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The Deep Pockets Theory

Drew Marshall

    The first car jumped the divider, killing the driver of the second car. The estate of the deceased sued the driver of the first car. They also sued the city. Defective design of arterial highways and traffic signs were listed as the cause of action.
    Including the city in this type of action is common. The “Deep Pockets” theory applies. The belief that damages can always be obtained from the city.
    I was employed by the Cooperation Counsel as a pre-trial litigation paralegal. I worked in torts, personal injuries. I seldom received death cases. I set up a date for the plaintiff’s attorney and his expert witness to examine the car of the deceased.
    I spoke with the desk sergeant where the car was impounded. We confirmed the date and time.
    On the morning of the examination date, I received a phone call from the plaintiff’s attorney. He was enraged; the car had been sold for one dollar at auction, the day before. He screamed that willful destruction of evidence would be added to the charges against the city, and then hung up.
    I was shocked and rushed to tell the law student and attorney whom I worked with what happened. They were quite dismayed at this fact. The majority of cases I handled usually settled before going to trial. That certainly would not be the case with this action.
    By the time the case had come to trial, it had been sent to another unit. They handled high profile cases. I was notified to meet with one of their attorneys. I would have to testify at the trial.
    The judge had a good reputation. He was considered one of the more scholarly and fair-minded judges. The man was accessible and not pompous. Several times in the course of the year, I would have reason to be in his chambers. He was always ready with a pleasant good morning or good afternoon. I liked him.
    Every year for the eight years I had worked for this city, I’ve been called for jury duty. As soon as it became known what I did for a living, I was quickly dismissed. I was not nervous about taking the stand.
    Our attorney asked me to explain what I’d done prior to the date of the inspection. The point was to prove that the Police Department, not the law department, was at fault. This struck me as absurd. We were different agencies on the same team. I kept this to myself and did what I was told.
    I had barely finished my first sentence when the young plaintiff’s attorney sprung from his seat, shouting; “Objection! Hearsay!”
    His objection was sustained. The question was rephrased. The angelic looking attorney again jumped up like a Jack-in-the-Box, repeating his objections. They were sustained.
    At that moment I looked in the direction of the jury. I believed they had a right to know these facts, regardless of who was at fault. I decided I would continue speaking and not stop if interrupted again.
    I was asked if I had confirmed the inspection date with the police department desk sergeant at the impound garage.
    The lawyer was livid. I continued speaking. The judge sat about three feet from me and a few feet above me. He had a magnetic charisma. He turned towards me and appeared god-like. In reality, I was several inches taller than this magistrate.
    “That will be enough young man.” he said, sternly.
    I blurted out; “Yes sir.”
    I guess my belief to put forth the facts in this case were not strong enough to hold up against a contempt of court charge.
    The judge then stated the obvious. The city was responsible. It was not relevant to put blame on the police or law departments.

    That was over twenty years ago. If memory serves correct, the city lost thirteen million in damages. I believe there are statutes which determine amounts to be awarded in wrongful death cases. Past and present earnings, and projected future earnings, serve as guidelines. Was the person a child, unemployed, or disabled? Is the deceased male, female, young or elderly?
    I vaguely recall having had a similar case a few years later. I think we lost a few million that time. I can’t remember specifics of the gender or age group, which the deceased fell into.
    How does one, or an institution, place a value on a human life? Is this a philosophical or legal question? The law and philosophy are not mutually exclusive of one another.
    Should limits on damages be set?
    A trial attorney once told me the law was a crapshoot. Roll the dice, play your cards. In the end, the law was what the trial judge said it was.

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