In Bob Tyson’s book titled Nuclear Verdicts™: Defending Justice for All, Bob Tyson challenges the defense bar to “[u]se your fouls.”i A defense attorney who prefers to play by the books may question what an “honest foul” is and when to make such fouls. This article evaluates a May 2021 California Appellate decision illustrating how California courts allowed “honest fouls” in trial. Ultimately, these honest fouls allowed a jury to evaluate facts beyond plaintiff’s $16 million demand and the jury ultimately found plaintiff 45% responsible, reducing the total award from $2.9 million to $1.6 million.
Most defense counsel are apprehensive about pursuing an objectionable line of questioning. Moreover, most defense counsel do not encourage their experts to push the evidentiary bounds of their opinions. In his book, Mr. Tyson recognizes plaintiffs’ bar is innovative, aggressive, and willing to “experiment [and] push the envelope in trial.”ii After all, plaintiffs’ bar continues to push boundaries around rules of evidence to further their themes (even attempting to advance the illegal reptile theory). To challenge plaintiffs’ bar and get justice for all, Mr. Tyson encourages the defense bar to level the playing field and use their “honest fouls” to get to the truth. It is important to note an “honest foul” is different from “intentional fouls” or “flagrant fouls” which could result in sanctions or a mistrial.iii
Background of the Spinner Case
In Spinner v. Felseriv, plaintiff and defendant collided in a San Francisco Bay Area intersection. The facts are similar to many car accident cases. Defendant stopped at a stop sign, checked both directions, then “inched” into the intersection. Meanwhile, plaintiff testified he was driving 25 mph (or less) as he entered the intersection and ran into defendant. Plaintiff’s counsel asked the jury to award both plaintiffs in the case $16 million in total damages (for traumatic brain injury and a home care attendant).
In part, the defense argued plaintiff was contributorily responsible for the accident. Accordingly, the defense accident reconstructionist opined plaintiff was speeding before the accident. As discussed above, the jury awarded a plaintiffs’ verdict for $2,947,180 in economic and non-economic damages. Additionally, the jury also found plaintiff was 45% responsible for the accident. Therefore, after apportionment, the recovery would total $1,620,949.
Plaintiffs appealed because they felt the defense accident reconstructionist opinions were improper and should not have been admitted. Essentially, plaintiffs challenged the defense team using their “honest fouls” on the basis that:
1. the defense accident reconstructionist changed his presentation and opinions after his deposition testimony;
2. the defense accident reconstruction expert relied on speculative evidence to support his opinions; and
3. defense counsel used improper graphics in their closing argument to show plaintiff was speeding. The Appellate Court upheld the trial court’s admission of the expert’s opinion testimony and demonstrative exhibits.
The Court Allowed Defense Expert to Revise Calculations Because the Modifications were Insignificant
Defense counsel is often reluctant to let their experts do any work after their deposition because they do not want to jeopardize their opinions or have the experts challenged during cross-examation. In Spinner, the defense accident reconstructionist expert “made a number of adjustments to his models between the time of his deposition and trial. . . On cross examination, the expert opined that prior to the adjustment, the model was ‘really, really good’ and the points of collision and rest were off by only one-half or three-quarters of a foot. The adjustments allowed for greater fidelity to the evidence but did not have a significant effect on the speed of either vehicle.”
The court determined the expert’s revisions were “refinements, not the creation of an entirely new model.” The court went further to state “from an engineering perspective, the changes were insignificant.” The defense counsel in Spinner defended its expert’s refined and polished product for trial, including revising calculations. The court allowed the revised calculations and plaintiffs had the opportunity to cross-examine the expert on these changes.
An Expert’s Opinion Should Be Challenged During Cross-Examination
Plaintiffs also objected on grounds the defense accident reconstruction expert relied on speculative evidence to establish his opinions regarding plaintiff’s speed. While the appellate court agreed there “was room to challenge the expert’s various assumptions and his conclusions, the trial court did not abuse its discretion in admitting his testimony.”
The appellate court proceeded to deliver its readers an extensive and a well-thought-out legal opinion regarding how an accident reconstructionist creates valid expert opinions. Here the court held “the [expert’s] assumptions were based on observable facts support by the evidence and the expert’s knowledge and experience.” Thus, “the weight to which the expert’s opinions were entitled was properly challenged by cross-examination but the lack of certainty does not justify the exclusion of the opinion in its entirety.”
If a Party Fails to Timely Object to Objectionable Evidence, it is Fair for the Jury to be Shown the Evidence Again
Finally, the most contentious issue in the appellate court was the introduction of the defense accident reconstruction graphics which showed the accident was not possible if plaintiff was driving the speed limit. Defendant’s expert used these graphics as demonstratives in his testimony and plaintiffs failed to object to these graphics during the expert’s testimony. The defense counsel used these demonstratives in closing arguments at which time plaintiffs did object.
The appellate court found the accident reconstructionist’s graphics depicting this hypothetical as “masquerading as software-informed expertise . . . pure showmanship, [and] lacking any foundation of trial evidence.” The court and the appellate court agreed while the graphics were objectionable, the jury already viewed these graphics when the expert testified so there was no harm in re-showing the representations in closing arguments. In other words, the defense drew the foul, but plaintiffs let it slide. Since plaintiff’s counsel failed to object when the image was first shown to the jury, it was fair for the defense counsel to use the same graphics in closing arguments.
This case was a great illustration of the defense counsel using “honest fouls.” From the accident reconstructionist refining his exhibits to defense counsel showing objectionable evidence to the jury, defense counsel successfully advanced defense themes and fought to show the truth. The rules of evidence are designed to create a level playing field. Therefore, when plaintiffs’ bar is all about showmanship in trial, the defense bar must level the playing field and use their “honest fouls” to achieve justice for all.
i Tyson, Robert F. Nuclear Verdicts Defending Justice for All. La Jolla: Law Dog Publishing, LLC, 2020 at page 16.
iv Spinner v. Joshua Felser (2021 WL 1827154).