.
   Mr. X wasn't very helpful in this area either. In a pretrial deposition taken in March of '97 he stated:

"The intersection was dark. There -- it was overcast. It was raining. [8] There appeared to be -- [Karen] appeared to be wearing dark clothes. There's possibly obstructions to view. I mean there's a telephone pole there. There's probably a lot of other reasons. I can't tell you that one is the right answer." [Now that I don't doubt.]

    To sum up all this I'll refer to one more statement contained in Mr. Lee's  motion to deny a new trial: 

"The evidence at trial was that there were several significant, verified factors which singly or in combination explained why [Mr. X] did not see Plaintiff until it was too late to avoid hitting her, even while he exercised due care."

   Gee, Mr. Lee, would you mind naming just one of those "significant" and "verified" factors? I'm sure we'd all love to hear it. I'll put it up on this website in no time. As a matter of fact, and in the interests of fairness, I'll be happy to put online any comments to the Got Justice? website from any judge, any lawyer or any juror involved in the case. There are questions here that I sincerely believe, in the interests of actual justice, now and into the future, really do beg answers. 

 Note: As of March, 19, 2012, none of the above mentioned people have deigned to respond in any manner to the Got Justice? website. I guess that just goes to show that failure is an orphan after all.[8a]


HAS ANYONE SEEN MY FOOT? : Mr. X stated that he didn't know just where Karen was in the crosswalk area when he hit her. 
    Another thing he didn't know was where his right foot was in that microsecond between sighting and striking her - whether or not it was on the accelerator or brake pedal or somewhere in between, he just couldn't say - although he finally did remember that it was not on the brake pedal.
    One item that X was able to recall with clarity though was that the car was traveling slowly as he carefully navigated it through the intersection - but he couldn't say just how slowly. 
    He also managed to recall that when his foot did reach the brake pedal he "applied the brakes and the car stopped" and - in an apparent further indication of just how slowly the vehicle was traveling - he remembered that the car did not "skid" after he had "applied the brakes".  
    While this "applied the brakes" testimony of X's was no doubt taken at face value by the jury, I found it rather curious. The reason I found it so is because I know that had I been operating that motor vehicle - at any speed - and it was a micro-second away from striking a pedestrian, I sure as heck wouldn't have "applied the brakes", rather I'd have had my foot jammed and slammed on that brake pedal as fast and hard as I could. I think most any other driver would have the same reaction. [Is it just me or do the words "applied the brakes" have a certain, casual everything-is-under-control-out-for-a-Sunday-drive kind of ring to it? I wonder what - or who - prompted Mr. X to use such wording?] 
    And why was it, I wonder, that X was still creeping along at the point of impact - that being, according to Mr. Lee, somewhere "considerably" beyond the crosswalk line - where most any other driver in the world would have been accelerating? Odd, isn't it?

 


BLACK HOLES : According to Mr. X and his friend Mr. P, the intersection was a
virtual black hole. [9] 
    Conversely, X also testified about the great amount of glare at the accident scene (doesn't it take a lot of light to produce a lot of glare?). 
    In court each side spent a seemingly interminable amount of time going over all of this light/darkness/glare business. All of the various light sources in the area were pinpointed, their relative brightness noted. There was also an equally drawn out accounting of the areas of darkness. 
    If they'd only asked me I could have saved a lot of time by informing everyone that at the point Karen was struck the artificial light was sufficient to produce a shadow of anyone standing there. That's not to say it was brightly lit, but if you were looking, you definitely could see. [10] I know that from the practical experience of having driven through the intersection a couple of thousand of times, in all types of weather and lighting conditions, and I have as yet to strike a pedestrian or anything else. 
    As far as glare being a legitimate factor in X's failure to see the victim - which was something that Mr. Lee seemed to be strongly hinting at - I'd always thought it was a driver's responsibility to adjust his or her speed to road conditions, especially in regard to any visual impairments that might be present - including glare.

 


IDLE TALK? : An interesting conversation, which you won't find in any testimony, took place in the ambulance between Karen and the police officer at the scene. It went like this:

    Officer: "Where were you when you were struck?"
    Karen:  "In the crosswalk".

Fig. 11a. Two pages of the accident  report. A must read. Click to view.

  Officer: "Yeah, that's what he said, too." [The officer was referring to X.]

    When interviewed several months later the officer could not recall such a conversation and he had no notes on it. Maybe he hadn't noted it because he'd already checked the Crossing In Crosswalk At Intersection square on the "Pedestrians Involved" section of the police report, thereby thinking the issue resolved. [Note: I found the text portion of this accident report to be so interesting that it appears twice in the website. A must read, see Fig. 11a]
    Or it could be that Mr. X never admitted to such a thing. Maybe the police officer never made such a statement. Perhaps Karen was having auditory hallucinations or just following her penchant for being "generally and specifically" a "liar".

 


PINOCCHIO? : One subtle question that should be asked is why was Karen - if Chevron were correct in portraying her as a scheming, gold digging liar - uncertain in answering basic questions important to her case?
    Wouldn't a scheming liar likely say something like, "Yep, I was well into and traveling smack dab down the centerline of that crosswalk when - BANG! - that reckless maniac smashed into me!"? Wouldn't a gold digging liar do that? It certainly wouldn't be difficult to remember and stick to such a story. Why even bother with all that aforementioned bogus dot "evidence"?
    The reason Karen lacked such simple, ready answers was because she was trying to tell the truth as best she could remember it. You'd think such a unique and refreshing approach to the personal injury law business would have been appreciated by the jury, but it quite obviously wasn't. How very sad. [11]  

 

 

IT'S SHOW TIME!

 


EXPERTS ANYONE? : In the realm of personal injury law business, as with other branches of law, there exist people who are paid money to give testimony about this, that and most everything else. They are referred to as "expert witnesses" in court and "hired guns" - or things worse - outside of it. 
    Each side usually has it's own set of "expert" witnesses.
    In this case, the "experts" were gathered from the fields of accounting, economics, vocational rehabilitation, orthopedics - and a couple of others that I can't recall.
    One by one, these "experts" took the witness stand and talked.
    Some talked about income lost and some about income to be found. Others talked about pain and injury. Some could even foretell (falsely) Karen's future by conjuring up what her new occupation would be - but wasn't.
    While I really couldn't accuse any of these "experts" of out and out lying - or maybe I could - I found their testimony to be, by varying degrees, contradictory and misleading, with many matters being either exaggerated or minimized, and all of this dependent, of course, upon which side a particular "expert" was working for. 
    But it should be remembered that while these "experts" certainly can, and often do, disagree with one another, there's one thing they never disagree on - no matter which side they represent - and that is their fee: they are mostly all very well paid. [12]
    


ONE OLD PRO : One of Chevron's "expert" witnesses really outdid himself. This individual, an orthopedic surgeon, testified that Karen's knee injury was "minor" - in a triage situation, that is. He also said it was nothing more than a mere "soccer injury" - while at the same time conceding that she'd probably need an artificial knee at some point in the future.
    In a letter I'd written to Chevron soon after the verdict was handed down, I referred to this "expert's" soccer game analogy like this: 


"Soccer game? I suppose that's possible if one team is made of a ton of steel, aluminum and plastic, traveling at maybe twenty miles an hour and the other team is made up of a human being traveling at about two miles an hour. When these teams collide the human being is invariably a loser. To make matters more difficult for the human is when, after this collision, they find themselves being propelled many feet through the air, backward in an arc, to land at a high velocity on a playing field of asphalt. All without protective gear. Rough game."

     By the way, the professional who delivered this "expert" testimony about "minor" injury received almost four thousand dollars for his few hours of effort. This, I truly believe, is about the right price for such a top-flight and well-practiced member of that very old profession.


SAY WHAT? : Karen certainly didn't find her injuries minor. One moment she was a healthy, active person on her way to work and the next she was lying on the pavement immobilized and in great pain. Many hours later, after surgery, she found herself waking up sick from anesthesia, puking her guts out. This was the beginning of a long, rough journey. [It should be noted here that Mr. Lee pointed out to the jury that after this surgery Karen's leg wasn't put in a plaster cast, which furthered, according to him, the contention that the knee injury was really after all "minor". The actual reason the leg wasn't put in a cast was that the knee joint needed a certain flexibility to heal properly. If the healing  process had allowed for the use of a cast it would have protected the knee from a multitude of minor shocks that each produced major pain.]  

 

Fig. 11b. Connecting the dots. Click to view.

 

 At the beginning of this journey Karen's world mostly existed of slow, sometimes shaky and always painful movement with a walker between her bed and a high-backed wooden chair some ten feet away. To break up this routine there were side trips to a potty chair.
    When in bed, she slept very fitfully as she was literally injured from head to toe. In such a condition you can just imagine how tough it is trying to find a comfortable position for sleep or anything else. As a matter of fact, she could lie in bed in only one position...and it was, for her, always a major, painful, slow motion process getting into and out of that bed. 
    In my letter to Chevron I described her injuries like this: 

"When Karen came home from the hospital and for weeks afterward her leg was horribly swollen from the thigh down to the foot. There was on the thigh the largest bruise I think I've ever seen in my life. Some parts of the leg were red, some mottled and others ashen white. The centerpiece of this panorama was the Frankensteinesque stapled incision on the  side of her knee. Behind this incision lay a bone graft, which replaced the original bone that had been reduced to pulp by impact with the car.
    Karen's leg was, needless to say, very sensitive to the touch. Ever bump your knee? Hurts, doesn't it?" [13]
    
Later in the letter I wrote:

"I shouldn't forget mentioning the added physical injuries of a hip/buttocks area where muscle tissue was crushed upon impact with the road. Then there was the knot the size of a goose egg on the back of her head. That was there for quite a long while, but in the scope of things, I guess rather minor. Then we have the broken fibula. But that was a clean break and what's a broken leg bone? And of course there's her shoulder, the one that absorbed a lot of the impact upon touchdown...oh, I'm sorry, all this talk of pain must be boring you. It's just that I think duty calls for Chevron to pay attention to that pain. And also respect. Know what I mean? Well, do you?" 

    Chevron, unsurprisingly, didn't respond to this question or anything else contained in my letter.

Fig. 12. The "minor" knee injury. Click to view.

  After six months Karen had another operation to remove the surgical screw in her knee. At the same time, she underwent surgery on her right shoulder, the one that had impacted the pavement. This painful shoulder injury had only been exacerbated by the six months that she had relied upon a walker or crutches to get about. [One little plus from this second surgery, though, was that this time, after having had consulted with the anesthesiologist prior to the operation, she didn't vomit when coming out of the anesthesia.]
    A year and a half after the accident her leg would still redden, swell up and ache if she'd been on it for any time.
    The site of the injury remained very sensitive for years. The knee was finally replaced with an artificial knee in 2010.  
    There are a couple of extras that go along with all of this: Karen used to love to jog in hilly terrain - she had participated in and completed the Bay to Breakers Marathon in San Francisco, turning in a good time - and had also been a long time downhill and cross-country skier. The running was for exercise and the skiing for fun and now, due to the injury, she will never do either again.
    One final note on this medical business is that during the trial, Chevron's Mr. Lee, not missing a beat, alleged that prior to the accident Karen was obviously falling apart physically, so therefore it was equally obvious that - knee injury or no knee injury - she never would have been able to work until her retirement at the bridge. What this meant was that the jury should, in tallying any lost income award - drum roll, please - deduct the worth of her retirement from the award! [14] 
    All this from a lawyer representing a company that was fat and flush and turning out billion-dollar plus business-quarters. 

 

 

DEBTS

 


HASSLE : This entire pre-trial business was a big hassle. There seemed to be an endless array of things to do and places to go: depositions, interrogatories, conferences; financial, educational and medical record retrieval; examinations, evaluations and postponements; all intermixed with a year and a half's worth of daily physical therapy. [15]
    This rigmarole culminated in a trial in which Karen, the victim, ended up on the witness stand numerous times, responding to a host of questions, not the least of which were those very misdirected ones challenging the validity of her character and the straightness of her word. 
    In addition, Karen was taken on curious little side trips of testimony by Mr. Lee, who delved into such topics as menopausal and pre-menopausal conditions and her own gynecological history. Why, I asked myself, was the plaintiff on the witness stand talking about such a personal subject in open court - wasn't this trial supposed to be about somebody being rundown in an intersection?
    The only reason I have come up with thus far to explain away this bit of public gynecological voyeurism on Mr. Lee's part was that he was trying to imply to the jury that instead of euphoria causing Karen to wander-happy-zombie-like considerably-outside-of-the-marked-crosswalk, it was instead a hot flash!

 


BEWARE! THERE'S ONE BORN EVERY MINUTE : And to think of how all this low-road rubbish runs counter to Chevron Corporation's self-serving, self-projected image in television and print advertisements.
    One series of these ads shows the friendly and helpful Chevron: cute, smiling claymation cars and trucks saying cute, smiley, helpful things.
    Then there are [or rather were, see footnote 1] the serious People Do ads of the concerned, upstanding and responsible Chevron Corporation protecting the environment and helping the community by doing concerned, upstanding, responsible things.

  I'm not certain what Chevron's latest advertising campaign is built around but you can be sure it's more blather about how dear, dear Chevron Corp is out there knocking itself out to help us all. You shouldn't be fooled by any of this: People quite often Do Not.[16][16a]
    

OFF THE LOW ROAD AND INTO THE GUTTER or DO YOU REALIZE YOU'VE DAMAGED A CHEVRON VEHICLE? : This case was taken on a contingency basis by Karen's lawyer. This meant if the case were settled before going to trial, her lawyer would get thirty percent of the award, plus expenses. If the case went to trial he would then get forty percent of any award, plus expenses. [Forty percent! Almost half. Plus expenses. And all this without the lawyer having suffered so much as a paper cut. Wouldn't fifteen or twenty percent be much more appropriate? I think so.]  

  In the event that the case was lost - as it was - her lawyer would absorb all the costs. Or so we thought.
    Sometime after the trial, and before the appeals court ruling, Karen got a message from her lawyer saying that she owed seven thousand dollars in court costs. Surprise!
    Shortly after that she got another message from her lawyer saying that Chevron wanted to pay the court costs - if only she'd be good enough to drop the appeal. Well how about that? After almost three years Chevron Corporation was finally volunteering to help out. What heart. 
    Of course, being that Karen did not drop the appeal, I guess that means she still owes the seven grand. Or maybe not. In the years since she heard that she owed this debt, there has been no attempt by the courts to collect on it. This makes me think that the bill may have gotten lost in the bureaucracy - perhaps conveniently so - or that some unknown party went ahead and paid the thing. Hmm, I wonder what's up with that? Time to find out, I reckon.
    


CHISELERS : Chevron Corporation made an offer to settle the case some months before going to trial. This is standard practice in many personal injury lawsuits. Chevron offered two hundred thousand dollars. After deducting lawyer fees, medical and other bills, this would have left Karen with maybe one and a half years worth of her former salary, no job, loss of occupation, no retirement plan, a bum knee and a bad hip.
    Shortly before the trial was to start Chevron made one final offer: nothing! 

  And that non-offer presents to me what is the only real mystery of the case: what, given the evidence, gave Chevron the confidence to offer nothing? Blind, unreasoning greed? Or was there, all along, something going on here behind the scenes - something of a darker nature? I certainly don't have any proof of such a thing, there's just this gut-feeling I've had that there was something that just wasn't right about the business. 

 


WORDS : I was a firsthand and long-term witness to that accident's aftermath and I will unequivocally state that there was nothing "minor" about it.
    As I have outlined Karen was injured from head to toe and in a constant world of hurt. To go along with the physical pain and disability there was also the unpleasant reality, as previously mentioned, of having her income almost halved, causing a very real and negative change in her lifestyle.
    All of this punishment, physical or mental, minor or major, short term or long, was meted out to her for having committed the simple offense of getting up early one winter morning and heading off to work, only to suffer the double whammy of being struck by a vehicle and having that vehicle belong to Chevron Corporation.
    While time has dulled many of the events I have described here, there is within the scrapbook of my mind an indelible snapshot of Karen that I sometimes call forth: she is lying on her sickbed in this contorted fetal position - pale, weak, broken, bruised and swollen. This image is usually accompanied by one simple thought: what happened to her over those years - from accident to appeals court decision to knee replacement surgery - can in no way be considered  justice, rather I think the whole damned  process could best be described as a crime. 

 


COUGH IT UP : I believe that Chevron Corporation's extraordinarily base behavior throughout this ordeal indicates a greed that goes so far beyond the corporate norm that it should be considered pathological in nature. Such despicable conduct is certainly not something to be rewarded. 
    So this is the way I see it: Chevron Corporation owes Karen for her lost income and retirement. Every penny of it. No quibbling.
    They owe for a lot of very real long term pain and suffering. Again, no quibbling.
    And they also owe for four years - accident to appeals court decision - of absolute, sleazy, low-roader bullshit of which they are wholly responsible. [17]
    


LET'S NOT FORGET : Karen is also owed an apology for that slanderous line about her "credibility". She really is.

 


ONE LAST TRUTH : If Karen had been struck a little differently or landed a little differently, it could have just as well have been her head that was smashed as her knee. Not that such a thing occurred to or concerned the Chevron Corporation low-roaders, but it did to me.


THE END


[1] "People Do" was the name of a Chevron advertising campaign several years ago which was aimed at showing an upright, community concerned, environmentally friendly-faced Chevron Corporation. It was this "People Do" slogan that was the inspiration for the creation of the former website name of "peopledonot.com". Too bad Chevron went and dropped the People Do campaign, but I think gotjustice.com is a much better website name with my thanks to the Got Milk people for providing the inspiration. [After Chevron dropped the "People Do" ad campaign they moved on to using benign and cutesy talking claymation cars and trucks to sell their wares - which are simple and safe and, oh, so cute.] 
[1a] That power shouldn't be underestimated at any level: Chevron's Richmond refinery is the number one taxpayer and the number one employer in the perennially cash-strapped City of Richmond - of which Pt. Richmond is a part. [Chevron is also, I believe, the number one polluter.]
[2] The only testimony available from the trial, excepting for some brief bits and pieces, is that of Mr. X, the vehicle operator and his friend and co-worker, Mr. P. It costs considerable money to have testimony transcribed from the court recorder's mechanical chicken scratches into written English (or at least it did: some court recorders "mechanical chicken scratches" are now - no doubt thanks to computer technology - recorded as text on a small LCD screen next to the operator. This, I imagine, makes court transcripts more readily available and much cheaper - or at least it should). Karen's lawyer paid to have these two testimonies transcribed for inclusion in the motion for a new trial. Why P's testimony was selected for this treatment I don't know because, having arrived at the scene sometime after the accident, he really didn't have much, if anything, to add to the already available evidence. 
[2a]  The accident scene photos I possessed were not the best quality copies and I was interested in obtaining the original 35mm film negatives from the police department. Nothing can produce a quality print better than an original film negative and I was especially interested in enlarging and printing the car/skid mark photo and possibly submitting it for some type of scientific analysis (Fig. 2). On three different occasions I tried  to get the negatives from the police department. On my first attempt I was told that the case was on appeal and therefore the negatives where still evidence and not available for release. Sometime after the appeals court decision, I again tried to get the negatives and was told that there were photos of another accident scene on the film roll and the negatives couldn’t be released until that case was settled. Months later I tried yet again to get the negatives only to be told that it was an old case and the negatives had been discarded! Marvelous.
[2b] The speed of most vehicles intersecting the mid-point in the crosswalk, coming from the direction that the Chevron vehicle did, is usually somewhere between 12 to 16 mph (sometimes faster). These speeds would apply to those drivers, like Mr. X, who are familiar with the intersection; those unfamiliar with the intersection - it's layout can and does confuse people - often make the turn at slower speeds; or crazily, some cars in the far right lane attempt left turns onto Tewksbury Avenue thinking they're entering a three or four lane street, which they are most definitely not - to keep traveling on such a course would run a vehicle into the corner utility pole (i.e. "The Mother of All Telephone Poles").   
[2c] One other thing of note regarding this scale diagram is that while it's accurate in it's measurements, I believe there may be an error in its depiction of the projected route of the Chevron vehicle as it makes that left-hand turn towards the crosswalk. In reality, most drivers take this turn more tightly, their drivers' side tires nearing or rolling over the area where the double no passing traffic lines meet the single white crosswalk line. This can be evidenced by a photo taken five years after the accident showing the almost the complete obliteration of those lines - and all of the dot/reflectors - from that particular area (see photo). [These lines have since been repainted.] I believe that this "toward-the-center away-from-the-curb" was the path of the Chevron vehicle as it entered the crosswalk area that morning, and that in the panic stop the entire vehicle, in addition to its other movements, slid sideways a foot or so, away from those traffic lines. The relevance of all this is that it would have placed the vehicle and the plaintiff even further from the curb at impact. Or is that too nitpicking? 
[3] One wag said to me that he was surprised that Chevron hadn't tried to have Karen arrested for leaving the scene of an accident.
[3a] Mr. P would incorrectly testify that the plaintiff was lying 8 to 10 feet in front of the car.
[3b]  "...accounts of her position were difficult to reconcile with the evidence of where she ended up." This begs the question of just where did the good judges think she got hit to begin with to wind up where she did? Hello? 
[3c] I hate to knock such a basic part of the American legal system as the much vaunted and sanctified jury system, but when it comes to selecting jurors things just aren’t what they used to be. Regrettably, America has for many years now had one of the highest rates of television viewership in the world, while at the same time having fewer and fewer book and/or newspaper readers. About one third of today's (and yesterday's) high school graduates are functionally illiterate, with probably another third being marginal or mediocre learners at best. It is from such stock, at least in part, that juries are - and, frighteningly, will continue to be - selected; it is, in short, not your grandfather's jury. Just consider that in a recent poll 51% of Americans thought that human beings had cohabitated the Earth with dinosaurs! 12% of the American public think that Noah, the Biblical ark builder, was married to the fifteenth century French heroine Joan of Arc! One in five believes that the Sun rotates around the Earth - or so said the National Science Foundation. Ninety some percent of high school graduates going on to college require remedial education in one or more subjects and only about one third of incoming freshmen are proficient in English (but that is probably explainable when you consider that sixty-some percent of high school students admit to cheating on tests). Further, consider that forty-some percent of Americans believed - and, as of 2007, continued to believe - that there were Iraqis among the hijacker/terrorists onboard the aircraft involved in the 9/11 attacks - this years after the event and contrary to all fact, official reports and extensive media coverage stating otherwise. As of September 2007, thirty-some percent of Americans also believed that Saddam Hussein was involved in the 9/11 attacks, this, again, after extensive media coverage and governmental reports stating otherwise. To more fully appreciate America's continuing slide into dumbness, there's a book that details it: Susan Jacoby’s The Age of American Unreason.

  Whatever the reasons, I believe that it is more than evident that the jury in the Got Justice? case did lack the basic cognitive/critical/scientific skills (things often acquired through reading and courses of study) required - coupled with an apparent overall lack of discernment in general, i.e. common sense - to answer some of the readily answerable questions that were posed regarding the legitimacy of Mr. Lee's "wandered considerably" defense. I also think another problem with this jury was in that they were attempting a cleverness that they didn't need - nor possess (too many television lawyer shows? Too many CSI reruns?). Maybe they would have done fine with a case involving a simple homicide or overdue parking tickets. Maybe. [Note: I'm aware of the so-called CSI effect, which has been defined thus: "The "CSI Effect" is a courtroom phenomenon whereby jurors educated by TV crime dramas now have unrealistic expectations of forensic science in reality, where it counts." (From www.the-csi-effect.com.) In reality, in the Got Justice? case, forensic science does count, not to mention - one more time - simple, basic common sense.] 

  One other factor which I suspect hindered the jurors decision making abilities was in having a very misdirected sympathy toward the defendant. 

  I should add here that one woman, during the jury selection process, insisted that her grasp of English was too poor to allow her to understand the case - no matter, she was selected. 

  All of this has led me to believe that the current jury selection process is in need of a serious overhaul, and that's not to say that I'm opposed to a jury system, for I'm not, it's just that I'm an advocate of smart juries - along with "smart" trials.    

  So where to begin? Start by implementing some common sense steps to make the entire process more honest, more functional, more open and less costly. 
    One such step that would go a long way toward achieving such goals, as I've said before, would involve utilizing modern scientific methods, where applicable and possible, to answer the important questions relevant to a given case - like in Got Justice? 

  In Got Justice?, there was (and is) only one really important question and that question was where was the pedestrian when hit: was she in/near the crosswalk at impact or had she "wandered considerably" outside of it? It is my strong belief that there is enough evidence available in this case that impartial scientific analysis (no partial, paid, malleable and conflicting "expert" witnesses need apply) could be relied upon to provide that answer.  
  
So why was it - and is it - in this day and age of such stunning scientific advancement - forensic and otherwise - that this important question [and other important questions in myriad other trials] was left up to twelve people on a jury who, given the Got Justice? outcome, quite likely wouldn't have been capable of defining mechanical physics, much less understanding its science? 

  Wouldn't it be better to leave questions concerning mass and velocity, action and reaction, up to scientifically trained team of professionals using modern scientific techniques to impartially arrive at a consensus of just what did and did not occur in that accident? Today, with the Internet, such a thing should be quite doable, with a multitude of people and knowledge no further away than a keyboard. 

  To a lawyer in Mr. Lee's shoes, in a case like the Got Justice? one, having to abide by a decision supplied by competent, impartial people utilizing cold, analytical science to arrive at that decision is a most unpleasant thought. Such a thing would deprive the personal injury lawyer the opportunity to distort and confuse and bastardize truth before scientifically ignorant jury members, and that clearly wouldn't be good for business (although a real godsend for actual justice). Having the "big question" already answered for them by a random group of scientifically trained professionals would thereby leave the jury to concentrate on other areas of the case where, hopefully, their decisions would be based on something other than guess, assumption, conflicting paid "experts" and lawyerly mumbo-jumbo. Hopefully. 

  I think the greatest beneficiary of this updating of trial procedure would be - along with simple  truth and justice - the American people, for such change would no doubt translate into a marked drop in the number of - and need for - lawsuits, trials, paid "experts"... and lawyers (oh my!), all resulting in a kinder, gentler and less sue-happy nation. 

 Of course, for many of the  purported seventy percent of the world's lawyers concentrated here in the United States, there can never be enough lawsuits or trials or threats of lawsuits. It's a matter of continuing employment after all, with that employment hopefully being of the lucrative variety. It is an apple cart that the trial lawyers don't want disturbed, which helps to explain why the Trial Lawyers Association is one of the most powerful lobbies in Washington. 

 But I digress. 
[4] Karen and I enquired of her lawyer about the practicality of hiring an accident reconstructionist to produce a computer animation of the accident for the jury's perusal. After a moment's hesitation, he said it was unnecessary. Wrong answer - but then again, in considering this particular jury, I doubt that if Martin Scorsese had filmed an accurate re-creation of the accident in CinemaScope, Technicolor and 3-D that it would have helped.
[4a] Regarding these "fine line" bruises, I highly regret not photographing them when they were visible for such photographic evidence would have immediately destroyed Mr. Lee's "struck by the side of the car" defense. Just as an accident scene photo of the car's grill area would have rendered useless the "no dent at the time of the accident" defense. [Note to police departments everywhere: when photographing an accident scene involving a vehicle/pedestrian collision, always, but always, photograph the area of the vehicle where the impact occurred. It should be standard operating procedure, yes?]
[5] This 6:03 a.m. is properly the bus departure time. I use the word "arrive" (or "arrival") because everyone else did. Incidentally, in bus driver etiquette, it is considered to be very bad form for one driver to depart a stop early. When that happens the driver of the next bus may find his or her bus overloaded with irritated people who missed the first bus because of its early departure and who now find themselves late for work or appointments. I mention this to counter Mr. Lee's tendency to try to "hurry up" certain events - while trying to "slow down" others. Note: Given advancing computer and GPS technologies, I believe many bus departure times are now monitored, pretty much precluding early bus departures from a given stop. 
[5a] Upon close examination of Mr. Lee's timeline of events, it will be discovered that his timeline makes no sense - it really doesn't - but it apparently proved to be irresistible "fact" to the dozen members of what I sometimes refer to as "The Jury from Nitwit" (or, when I'm feeling kindly, "The Fencepost Twelve"). [I would have loved to have been a fly on the wall in that jury room so as to hear what kind of "reasoning" these people used to make their decision in their rather hasty ninety minute deliberation. Specifically, I'd want to know - and I know I'm not alone in this - just what part or parts of Mr. Lee's witless presentation that they found so thoroughly convincing?]  
[6]
In a previous deposition or statement Karen had said she wasn't sure if she saw one or two dots. Mr. Lee chose to use the one dot version.
[6a] This dot business is a little confusing for there are two sets of dotted  double lines abutting the crosswalk line [See Figures 6a, 10]. Viewed from above, these double lines look like the center and left tines of a pitchfork resting up against the white crosswalk line. The twelve-foot "dead zone" (i.e. not a pedestrian island) created between these lines is there to allow a bus pulling out of the stop area to make a right-hand turn without swinging the drivers side of the bus into the oncoming traffic lane. 
[7]
1. Unanimous verdicts carry additional weight in the appeals process, or so I've heard. I think this case aptly demonstrates why they shouldn't. As a matter of fact, if I were in charge I'd see to it that a large sign be nailed to the wall of every appeals court in the land. It would read: "Unanimous verdict? Think O.J." (That is in reference to the O.J. Simpson murder trial, not his more recent trial) 2. Heavy caseloads or not, a legitimate question to be asked here is how could all three judges make the same glaring mistake regarding the crucial issue of the plaintiff's actual position when entering the crosswalk? Aren't these people supposed to be the safety net of justice, with each providing independent analysis of the case before them? Three heads are better than one, yes? That's the idea behind this, right? So what went wrong here? The way I figure it, one judge (or perhaps a law clerk?) completely confused the very basic evidence as to where the curb actually was [see fig.8a] - perhaps some type of dyslexia or an inability to read a simple traffic diagram - and that judge, so confused, went ahead and informed the other two judges of this erroneous finding, which they, in turn, unquestioningly accepted and rubberstamped ("Look here at the diagram....it's obvious. She'd just stepped off the curb here without looking and bang-o, the car hit her. Open and shut case. The verdict stands. Next!"). 3. The final bungle of this case - which I find inexcusable - occurred shortly after the appeals court released its decision: when Karen's lawyer discovered this all-important error regarding her position vis-à-vis the actual curb, he took this information to another judge on the appeals court for some type of emergency review. That judge chose to ignore this information and let the ruling stand! Why? Anyone
[7a] Being at least as familiar with the evidence as the jury should have been, I sat in court listening to Mr. Lee’s summation to that jury and in all honesty wondered if he realized that he was making a complete ass of himself: his arguments were - and remain - demonstrable gibberish. Little did I realize that in such complacent thinking I was the ass for ignoring one of the cardinal rules of the personal injury business: assume nothing.
[8] Karen swore that it wasn't raining or misting at the time of the accident for she didn't have the hood of her jacket up. In such weather she always does so to keep her hair and eyeglasses dry. I was on my way to the accident scene within five minutes of its occurrence, and while there was dampness to the air, there certainly wasn't any mist - much less rain.
[8a] I highly recommend reading Mr. Lee’s motion to deny a new trial in its entirety. It does give new meaning to the words "nonsense" and “double-talk”. Pay particular attention to the parts concerning the reflective dots and the "undisputed" location of the car, for it is there that Mr. Lee’s efforts to confuse (i.e. "blabberize") reach their zenith. Read it and see if I'm not right.
[9] Several days after the accident, taking my own turn at playing Perry Mason, I went to the intersection and videotaped it at about the same time in the morning that the accident had occurred and under similarly wet conditions. Mr. Lee very much wanted this tape entered into evidence for it showed a confusing scene of very dark streets, contrasted by bright, blinding lights. The poor quality of the video can be blamed on the efforts of an amateur operating a bulky and ancient VHS video camera. There were, however, professionally taken color still photos of the intersection, taken at night, which  much more accurately depicted the actual lighting conditions. These photos, taken from the area of the stop bar looking toward the crosswalk area, clearly revealed a stand-in wearing Karen's purple raincoat standing in the crosswalk. Mr. Lee most definitely didn't want those photos entered into evidence. Neither the video nor still pictures were allowed, which makes me want to ask why not determine what's okay and what's not okay in a trial before wasting peoples' time and money participating in useless exercises? More function, less form, more standardization and certainly more science where applicable.   
[10] More lights - and signs - have been added to the intersection since the accident. As far as understanding this intersection in general, the smart move would have been at the beginning of the trial - and I think this should be a mandatory requirement in all such cases - is to have loaded the judge and jury onto a bus and taken them to see the intersection in person. Things become so much clearer when viewed in person, versus looking at diagrams, which lack depth, and photographs, which can distort distance. Never is that more true than in this case for when you stand near the crosswalk and watch the speed and angle of cars intersecting the crosswalk as the Chevron vehicle must have, it becomes even more evident just what a bunch of hokum Mr. Lee's "wandered considerably" defense actually is. Such a round trip bus journey from the courthouse could have been accomplished (including a one hour lunch break at any number of fine Point Richmond eateries - sit down or take out) in under three hours. 

  I have little doubt that one such viewing of the actual accident site, if only briefly, would've been worth far, far more than all those many boring hours in the courtroom - or was it days? - that the lawyers spent describing with their diagrams, photos - and seemingly endless words - how the intersection really was. [Nonsense! Lawyers, be still! Everyone get on the bus, we're taking a little day trip to the accident scene. Fresh air! Reality! Just the thing.] Oh, and in the event that a case like this goes to an appeals court, I think it very important - in an effort to avoid future "confusions" - that there also be a mandatory requirement for the appeals judges to inspect the accident scene in person. If the three judges had done so in this case it's very likely that they wouldn't have gotten their "facts" so ass-backwards. 
[11]  Funny thing about Karen being so "evasive" is the way Mr. Lee relied upon her statements a number of times in his motion to deny a new trial. In answer to one of his questions she responded with the following: "Right. Normally that intersection is fairly dark. Because we have frequent fog, it's usually wet..." That's evasive?
[12] Speaking of business, the United States, with its purported seventy percent of the world's lawyers, must certainly be the leading producer of "expert" witnesses. As to just what their numbers actually are I can't be certain, but considering that expert witnessing is such a lucrative business, I would imagine it must be quite a large figure. And that's not to say that some "expert" witnesses can't be useful (and honest), it's just that so much of what they do say is "bought and paid for" predictable. I guess the best way to describe the "expert" witness business would be as an often lucrative sub-racket within the already lucrative personal injury racket.
[13] The main part of this knee injury was a crushed tibia plateau. The crushed part of the bone was removed and replaced with bone from a cadaver. Needless to say, the bones making up the human knee are a precise matched set from before birth and surgical replacement of such bone is an iffy proposition at best, with arthritis likely setting in and, later on, the necessity of artificial knee replacement surgery.
[14] Among this "falling apart" evidence were voluminous pages of visits to chiropractors. Karen had been going to them regularly for years to get "adjustments" to her back, which she had injured on the job when she had jumped from a utility vehicle that had lost its brakes on a downhill grade. These chiropractic adjustments made her feel good. To Chevron Corp's Mr. Lee, this was all more dark and devious "proof". Nonsense.
[15] After the final appeals court ruling denying a new trial we went to her at-that-point ex-lawyer's office to pick up all of the papers, photos and diagrams relating to the case. This pile - a goodly portion of it courtesy of the aforementioned "expert" witnesses - when combined with Karen's case paperwork at home - stacked up to almost five feet in height and weighed I don't know what! While seemingly useless (and no doubt mostly unread), this mass of legal litter did provide her with what I believe was her only real satisfaction in the entire four-year plus ordeal: watching the entire mess get shredded at a commercial facility. Of course, if you just wanted to cover what was actually relevant to the case, you'd wind up with a stack of paper, diagrams and photos maybe a quarter of an inch in height, but why ruin the fun - or the business? 
[16]  Chevron People Do all kinds of things, like having supporting and relying upon brutal, homicide prone dictatorships in countries such as oil rich Nigeria (can you say, "Mobile Police"?). But that's another Chevron story, isn't it?   
[16a] Due to its proximity to the Chevron refinery, Pt. Richmond is an oil company town, with many of its inhabitants being current or former employees of the petroleum industry. Among these insiders were a couple of veterans who warned Karen and me, long before the trial - and off to the side - that Chevron Corp had, within the industry, the reputation of being the sleaziest and cheapest of the major oil companies and was not to be trusted. True story.
 [17] As I remember from the trial, Chevron's "expert" witnesses had figured this lost income part of the award to be six hundred thousand dollars. Karen's side estimated it at about nine hundred thousand. Being how nasty Chevron has been, I've taken the liberty of rounding that figure off to one million dollars. I have also determined that the amount due for "pain and suffering" is also one million dollars. As to the amount of money owed for the new award category of "low-roader bullshit " - yep, you guessed it - one million dollars. I think it also fair that Chevron make up for the shortfall created when, after the accident, a tax went into effect on the formerly tax-free pain and suffering portions of awards. [Note: I have taken the additional liberty of placing the "low-roader bullshit" award in with the "pain & suffering" award - where it very much belongs - making it also tax free.] And if all of that isn't enough there's the matter of what is several years worth of interest on the debt. This interest, following in the best traditions of Corporate America, must be paid in full. As to the rate of that interest, I think it would be only fair to peg it at the same rate Chevron Corporation would charge one of its credit card customers for the same debt over the same multi-year span. Or is that nearly enough?


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