Originally published in Plaintiff Magazine, November 2011

My partner and I were sitting in the hotel the night before trial. Across from us sat the defense lawyers for the forklift manufacturer and the company’s general counsel. Our client’s injuries stemmed from an incident where an Albertson’s employee, operating the manufacturer’s forklift, struck our client. The employee and Albertson’s said brake failure. The manufacturer said operator error. Because of Albertson’s allegations, we sued the manufacturer in order to avoid an empty chair argument.

It was bad enough that the forklift had a whip-smart local products defense lawyer. When it became clear the case would try, they added a second, a pro hac vice lawyer whose bread and butter was travelling around the country defending this manufacturer against products liability claims. To say the forklift team was a tad more sophisticated than our Albertson’s opponents at defeating liability and damage claims was an understatement.

An opening.

We had come to a grudging understanding that our case against the manufacturer was not great. But the manufacturer knew we stood a better chance of tagging the manufacturer than the Albertson’s team did with Albertson’s cross-complaint. We also knew the manufacturer’s lawyers had the capacity to slice away at our damages in a way the Albertson’s team could not. The last three weeks we had danced around the issue, neither side being able to put their finger precisely on how we might be able to ally ourselves.

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