By: Gordon K. Wright
Mega verdicts are a product of many factors: some venues are now very conducive to large verdicts; jurors may be angry at things in society and they take it out at trial on the defendants who “injured” the plaintiffs; society inflates what an injury is worth; jurors are more emotional, plaintiffs are trying cases focusing on fears and frustrations while defendants are still focusing on law and facts; the burden of proof is, in reality, shifting to defendants to show why they were not at fault; and life-care plans are greatly inflated. Plaintiffs often want to have just enough evidence to get to the jury, where emotion can take over. While the mega-jury verdict issue has no easy solution, defendants can take simple steps to increase the likelihood of their being heard and their points being considered by the jury.
A. Approaches to Consider for Future Cases
Defendants can take some actions in the long term to try to mitigate the damages in negligence cases, as well as more specific actions that defendants can take that will likely improve its approach to the defense of serious cases. These are not the only workable ideas to increase success in the courtroom, but I believe they are ideas that will contribute to a more successful litigation strategy for defendants.
Several efforts should be made over time that will enable defendants to be more effective in determining which cases to try and which to resolve before trial. They also will provide a more certain legal foundation for the cases that are tried. Additionally, they will enable defendants to take the learnings of one department in a case that is tried and share those learnings with other departments and professionals at the defendant’s business.
a. Communication Within the Defendant’s Company
When something occurs in a litigation—whether at trial or at other times—that would be beneficial to share with other entities within the defendant’s system, that needs to be shared promptly. Department heads, or others as determined by defendant’s claims and risk managers, could attend and then be responsible for training their departments. After consultation with the defendant’s relevant leaders, outside counsel could be used to present topics and field questions at the meeting. This would allow sharing of experiences learned in one case affecting one department with other departments in the company.
Training on recordkeeping with potential litigation in mind also would be useful. I am not suggesting that records be kept solely to protect defendants from litigation. I am suggesting that recordkeeping be done more deliberately in some cases.
Entries should not be merely copied from what was written before. Jurors do not look favorably on records made late, or those that are demonstrably incorrect or that are repeated over and over because a subsequent record keeper merely copied what they read without verifying it as her own observation. It never looks good to a jury to have someone say that the note is theirs but they really just copied what they found earlier in the record. Avoid simply cutting and pasting.
c. Legislative Efforts
Some issues could be addressed legislatively to change a given state’s law to make it more in line with the law in states where businesses have been successful in making a more fair litigation environment. “Tort reform” is not a particularly popular term; but, it is needed in many venues. Here are a few examples:
Although more legislative needs exist, these examples suffice to show there is work to be done.
d. Staffing of the Case
Case staffing with counsel could be accomplished before discovery is done. The team approach to the defense of the case is a good one; but, knowing how the defense team is structured early on is critical to allow a cohesive approach to the defense. Included in the lawyers to be involved early in the case will be the local lawyers, national counsel (if desired), an appellate lawyer, and perhaps special counsel to assist with damage theories (the effect of special needs trust, qualification for Medicare and/or Medicaid, etc.).
Adding national counsel and damages counsel will not add significantly to the costs of defense (other than perhaps travel expenses) because the work they do needs to be done and would be part of local counsel’s fees and expenses if special counsel is not retained. National counsel, appellate counsel, and damage counsel—if retained early—can add perspective to the case. Periodic roundtables with counsel and representatives of the defendant can ensure communication is effective and that all are moving in the same direction.
e. Defendant’s Policies
The defendant’s employees, who are part of the case or who will be witnesses, need to understand and be conversant with defendant’s policies. Jurors expect that the professionals are aware of the company’s policies. Additionally, the policies need to reflect the current industry standards or best practices.
In sum, these long term considerations, as well as others, should be implemented soon to allow for the greatest benefit to defendants. People who have experience with working issues through state legislatures may be of some help in working with defendants to improve its long-term litigation prospects.
As with the long-term efforts, this section is not meant to be an exhaustive list of everything that can be improved upon. But these are some ideas.
a. Creating appellate issues
I am not suggesting frivolous issues be created, or that unnecessary motions be made. We need to increase the risk to the plaintiffs. Right now, they simply want to get in front of a jury and are not too concerned with proving their case with much evidence.
By creating appellate issues through the discovery process and using appropriate motion practice, we increase the risk to the plaintiffs. Plaintiffs may receive a large verdict; but, we will have preserved myriad issues that can be raised on appeal that could take away or reduce that verdict and/or cause a new trial. This also provides leverage for settlement. Motions can be made during the discovery, pleading, and pre-trial phases of the case. The motions need to be well-founded, but we need to seek opportunities to make such motions. This also increases the risk to the litigation funders if they are involved in the case.
b. Jury Selection
Some interesting issues relating to jury selection affect a trial. First, if the defendant is frequently a large—possibly impersonal—institution, the jury needs to connect with the trial lawyer(s) who are trying the case. Thought needs to be given as to what that looks like in hiring trial counsel. Second, through our questioning, we need to help jurors commit to being strong and true to their convictions. We have had jurors who gave up on their convictions because they felt bullied by other jurors. Third, we need to anchor both standard of care and proximate cause. These issues need to be specifically set out in voir dire (pre-trial jury questioning) so the jury sees our efforts as consistent through the trial.
Fourth, we need to anchor the potential damages to a defensible number. That begins with voir dire and continues through the trial. Fifth, we need to have the law on the bias of a potential juror at our fingertips so the plaintiffs cannot use an incorrect statement of the law to disqualify potential jurors or avoid showing the requisite level of bias before disqualification. Sixth, we need to preserve error in the jury selection, and we need to understand precisely how that is to be done under the applicable law.
We also can take steps to help witnesses be effective in their testimony. Witnesses (and counsel calling them to testify) often think they are prepared to testify when they are ready on issues that the defense wants them to talk about. They need to be ready, however, on other issues that may be important to the jury. Here are some points we should focus on.
d. Appellate Practice
As mentioned earlier, an aggressive appellate approach is critical where we can increase the leverage on plaintiffs. Where available, interlocutory appeals can be taken that may put pressure on the court, the plaintiffs, and other witnesses. I am not advocating that we create unnecessary delay or costs; but, I do think that we need to make specific and significant efforts using the law to make the plaintiffs focus on the evidence and the law. We need to create an appellate record that will help the trial court understand we are totally focused on the legal aspects of the case and willing to “take it up” if the verdict is adverse.
e. Hot Documents
Counsel should develop a theory of the case early on—that theory may change, but a working theory is very important before depositions start. That will also allow the review of evidence—medical records, etc.—to be focused.
In the course of developing evidence and reviewing the testimony that comes out in depositions, those documents that develop as the focus of the case need to be identified and put in context of the entire record. Sometimes plaintiffs cite documents out of context; having an answering document ready is sometimes the best approach. But it must be prompt. In short, defendant’s counsel needs to detect misuse of the record and address it. Defendants should use the hot documents often—in voir dire, opening argument, and closing argument—as well as with the witnesses.
f. Make a Simple Package for the Jury
A challenge in defending the complex case is making the issues simple enough for a jury to want to understand them. We need to package the themes in the case in a coherent, simple way. Too often defendants try to answer plaintiffs point for point. That can be tempting—and sometimes necessary—but, in these cases, juries are looking for something they can understand that can support what we are asking them to do.
Again, we need to anchor the jury to a consistent theory. That needs to be developed throughout the discovery phase so that the evidence obtained in deposition fits into the simple package we want to present to the jury.
This memorandum shares ideas that we have learned through years of jury trials. Many of these ideas seem obvious, and they are, to some extent. Implementing them cannot be a haphazard effort that is not consistent and focused. This is not an exhaustive list; other issues will become evident as we work on additional cases. But the commitment by all involved for defendants—the attorneys, the defendant, and its insurers, needs to be long-term and focused to reduce the likelihood of mega-jury verdicts.