Damien Orato, based in the Orlando office of RumbergerKirk, enjoys the competitive nature and everyday challenges involved in practicing law. Here he talks about his practice and the importance of having a well-balanced life.

Damien, what led you to consider entering the legal profession?

I grew up playing competitive sports, participating in soccer, baseball and swimming. As I neared the

Damien Orato

completion of my undergrad studies at Notre Dame, I was drawn to the challenges inherent in practicing law and also recognized the opportunity to channel my competitive spirit into my professional life.

Tell us a little about how your practice has evolved and which areas you most enjoy.

I made it a point to get experience in several areas of civil litigation early in my legal career and I believe that experience has made me a better lawyer overall.  I enjoy the variety of the work and preparing for trials. My current practice areas include product liability, commercial litigation, trucking defense, professional and premises liability.

Trucking defense cases are especially interesting and challenging. There are always conflicting versions of the accident by the witnesses. I enjoy interacting with the truck drivers and working closely with accident reconstruction experts to analyze physical evidence in order to reconstruct the events involved in the accident. Damage to guardrails, gouge marks in the road, skid marks and the final resting position of the vehicles all present clues that tell the story. Many times, we find that these clues support our truck driver’s version of the incident.

Once we have gathered the evidence and reconstructed the accident, we work with our trucking clients to determine the appropriate legal strategy for that particular case. Many times companies prefer to work toward an early settlement to minimize legal costs. Other times, we move forward and prepare our defense with an eye toward trial. One particularly memorable trial I had in South Florida involved a plaintiff claiming a brain injury.  The plaintiff, independent witness and our truck driver all gave different accounts of the accident.  Because of varying accounts of the accident, we stressed to the jury that they should rely on the physical evidence.  We were able to show the jury during trial how the physical evidence was consistent with our truck driver’s account of the accident.

I really enjoy working with trucking company management and drivers, especially as we are seeing a rise in lawsuits against trucking companies. By getting more involved within the industry through the Florida Trucking Association and Trucking Industry Defense Association (TIDA), I am learning more about the industry and the issues that are important to our trucking clients in bringing cases to a successful resolution.

Cell phone records play a critical role in accident investigations. Can you tell us why they are so important? 

Establishing the exact time of an accident is extremely challenging. It’s hard to be precise and police records will only provide a general timeframe. Sometimes it is critical to narrow down to the minute or second when an accident occurred in order to determine if a driver – either the truck driver or the plaintiff, was distracted by a cell phone call or text message.

It’s routine practice for the plaintiff’s counsel to request cell phone records and the truck’s electronic control module data from the trucking company so we advise all our clients to preserve all available data relating to the accident.  By taking early steps to preserve the data and records, our clients can avoid claims of spoliation of evidence and possible sanctions by the court. We also request cell phone records from the plaintiff.

The real challenge lies in deciphering the records. Every cellular provider uses different codes for calls, texting and Internet usage. They also have different standards in recording the time spent on a call or texting. For instance one company might record a call at five minutes, rounding up to the next minute, while another company would clock the same call at four minutes and 5 seconds. I posted an article to the firm’s blog earlier this year that goes into more detail about how records are used. In my research, I was surprised to find that a 2010 National Safety Council study shows that 28 percent of traffic accidents occur when a driver is using a cell phone.

What kind of challenges do you typically face in product liability work? 

A large part of my product liability practice involves defending motor vehicle manufacturers, including automobiles, motorcycles and personal watercrafts.  One of the main challenges in defending a product liability claim is determining precisely how the incident and the plaintiff’s injury occurred.  Most incidents are not the result of a product defect but rather the failure of the plaintiff to properly operate the product or the fault of a third party. 

So, how do you spend your free time?

Encountering a little road blockage in Africa

I try to live a well balanced life and fitness remains a big part of my life. I have played in several flag football leagues and am always looking for the opportunity to participate in competitive sports.  My family and friends are very important to me and I make time to see them as often as I can.  My college friends, who are scattered all over the country, get together a couple of times a year and always for a Notre Dame football game.

An incredibly wonderful trip

I also have a passion for travel. My favorite experience thus far was going on a safari in South Africa. Initially, I was a little skeptical about doing a safari as I have been to a number of zoos and we have Disney’s Animal Kingdom in our back yard. Though I have to say it was a great thrill – a real rush of excitement seeing the animals in their natural habitat. We absolutely loved it. Right now we’re planning a trip to Italy. I’m really looking forward to experiencing Rome and Tuscany.