Recently, New York Trial Partners Karen L. Campbell, Alan Kaminsky, and John A. Anselmo, with the assistance of in-house trial consultant Jasen Abrahamsen, conducted a mock trial to determine jury sympathy in a motor vehicle/bicyclist accident.

In the matter being analyzed, our client, who was driving a work vehicle, was crossing a six-lane traffic intersection when an infant-plaintiff, age 12 and with an IQ of 70, sped by on a bicycle going in the wrong travel direction and made contact with the door and mirror of the client's vehicle. Our client never saw the plaintiff; he never slowed, braked, or sounded his horn. Following the impact, the client pulled over, walked back, saw the plaintiff lying on the ground bleeding from the head, and promptly called 911.

Following the accident, the plaintiff's Glasgow Coma Scale was a 3, the lowest possible score. He had suffered a traumatic brain injury (TBI), skull/cranial fracture, a large cranial defect with exposed brain tissue, a brain contusion, subarachnoid and parenchymal hemorrhages, teeth loss, and a left thigh laceration. Furthermore, the plaintiff has significant cognitive issues, permanent scarring and disfigurement, and quadriplegia. Initially, the plaintiff was comatose and underwent a decompressive hemicraniectomy, removal of skull fragments, a tracheostomy secondary to respiratory failure due to ventilator dependence, and a right frontal cranioplasty, and duraplasty secondary to the TBI. He has developed early encephalomalacia and, three years post-accident, remains in a 24-hour skilled nursing pediatric center.

The mock trial focused exclusively on liability. The team was specifically interested in whether sympathy for the infant-plaintiff would override the client's lack of negligence, or cause a jury to ignore or nullify certain facts or the law to reach a result that favored the plaintiff. Based on the deliberations of the mock Bronx County jurors, the team confirmed several effective defense themes while also determining which arguments to refine, reconsidering the use of demonstrative materials, and gaining other relevant data for trial prep, jury selection, and trial. This exercise also allowed the team to realign certain defense themes to strengthen and shore up weak points of the case.