Aguilar v. Southward: Justice in J-Walking

It was Ash Wednesday. Pedro, our client, was just celebrating a promotion. This was a big deal. Pedro was born here in California, but had been working in the fields as an agricultural worker. The morning of the accident, Pedro just got the news that he wouldn’t need to work in the fields anymore – he was approved to be hired at a local fast food restaurant. Again, this was a big deal. Pedro was going to be out of the sun and not doing the backbreaking labor inherent in field work. He called his buddy and they agreed they should celebrate. He had a few beers over the course of the afternoon. Then he decided to head home.

He didn’t know it, but Pedro’s life was about to change. Pedro had enjoyed his beers celebrating, but was intoxicated. He needed to head home. To do so, he had to cross a rural two lane highway in Kettleman City. There weren’t any marked crosswalks immediately near him, but he had crossed the highway many times, so he wasn’t worried. He was wearing dark clothing and it was getting late, he knew he had to get home and be ready to be up in the morning for his last shift in the fields.

Pedro looked both ways and began to cross the highway. It had rained recently, so he kept his cell phone out in order to use its light to avoid stepping in puddles in the roadway. He crossed the first lane of the highway and was almost across the second when he heard yelling. He looked up and immediately saw two bright lights…headlights. A car was about to hit him and there was nothing he could do to stop it: it was too late.

Pedro got hit by an SUV going 30 miles per hour. The impact was so great that his body flipped in the air, landed on the hood of the car, and then fell to the ground. A pedestrian getting hit by an SUV going 30 mph is going to do damage, and it did. Pedro was 26 years old when this happened: a young guy. He enjoyed playing soccer, basketball, and running. That was all going to end. He would never be able to enjoy these activities ever again.

He woke up on the side of the road. Pedro didn’t realize it then, but he was knocked out for a short time. He was hit in the roadway and was dragged to the shoulder by folks nearby. The police came soon after and ultimately put Pedro at fault. After all, he was j-walking across a highway, smelled like beer, and the driver said there was nothing he could do to avoid the incident. The driver said he was going 45 mph, the speed limit.

Pedro got transported to the hospital. It could have been worse, but it wasn’t good. His knee and ankle were destroyed. He needed surgery. A few days later, the surgery went forward: a complete repair of his knee and ankle. His knee had multiple broken bones and all the tendons were a complete mess: they were all gone or broken. His ankle was broken as well and required screws to fix the damage. Pedro’s orthopedic doctor did a great job, but his ability to fix Pedro was limited.

Pedro woke up from surgery in a ton of pain. He was bedridden for four months. He had physical therapy, but he still had a lot of pain. When he healed, more or less, he still had a lot of problems. He couldn’t stand for long periods of time, couldn’t run, and definitely couldn’t play the sports that he used to. He would also need a knee replacement in about 20 years.

This wasn’t good. Pedro was misunderstood because he had had a couple DUIs in the past and had trouble finding a good job as a result. Pedro didn’t want to work in the fields anymore, after all, he was a US citizen, and could work elsewhere. He had just gotten a job outside of the fields, then the accident happened. This accident robbed Pedro of one of his most important attributes: his health. He couldn’t work a typical job anymore. After all, he wasn’t the office worker type. Pedro likes being on his feet and is passionate about food. He can cook anything. After the accident, he decided he needed to make a change. He went to college and got his AA in culinary studies.

In the meantime, a lawsuit was filed against the SUV driver and his insurance company denied they were at fault. In fact, they kind of hated Pedro. They thought he was a drunk and a liar. They overlooked him.

Pedro was drinking before the accident, but he never lied. He had some inconsistencies in his testimony, but this was due to the passage of time: memory fades, and people forget the detail.

The insurance company did not want to pay this claim. At one court hearing the defense attorney turned to Pedro, pointed her finger at him and said: “You’re a liar and I’ll see you in court.” This didn’t go unnoticed by Pedro or the his attorney present at the time. After all, this defense attorney made clear what she thought of Pedro. He believed this was hugely unfair. He wasn’t the liar she accused him of being.

Prior to this, I had done a small amount of work on the case and had talked to Pedro on the phone a number of times. However, I was not a licensed attorney at the time. Fast forward a couple of years later: Pedro’s case was going to trial. The defense attorney had insurance policy limits of $100,000, but refused to offer anything more than $40,000 on the eve of trial. Pedro asked for $50,000. The defense attorney refused. After all, she believed Pedro was a liar and that she had a strong case.

I was contacted by my good friend and colleague, Marrianne Sioson, an attorney at the Law Offices of Brian Larsen at the time. She was the one preparing to take Pedro’s case to trial. I was asked if I wanted to do the trial with Marrianne – I agreed. I was in. I wanted to help and wanted the opportunity.

We were going to trial in Kings County, California. I have lived in California all but one year of my life and I had to look up Kings County – I didn’t know where it was. We were a couple of “city lawyers” headed to a rural, agricultural county to try a case. We were outsiders. It was going to be a humbling experience.

We tried our case. We were up against the full force of an insurance company and their resources. The defendant was a white guy from San Mateo County. If it wasn’t obvious already, Pedro is latino. I don’t agree, but some may argue that on paper, the defendant would be more believable at trial. I find that outlook very troubling, but that’s a conversation for a different day.

At trial, Pedro testified about his injuries and all the activities he couldn’t do anymore. Pictures and x-rays of his injuries were projected onto a huge screen. The jurors reacted in the way we expected: with shock. After all, this was a gruesome injury.

Our experts were fantastic. One of our experts helped us reconstruct how the accident happened. Ultimately, he helped us prove that the defendant had to have been speeding before the impact. This is so critical because had he not been speeding, he would have had plenty of time to stop and avoid the accident. After all, he claimed he couldn’t avoid the accident. This is somewhat true: he immediately slammed on the brakes when he saw Pedro in the roadway. The problem though is that the speed limit in the area was 45 mph and the defendant knew that. Nonetheless, he was speeding because it took him too long to slow down. He hit Pedro still going 30 mph: proof he was speeding based on where he first began to perceive Pedro in the roadway and react by braking.

The jury agreed with our analysis of defendant’s distance and reaction time and concluded he was speeding. The jury put the defendant driver 60% at fault and put Pedro 40% at fault. This was a very fair division of fault. Although Pedro was j-walking, California law requires drivers to be more careful than pedestrians. After all, cars hurt pedestrians. Pedestrians don’t hurt each other.

We got a total verdict of $575,742.95. This was reduced to $345,4445.77 due to Pedro’s 40% fault. This was huge and life-changing for Pedro. After all, he was willing to accept a fraction of that amount, $50,000, before trial.

Not going to lie: this was one of the most rewarding experiences of my life. And it doesn’t have anything to do with me or my career – it all has to with Pedro. We really got to know Pedro and learned what a wonderful person he is. We laughed together and shared experiences. The three of us were a team. And we won. 🙂

The victory and emotion was overwhelming. Not going to lie, I burst into tears after we left the courtroom and got into a private area. The fact that the jury connected with Pedro in the way we had was so wonderful, it’s hard to even put it into words. Even writing this now brings a tear to my eye.

Victory for Pedro. <3

Read the transcript of when the verdict was read in Pedro’s case by clicking the image below:

This verdict was recently featured in the October 30, 2017 issue of VerdictSearch below:

Pedro Aguilar v. Harry Southward Verdict Transcript
Pedro Aguilar McCall Baugh VerdictSearch
Pedro Aguilar v. Harry Southward Feature in VerdictSearch

2018 Update:

I just finished an 11-day binding arbitration for a residential construction case in San Francisco. More updates coming soon.
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