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Litigating and Trying Cases in “Difficult” Venues

Date: 5/1/08

David A. OlsonJust when everything seemed to be going so well: claims are manageable in numbers and exposure, a couple of defense verdicts have recently been achieved, insurance premiums are only moderately painful. Then one pleasant afternoon, a summons and complaint are served on your company. A catastrophic injury. To a child. An initial investigation reveals a clear misuse of the company's product. The case should be very defendable, but . . .

The suit is filed in what is universally recognized by the defense bar as a "hell hole" venue, in part because of its "demographics." The plaintiff's lawyer is one of the princes of that venue. He lives in a mansion. He has his own jet. Moreover, the judge and he were fraternity brothers in college. You have never met this lawyer, but you already hate him.

The foregoing is the lowest of Dante's circles of product liability litigation hell. Nevertheless, having decided not to take an early retirement, you must now get to work. The sooner you start aggressively defending the case the better - obviously.

Investigation
Working in conjunction with outside counsel, you need to retain and dispatch to the area a top notch investigator to learn everything he can about the circumstances of the accident and those "involved" in it. While this step seems quite obvious, I am persistently perplexed by the number of corporate defendants who are reluctant to so proceed. Given reasons typically amount to - the venue is so "corrupt" - this could backfire.

Nonsense. No product liability case has ever been successfully defended by playing ostrich. Even in "hell holes", there are likely to be witnesses who are not enamored of the plaintiffs and/or their attorneys. As for other witnesses and people of knowledge, as long as your skilled investigator has the proper demeanor and knows when to stop pushing, all sorts of information of potential value to the defense may be learned. Stated succinctly - be strong, not tentative.

Lawyers
When it comes to selecting counsel, "things" probably will hinge on whether under the company's insurance scheme you have the right to appoint or the insurer does. Space does not permit a thoughtful discussion of the many issues to address when the insurer is calling most, if not all, of the shots. However, a good deal of what follows regarding the situation of when the manufacturer selects defense counsel, has relevance to the insurer-appointed lawyer scenario.

Ideally, the company has national, regional or, at least, other defense counsel, who are very familiar with: (1) the corporation itself, including its design and manufacturing procedures; (2) the product at issue; and (3) employees who may or may not be witnesses. The nastier the litigation the more important to the company that outside counsel be true believers in the cause and the product at issue. Also, it is valuable to the company, especially in difficult litigation in difficult venues, that outside counsel dedicate its "best and brightest" to the defense. Of course, outside counsel must be ready, willing and able to try the case no matter the odds.

Now comes the hard part - selection and use of "local counsel." The company must have both counsel that are known to it and counsel that know the venue - regardless of expense. Depending on the variables in the "hell hole," the latter can be challenging to secure. Factors include:

  1. All the local crowd practice on the "plaintiff's side". Then, the company will need a lawyer from the "area", who will be viewed by the jury as, essentially, pretty much "like them."
  2. How can we be certain that the local lawyer, who has agreed to sign on, is really on "our side"? This can be a legitimate concern. Old-timers like this author have often been confronted with "local counsel" whom they suspect have an interest in keeping their venue one where plaintiff's counsel love to bring suit. If those "suspicions" are somehow validated, the company probably, perhaps must, cast a wider net to secure counsel from a wider area, who understands for whom he/she is working.
  3. Demographics (of course): If race or ethnicity of the prospective jury appears to be a factor, in addition to shear "localism" - then it is a factor, and a major one. Should the company's usual lawyer not match up racially or ethnically, then no stone should be left unturned to secure local counsel who does.
  4. The company and its usual lawyers must make aggressive and serious use of its local counsel during pre-trial preparation and trial itself in problematic venues, competence is critical. Although this approach seems to be obviously necessary, I have long been amazed at how often local counsel is relegated to a passive role.

Experts
Corporate defendants should not be instinctively adverse to "retooling" from their usual stable of liability experts in difficult venues. For the same reasons that strong local counsel can be extremely helpful, so can experts who are from the area and, even better and if possible, are reflective of the likely jury. It may take some digging to locate such witnesses. However, these efforts, if successful, generally pay dividends in the courtroom.

Trial
After well over a year of preparation, it is apparent that settlement simply is not going to happen, at least not before some portion of the case is tried. Opposing counsel either wants to upgrade to the latest, greatest Gulf Stream or purchase a third home - this one in Boca Raton - and is counting on your company to help with the financing. So, how best to try the case in order to achieve the best possible result?

Of course, there is no single answer to this "question." The best I can do is offer thoughts about my (general) approach, which (on occasion) has met with unexpected success. (Success having many different definitions in "hell hole" venues). For purposes of this brief reflection, we assume that the judge is not so beholden to opposing counsel that the fix quite simply is in. (In such court/opposing lawyer scenarios the company is left with little choice but to "try the case for appeal" - a truly unsavory, if necessary, notion.

  1. Voir dire: The "usual" approach is to have local counsel handle this, because he/she supposedly will know the personalities in the venue and be sympathetic with them. I respectfully disagree. Lead out of town should voir dire the jury, because that is the best chance to establish at establishing that he or she can "talk" to the locals, more importantly, will "listen" to the locals and most importantly, is a credible, decent person.
  2. Opening statement. I strongly favor having local counsel handle this portion of the trial. This is the first "formal" part of the proceedings and the jury will see it as quite important. Having the local lawyer make the presentation should erase any doubts in most jurors minds that the local lawyer is just on board for show. Additionally, it can be very persuasive with jurors in difficult venues, if a lawyer from their area passionately and credibly states that he or she believes in the righteousness of the company's case.
  3. Fact Witnesses and "local" experts during plaintiff's case in chief: A division of labor is in order here. A general rule of thumb that seems to get results is to have the company's out-of-town lawyer take the few truly critical witnesses from this group (i.e., the plaintiff or his/her parent(s), any local accident investigator, etc.) and have the local lawyer handle all or most of the others from the community, who take the stand.
  4. The company representative (and other employees) - whether called in plaintiff's case-in-chief or the company's). While a great deal of attorney and witness preparation will be necessary, I strongly favor having the local lawyer question these witnesses. If the jury has shown affinity for that lawyer, for him or her to "sponsor" employee witnesses can be very beneficial to the outcome of the trial.
  5. Plaintiff's liability experts: Cross examination of these characters most often is best handled by the lawyer with the most experience with the product at issue and/or who has previous experience with the expert(s) on the stand. The reasons for this are obvious.
  6. The company's case in chief. In most trials, but perhaps particularly those in difficult venues, less is more (or at least should be). If the sense of the defense team at the close of the plaintiff's case is that substantial proof needs to be presented, trouble looms, and to think that a parade of defense witnesses can save the day is probably wishful thinking. In my experience, successful results in most product liability cases (and, indeed, tort cases as a whole) even in challenging venues - are achieved through effective cross examination during the plaintiff's case. If "that" has not occurred, it probably is time for the company's team to try and cut losses.
  7. Closing argument: I go with general approach here - having the lead attorney, who has historically represented the company, close the case. However, no case - and especially those in challenging venues - should be tried wearing blinders. If for whatever reason, the jury appears to have bonded more with the local attorney, it may be wise to put national, regional or whatever counsel's ego aside and have his or her co-counsel from the area conclude the case.

There is So Much More to Cover
Space constraints require the foregoing to be superficial, although hopefully, somewhat instructive. Not addressed above are approaches to discovery, motion practice, demeanor in the pre-trial stage, the situation when the insurance company is calling the shots, and other issues. Perhaps some day, a second writing will be in order.

In the meantime, let us close on this note. Suits in hell hole venues differ in several, although not all, respects from those on level playing fields. An effective, forceful team approach - and the containment of egos - are critical. A good degree of fearlessness - not to be confused with foolhardiness - is essential. Plaintiffs' counsel must be convinced that the company will try the case and the company must be willing to try the case to a verdict, if necessary. Short of that, the most likely outcome will be a settlement that is probably as distasteful as any adverse verdict.

Article By:
David Olson, Partner
Frilot LLC
dolson@frilot.com

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