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Accepting Responsibility: The Cautionary Tale of Washington v. Top Auto Express, Inc.

Author: Kiley McCarthy Connolly

Guest Editor: Ashley Kaye

January 21, 2021 9:00am

Case Analysis

On July 24, 2018, heavy rain caused traffic to slow down on the I-10 around 5 p.m. in Leon County, Florida.[1]  A truck jackknifed, causing a pileup involving 45 vehicles and more than 18 accidents.[2]  One of the motorists injured was Duane Washington, 42 years old, who was riding his motorcycle.

Washington, a former career Army sergeant, attempted to avoid the collision by swerving into a stopped truck in the emergency lane with no lights on.  Washington was then launched from his motorcycle into the median.  His injuries included permanent bladder and bowel incontinence, loss of sexual function with paralysis, and atrophy of his right leg requiring an arm crutch to walk.

Washington filed a complaint for damages naming various entities involved in the accident, including Top Auto Express, Inc. (“Top Auto”).  According to plaintiff’s fourth amended complaint, Top Auto negligently operated a tractor-trailer, which caused it to sideswipe and strike multiple vehicles.  At trial in the fall of 2020, the only defendant present was Top Auto.

On October 2, 2020, a jury awarded a nuclear verdict of $411,726,608.42 to Washington and his three sons.  The trial was the first virtual trial held in Florida’s Second Circuit Court.[3]

Ben Crump and Robert Cox of Ben Crump Law represented Washington.  Crump is a civil rights attorney, notably representing the families of Breonna Taylor, George Floyd, and Trayvon Martin.[4]  Crump also represents parties in a pending settlement in Flint, Michigan for the city’s harmful levels of lead in its drinking water.[5]

According to the Florida Department of State, Top Auto was a single-tractor company based in Pembroke Pines, Florida.  The Department of State lists Top Auto as inactive.  Top Auto had legal counsel until a few months before trial.[6]  The court granted the defense counsel for Top Auto a withdrawal from the case in early July after defense cited “irreconcilable differences, including issues related to client cooperation.”[7]  Top Auto proceeded to trial unrepresented.[8]

What the Defense Could Have Done Differently

Accept Responsibility

It is imperative to accept responsibility, in some way, in every jury trial.[9]  An angry jury is at the heart of every nuclear verdict.[10]  The defense must show defendant genuinely cares about plaintiff.[11]  When accepting responsibility, defense exhibits their care for plaintiff, which provides the defense an opportunity to defuse the jury’s anger.[12]

Accepting responsibility can be a terrifying concept for most trial lawyers.  However, accepting responsibility does not necessarily equate to accepting liability, depending upon case-specific facts.[13]  Trial lawyer and Tyson & Mendes Managing Partner Bob Tyson lays out numerous examples in his book, Nuclear Verdicts: Defending Justice for All, a playbook for the defense that includes scenarios ranging from accepting 100% liability to accepting no liability.[14]  In all scenarios, the bottom line is the same: the defense accepts responsibility to the appropriate extent, demonstrates the defense is reasonable, defuses juror anger, and shifts the focus to others’ comparative fault.[15]

In Washington v. Top Auto, plaintiff’s counsel presented evidence and testimony reflecting Washington’s reputation.  Plaintiff’s counsel stated, “Sergeant Washington was admired and respected by everybody, and would always be there to help people when they needed help . . . but Sergeant Washington died on the side of the road that day [in] 2018 . . . and  [Washington’s sons] had to watch their father, who was their superhero, broken down.”[16]  Even though Washington was alive and present in the virtual courtroom, any human being would find that statement emotionally moving.  This emotion can quickly turn into anger when the other party does not accept responsibility.

The defense, in this matter, did not participate in the trial.  The defense did not call or question any witnesses, submit any exhibits for the jury’s evaluation, or present an opening or closing argument on behalf of defendant.[17]  The lack of defense representation or any participation in the trial presumably further angered the jury.  One can only imagine how infuriating it must have been for jurors to take time away from their family and employment to fulfil their civic duty, and only 50% of the players greeted them.

A proper defense counsel would demonstrate to the jury Top Auto’s compassion for the harm plaintiff suffered and accept responsibility, in some capacity, to defuse the anger.  When the defense defuses the jury’s anger, it demonstrates reasonableness and may shift the jury’s focus to other parties’ comparative fault.  For instance, here there were various remaining defendants involved in this lawsuit whose trials were set for April and August 2021.[18]  The defense could have highlighted the other parties’ culpability and their failure to accept responsibility.

Takeaway

The defense could have taken countless avenues in the case, but the first step is accepting responsibility to defuse the jury’s anger.  Only then is there is an opportunity to speak to the jury reasonably and perhaps avoid a nuclear verdict.

 

[1] Karen Heller, Ben Crump has become the go-to attorney for racial justice, Washington Post, https://www.washingtonpost.com/lifestyle/style/ben-crump-attorney-floyd/2020/06/18/3e1007ba-af09-11ea-856d-5054296735e5_story.html

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Fla. Jury Awards $412 M in Zoom Trial Over Highway Crash, Law 360, https://www.law360.com/articles/1317557/fla-jury-awards-412m-in-zoom-trial-over-highway-crash

[7] Id

[8] Washington v. Top Auto Express, Inc., JVR No. 2011090033

[9] Robert F. Tyson, Jr., Nuclear Verdicts: Defending Justice for All (2020).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Reychel Lean, Florida Lawyers Obtain $411 Million Jury Verdict on Zoom, Daily Business Review, https://www.law.com/dailybusinessreview/2020/10/07/florida-lawyers-obtain-a-411-million-jury-verdict-on-zoom/?slreturn=20201129143959

[17] Fla. Jury Awards $412 M in Zoom Trial Over Highway Crash, Law 360, https://www.law360.com/articles/1317557/fla-jury-awards-412m-in-zoom-trial-over-highway-crash

[18] Id.

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