JSH Reporter JSH Reporter - Fall 2017 - Page 22

FEATURED ARTICLE: DRAM SHOP 022 WHENEVER POSSIBLE, THE INTOXICATED PATRON SHOULD BE THE FIRST PERSON DEPOSED. WE WANT TO KNOW HIS VERSION OF THE EVENTS, AND WHETHER HE HAS HIS OWN AGENDA TO SERVE IN THE CONTEXT OF THE LAWSUIT. times has he become intoxicated and driven a vehicle? How many times has he refused rides when intoxicated, and why? Did he ask for alternative transportation in this case and, if not, why not? In this case, did he attempt to hide his intoxication from bar employees? What were the details of his presence in the insured’s bar? What opportunity did he give bar employees to discover he was intoxicated? Who did he mingle and communicate with while at the bar? Did he make phone calls or send text messages? Does he own and use a smart phone? Does he keep the GPS turned on? Is his smart phone still available for forensic download? Best Practices for Deposing Other Witnesses Potential witnesses in a dram shop lawsuit include other individuals who were at the bar (likely consuming alcohol themselves), bartenders and servers, individuals who saw the accident/fight or came upon it shortly afterward, law enforcement officers who investigated the accident/ incident, and family members and friends of the intoxicated patron. Although all of these individuals may have observed or interacted with either the injured party or the intoxicated patron, their recollection and testimony can be drastically different. They may have witnessed the intoxicated patron at different times and places in the hours leading up to the accident/incident. The purpose in deposing them is to piece together different time segments and perspectives. When evaluating witnesses, it is important to find out: (1) what the witness observed, where and when; (2) how the witness knows the intoxicated person; (3) how long the witness observed the intoxicated person; (4) whether the witness was drinking that evening; and (5) the context in which the witness was interacting with the person (investigatory purposes, customer service purposes, or as a fellow patron who was simply in the same place at the same time.) These factors will also affect how the witness testifies and how to challenge the witness’s testimony. For bar managers, bartenders, servers, and security personnel, it is also important to find out: (1) what they observed and the extent of their interaction with the intoxicated patron or injured individual; (2) the extent of their training on serving, cutting off, or interacting with intoxicated patrons; (3) their responsibilities on the night of the incident; (4) their previous experience with cutting off intoxicated patrons and what they do after cutting off alcohol service; and (5) what measures they take to remove the intoxicated patron from the premises and find alternative transportation for the patron. Employees of the bar are key witnesses because they influence how a jury will perceive, embrace or reject a bar. Opposing counsel often tries to portray the bar as a place where servers/ bartenders will encourage patrons to drink more because by selling more drinks, patrons are happier, patrons will leave larger tips, and the bar and its employees reap more financial rewards. Sometimes opposing counsel will focus on the specials offered, arguing that the specials encourage patrons to drink to the point of intoxication/excess in order to get more business and make more money. Admittedly, while the bar may be successful when it sells more drinks, no establishment will be successful in the long run if patrons do not feel comfortable going there, or employees don’t feel comfortable working there, because it is full of uncontrollable, messy, and recklessly intoxicated people. Bartenders and servers will be questioned about how they determine a customer is “obviously intoxicated.” Opposing counsel may ask them whether they “count drinks” or refer to the BAC chart, which gives an estimated BAC based on body weight and number of drinks. While DUI statutes rely on an individual’s BAC level, dram shop statutes and claims do not identify a specific BAC for a person to be “obviously intoxicated.” Instead, civil dram shop law focuses on behaviors and mannerisms of the intoxicated patron. Further, neither bartenders nor servers have the training or scientific means to test and determine a patron’s specific BAC. Nor are they required to do so as part of their job. Phone Records and Social Media Discovering phone records and social media from the intoxicated patron or the injured party and, in some cases, employees, can be extremely useful (or detrimental) to a case. Phone records and social media posts can show whether the intoxicated individual made phone calls, sent text messages, checked in or posted to social media while he was drinking, telling his friends he was on his way to the bar, or that he was leaving. Employees may also discuss their place of employment, or promote the bar/ establishment on their own social media pages, and the bar/ establishment itself can have a certain “image” it portrays on its own Facebook, Instagram, Twitter feeds, or websites. Sometimes, bar employees are social media friends with the intoxicated patron. As a result, it is extremely important to be mindful of what is posted, sent, or said on social media and the Internet.