By: Tracey Knutsen
Over the years at the America Outdoors conference, we have discussed waivers, insurance and the finer details of your risk management needs. But I want to help you connect the dots to understand how all these pieces come into play when you actually have to go to trial.
We are going to look at 5 ‘chunks’ or issues that relate to getting a matter through or into trial posture. Those five chunks or issues are: 1) insurance; 2) time/energy of the process; 3) what actually happens at trial; 4) connecting the dots between an actual incident and trial; and 5) the evidence and defenses that will come into play at trial. These 5 areas should help you better understand the process of getting to trial.
Insurance
If a matter is going to proceed to trial you need to understand a few things related to your CGL (comprehensive general liability) policy. Your insurer will appoint a defense counsel (attorney). Work with the insurance company to make sure this counsel is someone who is experienced in the actual recreation world and who is an experienced trial counsel. Your insurance provides two things: ‘defense’ and ‘indemnity.’ Defense is the cost of the attorney that is appointed, and indemnity is the cost of any settlement or verdict that may be entered against you (up to your policy limits).
Insurance companies are loath to gamble and so they will generally try to force a policy holder to settle rather than try a case. You will need to understand your defenses and the evidence for and against your defenses so that you can evaluate (with your counsel) if the matter should, in fact, proceed to trial. If you proceed forward without good defenses and/or evidence and you settle high or lose at trial – it drives up your ‘loss runs’ and this can make your operation difficult to insure going forward. The defense costs to try a two-week trial and to get the evidentiary and motion practice work done in the couple of years before a case actually goes to trial can easily be in the range of a quarter million ($250,000) dollars.
Time Energy of the Process
It is standard to have a filed (at the courthouse) case take two to three years to actually get to trial. This means that you and/or your staff or assigned representative will be interfacing with counsel for (literally) years. You will also have to allot time for depositions, to review pleadings (documents filed in court), to meet with employees and witnesses, time to gather documents and investigate. This also means that you will have 2-3 years of the ‘worry’ of the case hanging over your business. It is important not to underestimate how much time and energy is spent (maybe drained is a better word) until the matter goes to trial. Trial itself is 10 hour days for weeks at a time for a company representative (most likely the company owner) at counsel table in the courtroom.
What actually happens at trial
The first thing that happens at trial is jury selection. This usually takes a full day and involves the process of questioning large groups of people and winnowing the group down to an ‘acceptable’ group of 12 people who can listen to the evidence and then apply the law as the judge gives it to them. Once trial actually starts, first the Plaintiff (the person who sues your business) does an opening statement (tells their version of the story). You will do (your counsel will do) your opening statement second; the point here is that Plaintiff talks first and you only get to talk after they have told their version of the story.
As the evidence starts coming in, it will be the plaintiff that spends the first half of the trial putting on their evidence. Again – you will be up second.
There are only three types of evidence and every piece of evidence has to come in through a witness. The types of evidence are: real (actual stuff like the broken ski or paddle or the actual release the client signed); testimonial evidence (what a witness has to say) and demonstrative evidence (like models or photos that will show something about the scene or situation). There are only two types of witnesses – fact witnesses or expert witnesses. A fact witness is someone who knows (heard, saw, smelled, felt or in some other way learned) a fact about the situation. The expert witness is the only person who can offer an opinion at trial and they are hired to review the evidence and then offer opinions.
Hopefully you can now think of how absolutely critical it is to have in place policies and procedures and to conduct detailed post incident response – each of these things will become pieces of the evidence presented at trial. Virtually everything you use at trial will come from your policies and internal documents and your investigation.
Connecting some dots between an incident and a trial
Post incident we say these things:
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Post accident responses may have a lot to do with whether you get sued or not.
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The more serious the incident the more elevated your response should be and the more potential there will be for litigation.
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One of the keys to minimizing injury/illness producing incidents (and damage to your business) is to have a written emergency response plan or protocol in place that is drafted with the particular characteristics and needs of your operation in mind
We also say:
We also say: COLLECT:
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Witness statements, complete lists of participants and addresses
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Staff/guide statements
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Law enforcement files/contacts (do you need to notify your public land administrator?)
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Photographs/video tapes - did your clients or others shoot photos? Can you get them?
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Participant agreements
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Releases/exculpatory agreements
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Radio logs or trip manifests
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Media reports
You should have written protocols and be able to demonstrate you followed them with appropriate ‘flow’ per the real facts of the case (real evidence). You will have law enforcement, permitting agencies and other outfitters who can testify as to your immediate contacts and organization (testimonial evidence). You will have witness statements that can refresh folks’ recollection later (real and testimonial evidence). You will have guide statements to corroborate the guides’ testimony (real and testimonial evidence). You will likely have photos and videos (real evidence). You may (probably should) have radio logs, trip manifest, releases (real evidence). If you HAVE all these things you will be well armed and an expert will be able to ‘opine’ on standard of care and that you did (hopefully not) or did not breach it (expert testimonial evidence).
Your Evidence and Your Defenses
Now think about coordinating how evidence works to demonstrate the actual defenses we rely on in recreation cases.
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Assumption of Risk – what pieces of evidence? You will be looking at your release contract, safety briefing and advertising. Who can testify as to each of these pieces?
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Release and Waiver Contract or Exculpatory Document – use a copy of it and think about who can testify that they witnessed the person signing (unless it is electronic). The release should have language stating that the client has agreed it’s admissible into evidence.
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Negligence – an expert who can opine you did not breach the standard of care if you have the right witnesses and real evidence pieces that he/she can rely on.
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Inherent risks – experts will opine that the risk that produced the injury are inherent to the activity and your release contract should express what risks are inherent to the activity.
“Well thought out risk management is like the saying on honesty – it’s easier to keep trust than to lose it and then have to earn it back.” In other words, the reason we look at risk management as an upfront activity is that it is much harder to come back from a critical or litigious episode than it is to prevent the episode (and litigation) from happening in the first place. Hopefully the exercise of thinking about the evidence that will come in at trial and how that evidence relates to the actual defenses we use to defend a recreational liability case will help your risk management thought process.
About the Author
Tracey L. Knutson is a licensed attorney whose primary practice involves working with recreation and adventure sports commercial operators, public land administrators and recreation oriented educational groups. An experienced trial lawyer, Tracey defends recreation companies and sports groups from liability claims, often negotiating pretrial conclusions that minimize time and expense. In addition, she provides risk management and training services. Tracey's belief, when it comes to recreational endeavors, is that risk and opportunity exist simultaneously. Learning how to maximize the opportunities in your recreational endeavors by minimizing or mitigating the risks is a key component of operating a quality adventure sport or recreational endeavor or business.”