31.6 M verdict against experienced drinker / California DUI driver with lawyers employing Trial Attorney Legend Gerry Spence’s trial methods and a theme of “win with truth and love”.

The jury is from a conservative California farming community. 2 sisters were injured by a California drunk driver.

A large percentage of the jury pool had close relatives who had been harmed by drunk drivers, so the issue had the potential to inflame the jury and spoil the verdict.

The judge warned that he would declare a mistrial if compensatory damages were based on prejudice, which forced the plaintiffs’ attorneys to tread carefully.

“This directed the entire trial,” said Beverly Hills, Calif. lawyer Alejandro Blanco, one of the plaintiffs’ attorneys. He noted that they never referred to the defendant as a “drunken driver” during the trial, instead calling him an “experienced drinker.” It was also a tactical decision to go easy on the driver.

Lead counsel Nick Rowley said that during the trial he decided that if they received a verdict over the $10 million policy limit, he would offer to bring a bad faith claim on behalf of the driver against his insurer. Two sisters, Rocio Landeros, 16, and Marta Perez, 25, were driving to the movies when they were struck by a truck driven by a farm worker who ran a stop sign.

According to Blanco, the driver’s insurance company, Travelers Insurance, admitted liability, yet at trial the driver testified he was suffering from a diabetic coma despite his own deposition testimony that he was “blinded by alcohol.”

The chief toxicologist for the county testified that based on a breath test taken hours after the accident, the driver would have had a blood alcohol level of 0.16 (twice the legal limit) and was more likely than not an “experienced drinker,” because otherwise he would not have been able to drive at all.

Most of the one-month trial ended up as a battle over damages.

Early on, the plaintiffs made a demand for $10 million, the policy limits. Travelers, which insured both the employer and the driver individually, settled claims against the farm for $5 million but refused to settle for the policy limits for the driver.

According to Rowley, after two years of silence, the parties went to mediation and the insurer finally offered to settle for the policy limits, but the plaintiffs rejected the offer.

“Most attorneys would jump at that,” said Rowley, who specializes in brain injury and “open policy” cases where a judgment exceeds policy limits.

Instead, Rowley went to trial, knowing that a judgment exceeding the policy limit would expose the insurer to a potential bad faith suit that could include punitive damages. “I go on the offensive against them and use their own insured to go after them,” he said.

Rowley said the plaintiffs were willing to settle for between $20 and $30 million, but the defense “was banking on the jury only giving a couple million dollars.”

The plaintiffs’ case was not without its obstacles. Rocio, who suffered more serious brain damage, was a 16 year-old unlicensed driver at the time of the accident.
Her attorneys argued that although she didn’t have a license, she was an experienced driver who had been taught by her father and who was about to get her license. This convinced the judge to keep the evidence out.

On another evidentiary issue, the plaintiffs were able to use an adverse ruling to their advantage.

The judge had ruled that the plaintiffs could not call a defense expert who had opined that Rocio’s life expectancy was reduced by 13 years because of her injuries.

The defense did not call the expert, but in closing arguments claimed that no evidence existed to support a reduction in life expectancy.

This opened the door for plaintiffs to tell the jury that the evidence did exist but the defense chose not to present it. “The defense lost credibility by calling us liars,” said Blanco.

While the defense argued that Rocio had made a remarkable recovery and could live independently, the plaintiffs alleged that she experienced traumatic brain injury, spent 15 months in rehab learning to walk and talk again and still has residual brain damage.

Rowley argued that brain scans of Rocio indicated “diffuse axonal sheering,” meaning that microscopic connections in her brain had been torn.

A physical manifestation of this condition, he said, is foot drop paralysis, which causes Rocio’s left foot drags due to damage to her right parietal lobe.

An even a bigger impact, Rowley said, was the alteration in her personality.

“The Rocio who woke up in the morning and got in the car was a different person after she was hit and became brain-injured,” Rowley told the jury.

Although the plaintiffs put on several experts, the most important testimony came from Rocio’s family.

Her sister Marta, who was a passenger in the car and also injured, testified how her sister’s personality has changed.

Their mother testified that Rocio turned into a completely different person who gets aggravated, becomes violent and shows poor judgment, such as taking off her clothes and trying to walk outside.

Rowley and Blanco put Rocio on the stand for only 5 to 10 minutes. “During her testimony, [she] looked confused and very tired. We asked ‘Why do you look so tired?’ She said, ‘I feel this way all the time,’” said Blanco.

At the start of the trial, the jury had seen videotape “snippets” of Rocio’s deposition, but during the trial, defense attorneys read her testimony into the record.

“The reason they wanted to do that is that Rocio doesn’t look normal; she looks damaged, harmed. Our rhetorical question was, ‘Why didn’t you show longer portions of the video?’” Blanco said.

After a day of deliberations, the jury awarded a total of $31.5 million to Rocio and $100,000 to her sister Marta, who also suffered brain damage but can work.

The trial theme of “truth and love” was not just a catchy phrase; the plaintiffs’ lawyers lived and breathed it.

Rowley and Blanco are both instructors at Gerry Spence’s Trial Lawyers College and embrace their clients as friends.

For example, Rowley says they met Rocio at her house at 6 a.m. to see how she starts her day, ate meals with the family, saw her mother cut up the food on her plate for her, went to school with her to try to imagine walking into class with a disability and attended doctor’s appointments and family gatherings with her.

“It means getting to know and understand your clients, so when you get up in front of a jury, it’s not acting. It’s real,” said Rowley.


Plaintiffs’ attorneys: Nicholas Rowley and Alejandro Blanco of Trial Lawyer for Justice in Decorah, Iowa and Beverly Hills, Calif.; Daniel Rodriguez of Rodriguez & Associates in Bakersfield, Calif.

Defense attorneys: Charles Custer and Jewel Basse of Gordon & Rees in San Francisco.

The case: Landeros v. Torres; Feb. 1, 2010; Superior Court, Kern County, Calif.; Judge Sidney Chapin.