Can a Bicyclist Hit by a Car Win a Personal Injury Case?
With the right approach by his lawyer, a bicyclist hit by a car can win his personal injury case. The conventional wisdom among members of the public who think about the justice system, and many members of the bar, is that a bicyclist hit by a car begins a jury trial with two strikes against him. Whether or not that is true depends heavily on the facts of the accident case. While that may seem to be the rule for every personal injury case, there is some truth to the notion of juror bias against bicyclists. The majority of jurors will be drivers. Many will not have sat upon their bicycle, rusting in the garage, since childhood. Making the plight for responsible cyclists who are injured, even more difficult, is the reality that every driver has experienced near misses with aggressive bicyclists who ignore the rules of the road. Some jurors may question whether the injured bicyclist was hit by a car because he was riding irresponsibly.
How, then, does a personal injury lawyer settle or win a case for his injured bicyclist client? The same way that every plaintiff's case is won thorough preparation, understanding the applicable law, and humanizing the client. Investigating a serious bicycle accident as soon as possible is essential. Witnesses who saw the cyclist riding properly or the driver ignoring a red light or stop sign, or driving inattentively, can help the injured plaintiff avoid a situation in which it is his word against the driver's. If the accident was serious, police were undoubtedly called, and should have taken the statement of any witnesses who were still at the scene. Witness statements on police reports, however, are often sketchy. The plaintiff's lawyer will want his investigator to obtain a complete statement while the witnesses's memory is still fresh, and hopefully, before an insurance company investigator can obtain a statement perhaps tainted by the insurance investigator's the use of misleading questions. Plaintiff's counsel will also want to go to the scene promptly, and have pictures taken (roadways sometimes change over time) so that the attorney can understand exactly how traffic worked at the location. I have found aerial photos to be very effective in conveying a clear picture of an accident scene, often in a way that ground level pictures cannot.
If the case proceeds to trial, plaintiff's counsel may consider a motion in limine (a pre-trial motion dealing with trial matters) instructing defense counsel not to make any remarks disparaging to bicyclists generally. The most important job for the bicyclist's lawyer will be to portray the cyclist as much as the facts allow, as a likeable, caring and responsible person doing the best he can to deal with the aftermath of the collision. Any accident case requires that the injured plaintiff's lawyer persuade the jury that the defendant's negligence caused the plaintiff's death or injuries. When representing an injured bicycle client, plaintiff's counsel must be mindful of potential juror bias against bicyclists, and work into his trial strategy, means to overcome that bias.