Defendants don’t usually stipulate to liability, and it goes against our nature as defense counsel. But maybe we should consider it more often, especially when it’s likely we’ll only be able to tag a plaintiff with a small percentage of negligence. There is a big difference between a jury determining damages after hearing four days of incriminating evidence against the defendant, and merely hearing about a plaintiff’s damages without that evidence.
We just had a nasty trucking accident case down in Corpus Christi, Texas where the driver of our eighteen-wheeler decided to attempt a U-turn across four lanes of highway.
During rush hour.
In the fog.
Five cars plowed into the rig. Four of the plaintiffs settled, but we were ready to go to trial on the fifth. Opposing counsel was a very well-known, very capable trial attorney.
We had nothing on the plaintiff. She was an attractive young lady, about nineteen years old. She had no significant prior injuries or medical problems. After the accident she had significant neck injuries, had undergone a neck surgery, was looking at another neck surgery, and suffered a very noticeable scar on her neck. We might have been able to pin 5% contrib on her, on a good day. But the liability facts against us were very bad, and our driver made a bad witness, as drivers often do.
Interestingly - and luckily - the plaintiff‘s attorney had failed or forgotten to plead gross negligence and didn’t realize his mistake until pleading deadlines had passed. In Texas the case law is pretty clear that if gross negligence is not pleaded, and if the defendant stipulates to the negligence of the employee and to course and scope of employment, the plaintiff cannot proceed with allegations of independent acts of negligence against the defendant. This knocks out the plaintiff’s claims of negligent hiring, negligent training, negligent retention, and negligent entrustment - in other words, all of the really inflamatory evidence.
So we stipulated to liability and to course and scope of employment. It took the fire out the case. We filed motions in limine and strong supporting briefs to exclude all evidence of the defendant’s negligence. We filed motions to strike expert witnesses. We limited the case to what would be at most a half-day trial on damages.
The case settled for what we consider a bargain, considering the venue, the talent of the opposition, and the bad liability facts.
Electronic filing, or e-filing, is the process by which you can file court documents electronically over the internet rather than filing traditional paper documents. In order to e-file, you have to convert your documents to electronic files, either by scanning them to PDF format or by “printing” them to PDF format (e.g., composing a document in Microsoft Word and converting the document to PDF format, as opposed to printing it out and scanning it).