Andrew DuPont of our office won a jury verdict of $2.3 million for a construction worker who was hit by a hose from a concrete pump truck, knocked off a wall, and seriously injured. It took extra efforts to preserve that verdict on appeal to the Superior Court.
One of many issues the defendant raised on appeal was that the pump truck was not its truck. At trial, the plaintiff had identified a photo of the defendant’s pump truck. This should have been enough to win this issue easily on appeal. However, all the trial exhibits were given to the trial court and lost! We knew it could be crucial to this issue on appeal to include that photo in the appellate record. Happily, Andrew carefully said on the trial transcript that the photo was the same as a photo identified as a specific exhibit in a deposition. That gave us justification to use the deposition photo in place of the missing trial photo.
The deposition photo was not in the record certified to the Superior Court, so we first had to request the trial court to add the deposition photo to the Superior Court record. This extra effort proved to be worth it when the Superior Court opinion prominently referenced that photo.
Another problem was that the defendant raised many issues in its brief. In response, we argued not only the merits of those issues but also argued that many of the issues had been waived or were harmless error. Everyone knows the general point that one must immediately and directly answer the appellate judges’ questions. We could see that the judges could easily focus on a half dozen different issues, some of which required complicated answers. We were concerned that we might lose valuable time and interest by the judges if we fumbled for the answers to questions. So in preparation we prepared numerous typed charts, each one summarizing my argument on an issue.
This proved valuable when one judge told me she had sympathy for the other side’s complaint that the company we claimed was the defendant’s agent had not been mentioned in the complaint and this prejudiced them at trial. I was able quickly to pick up my sheet on that issue and describe over half a dozen ways that the defendant had not been surprised or prejudiced about the identity of the agent. The judge then asked counsel for the defendant what answer he had to my arguments of no surprise or prejudice. He floundered with a poor answer.
When the Superior Court’s opinion affirming our victory was released, I was proud to see that all three judges ruled in our favor. It is easy to lose a case at oral argument, but rare to win it at oral argument. My oral argument had changed the mind of the judge who had sympathy for the other side.
Our victory in the Superior Court was so sweeping on all issues that the defendant did not even ask the Supreme Court to hear the case. Extra preparation had saved millions.
