Author Archives: Paul Luvera


Ashley Parker in the October 5th edition of the New York Times wrote an article entitled Digital Ads Sell Candidates and Causes in 15 second Bursts.” She writes:

“Fifteen seconds is not a lot of time in this world of political advertising to make a compelling statement or share a riveting candidate story. But in the attention – deficit era of politics, with voters consuming more and more news on mobile devices, campaigns and the groups supporting them are devoting significant resources and energy to the micro ads that dominate the digital landscape. The result is an explosion of shorter, attention grabbing spots that have made political messaging all the more blunt and, at times, creative.”

The article points out that on television advertisers have more time to present a “hook” to capture a viewer but in the social digital world it is a matter of milliseconds. Therefore one has to be much more creative visually and with a very tight message with a hook that’s upfront to be successful.

The IAB research Council undertook a study of video advertising campaigns for a national retail brand. The findings of the study include the following:

  • 15 seconds appears to be in operable link for digital video. Five second spots had trouble conveying a message; while 32nd spots risk turning off a viewer waiting to watch something else.
  • 32nd spots too well at conveying a complex or emotionally resonant message, but work best in places where longer messages are appropriate.

The New York Times article says that while there is no single formula for success there is an agreement on several basic rules for grabbing voters attention. First is frontloading the ad by placing the most important message in the first few seconds. It is important that there are dynamic visuals, eye-catching graphics and compelling music to help attract at to and keep attention. The content that works best in shorter form is content that smart, funny and inviting. In addition, just like television, the article points out that content reigns supreme. As one political consultant is quoted as saying in the article: “you can make any 15 second ad you want, but if they’re boring, and people are just overwhelmed with the amount of advertising out there, then they’re not going to stick out. That is part of the blessing and the curse of the actual ad format online. ”

Certainly it makes a difference as to the generation the listener or viewer falls into. The short attention span is most common among the younger generation who have largely abandoned printed newspapers and printed books for all things Internet and digital. They even prefer to watch television not on television sets or large screens but on various digital devices.

However, it seems clear that almost all Americans have come to expect and demand brief to the point information. They want sound bite information. They expect the news headlines to be a minute and a half in length with visual. They want the information upfront in the first paragraph and are not inclined to read the background information.

Retail sellers and politicians are usually the first to realize a change in how to communicate with customers and voters.Those of us in the trial profession seem to be the last to be willing to change our communication style to meet the demands of the people who end up on our jury. We continue to do what we’ve always done which is to talk too much, too long and being too complicated. Applying these lessons of brevity and attention getting opening to communication is foreign to our training and our belief that people are intellectually analyzing the information we are presenting. In the meantime politicians and marketing experts apply the research by accommodating the present demands of their listeners. They do this through communications which attracts attention and appeals to the subconscious impressions that really persuade all of us.

As trial lawyers we need to consider the demonstrative evidence we present to see if it conforms to the expectations of the 15 second digital ad. We need to talk to jurors with these ideas in mind during jury selection and make opening statements that are evaluated from the standpoint of this new information. When we present our witnesses and when we cross-examine witnesses we should have these ideas in mind. Our trial communications should be in conformity with  research about today’s juror expectations in communications. A bored jury is not usually a friendly and generous jury. A bored jury is one that has stopped listening long before the end of the trial.


The Huffington Post has been publishing Steven Brill’s writing about Johnson & Johnson’s Risperdal product and the litigation involved. If you haven’t read it you should. It’s very well written and informative. See it at: 

The product resulted in major litigation. For example, the nation’s largest nursing home pharmacy, Omnicare Inc. of Covington, Kentucky paid  a $98 million penalty for accepting  kickbacks from Johnson & Johnson in exchange for agreeing to recommend that physicians prescribe Risperdal to nursing home patients.

And in November 2013, Attorney General Eric Holder announced the Justice Department’s $2.2 billion settlement with Johnson & Johnson for  wrongful promotion of the drug for children.

Brill’s report describes the case of Austin Pledger, an autistic child who took the drug and suffered the side effect of developing large breasts. His trial was in Philadelphia. Plaintiff  was represented by my friend, the outstanding plaintiff’s lawyer, Tom Kline. The company was defended by Diane Sullivan a partner at Weil, Gotshal & Manges, a 1,100-lawyer Wall Street firm.

Brill says the jury was made up of six men and six women, of whom 11 were African American and one was white. They included a security guard, a clerk at Macy’s and a nurse’s aide. Their job was to answer two questions: 1) Had Johnson & Johnson known and failed to warn Austin Pledger’s doctor that Risperdal was dangerous when taken by children like him? 2) Had that failure to warn caused Austin’s injuries?

The discovery documents were voluminous. Johnson & Johnson turned over some 3.5 million documents containing 21.7 million individual pages. The discovery information revealed considerable improper and even illegal activity by Johnson & Johnson regarding the product.  For example, as plaintiff’s lawyers, we know that medical articles regarding drug products are subject to suspicion about ghostwriting and faulty research when funded by drug companies. This case demonstrates this fact. Johnson & Johnson had signed a contract with a company called Excerpta Medica. Its specialty was medical marketing. Its sub-specialty was producing ghostwritten, data-filled studies on the efficacy and safety of a client’s drugs, finding the right academic scholars to be listed as the authors and then placing the articles in prestigious academic journals.

What was also interesting was the comments by the foreperson about the trial. I’m quoting some examples in this post and here is one impression. The former head of the FDA testified for plaintiff and was a powerful witness.  Brill reports:

“Kessler’s testimony about the manipulation of the numbers was not lost on the jury. “Kline showed it to us pretty clearly with the FDA guy,” a woman who became the jury’s forewoman told me later. “He just repeated it over and over and there was a chart of some kind that he used. .. You could see what they had done.  I thought he was by far the best witness.”

Note her comments about showing his point “clearly” and using a chart to explain while he “repeated it over and over.” He was a good expert witness because it was clear and simple plus explained instead of rushing past the point.

During trial Sullivan had raised an unexpected legal objection to the Plaintiff’s medical doctor who had examined the child and was going to testify about his condition. That forced  Kline to find and produce a last minute substitute, a plastic surgeon, with experience in this area of medicine. When Sullivan attacked him in argument for lack of credentials and the failure of plaintiff to find a specialist in this particular area to testify. Kline immediately objected given the fact the defendant had kept the experienced witness from testifying just before being called.  Brill reports:

“This time, the judge lost his cool: “The conduct by the defense on that entire episode was very, very disturbing.” He sustained the objection and advised he would instruct the jury on this issue given Sullivan’s improper argument. As a result, he instructed the jury:  “it was suggested to you again by Ms. Sullivan that the plaintiff could not produce an endocrinologist and suggested that they could not because they could not. You are instructed to disregard that line of argument in its entirety as it is not accurate and its disingenuous based on matters of law that occurred outside of your presence.”

Kline used photos of the child, before and after, to show the deformity. This impressed the jury foreperson and reminds us of the importance of compelling demonstrative evidence.

“The pictures, I think, made an impression on all of us,” recalls the forewoman of the jury. “I still remember them.”

As a reminder that cross examination doesn’t have to be “cross” and that we should adjust our demeanor for the witness involved, Brill talks about the mother’s cross examination. Sullivan read parts of the child’s school reports to try to show the drug had helped the child.  She would raise her voice when she read the reports as if she had caught the mother misrepresenting the situation. The foreperson’s reaction was not favorable:

“I thought the mother was quite brave to subject herself to all of this,” recalls the jury forewoman. “I felt bad for her.”

The first rule of communication, for lawyers and witnesses, is to listen carefully. The second rule is what you say must be clear, understandable and brief.  Johnson and Johnson’s key expert violated that rule when he tried to explain why tables weren’t really in conflict. The foreperson’s impression was not favorable.

“I never got the Johnson & Johnson scientist’s explanation of the numerator-denominator percentage thing,” she recalls. “I didn’t know what he meant.”

There was an issue of whether Johnson and Johnson had withheld information from the FDA and the significance of testing shown in tables about the studies done. Note that during cross examination Kline used the tried and true whiteboard, Brill reports:

“He wrote Caers’ answers on a whiteboard for the whole courtroom to see. He then got Caers to concede that all but one of the gynecomastia cases had turned up among the children in the smaller subset of long-term studies. That meant that a truly relevant sample—children taking the drug long-term.”

What happened on re-cross was powerful. Brill says Kline shot up from his chair and asked:

Kline: Sir, table 21 was not given to the FDA?

Caers: That’s correct.

Kline: Wow!

Sullivan: Your honor, I object to the interpretation.

Brill reports about this exchange:

“According to an experienced lawyer who was in the courtroom but was not allied with either side, “That moment seemed like a big surprise to the jury—that after all he had said about all the studies Janssen had turned over to the FDA, that he had never turned that one over. … There was a pregnant pause after that.

The jury forewoman agrees. “I thought that was really important, when he said he had thrown out that study. … What this was really about, was that you can’t keep testing over and over again and then use the results you like and throw out the rest.”

Here is what Brill reports about the foreperson’s impression of the lawyers. There is a lesson here:

“We thought that Kline did a really good job communicating with us,” says the jury forewoman. “Sullivan tried to, but she was too harsh at times. She badgered people, and kept going around and around when she questioned someone and got an answer she didn’t like.”

The jurors spent one day reviewing the evidence. The next day they voted 11-1 the company had failed to warn and that was the cause of the child’s injuries.  The dissenting juror argued that it was the doctor’s fault in prescribing the drug. What Brill reports about the deliberations is also revealing. Keep in mind since punitive damages were not involved plaintiff is not permitted to suggest a figure for the jury to award as a verdict. They were not given a non economic recommended verdict for that reason:

“That afternoon, they debated how much Johnson & Johnson should pay Austin’s family. Some wanted to award as much as $5 million; others favored a far lower sum, even below a half million dollars. Soon, they focused on what they thought would be Austin’s 50-year life expectancy and began to calculate what he should be paid per year. Dividing a hypothetical total into 50 parts seemed to make everyone more comfortable with a relatively high award. By Wednesday morning, some of the jurors urged the others to consider that the lawyers, as the forewoman puts it, “were likely to get about a third of the money, and we needed to take that into consideration. … We spent a lot of time trying to calculate that.”

Just before lunchtime, they arrived at a figure: $2.5 million, which worked out to about $33,000 a year after the expected 33 percent in lawyers’ fees. The jurors sent word that they had reached a decision.”

I recommend Steve Brill’s excellent writing and research about his drug. It is as informative and well written about pharmaceutical litigation as anything I’ve read.


From time to time I give advice to plaintiff  lawyer friends regarding their cases. (sometimes when I’m  not asked) I thought I share some general responses I’ve given recently as way to stimulate your own ideas about these issues. Here they are.

A lawyer who had a medical malpractice case against a midwife for shoulder injuries at birth asked a group  of plaintiff  lawyers what we  thought of his chances and the damages after he outlined the facts to us. Here were my thoughts.

I don’t have the answers but I do have some gut reactions for what they are worth:

I think the best way to get answers to your questions is a “silent” focus study:   Short video without sound along with a time line plus key clinical records.  This would be presented without argument or supporting facts. Just the basic fact pattern without details and without any lawyer argument. It should be given to a group in the county where the trial will take place after which you give them just your  questions in writing and before discussion. That would be a whole lot more reliable than asking a biased group of plaintiff lawyers for their views.

I also think you should consider progression drawings where you show child with this injury from birth now and into old age. The  cute little baby has a different view  than  the adult and elderly person he or  she becomes with this injury.

I think a midwife  case like this one has two opposite poles – negative and positive. On the one hand,  a good number of people have the idea it is risky to not have a physician deliver a child and a midwife is seen as less than competent. On the other hand, those same people will tend to blame parents who they see put themselves at risk by going to a midwife instead of an OB at a hospital. The more you paint the midwife incompetent the more you generate defensive attribution “I would never have done that…”  It requires excusing parent’s selection and trust in midwife while proving case vs midwife. You need  to do both.

I think these cases require an open discussion approach in voir dire about key issues such as using midwifes, the usual malpractice issues and about this kind of injury rather than a closed end demographic inquiry.

I also believe the best chance of winning these kinds of cases is proof of a gross betrayal of trust. Proof the parents were deceived into putting their trust in an incompetent person who was motivated by money, pride or other wrong motives for her actions is your goal. That’s because medical mistakes will be forgiven, even if you prove they were mistakes, by jurors in this county and most anywhere else. Betrayal of trust for wrong motives will be punished. The theme should be reasons that were a lot more serious than medical mistake or negligence in order to win.

As to the damages, the obvious problem is this is a suit only against the individual midwife and there will be a perception of a lack of deep pockets so that unless the jury wants to punish for serious breaches of trust they aren’t motivated to pay more than the bills. Only juror anger will drive a large verdict against a single midwife defendant.\

Later the lawyer  in the case was offered a settlement by the insurance company. Here’s my advice in that regard.

Well, that’s more than a nuisance offer so they do have concerns. One wild card is the negotiation process. Our best settlements are made the closer we get to trial, but always balancing whether there is a risk of withdrawal of the offer. My own reaction  at this stage of the case was to take a hard stand sometimes even into trial because my gut was they were testing me and clients.

Beware of self-righteous and inexperienced court appointed guardians who sometimes get involved in this process.  They often try to interfere in the negotiation process  when they lack knowledge and experience to do so.

As to the offer, we both know the evaluation process. The questions are: What are odds of winning both liability and causation? What is likely verdict in that county if case goes well? Comparing the two results in a settlement range. On a practical level one must also consider: What are the cost advanced and liens due others considered with fees resulting in what net amount to client? What referral or other fees owed which determine net to lawyer?

Keep in mind in a case like this with a minor  as plaintiff reduction of usual  40% malpractice  fee is  likely, either voluntarily or by court involvement when you ask for approval of minor’s case.

As to liability, I don’t have a good feel on this but have the idea the defense is weak on its causation defense. As I’ve indicated before, the liability and damages will be driven by the degree to which the jury is upset by the conduct of defendant. Really angry jurors increases both liability and damages by a significant amount. Having them less upset but upset with the midwife’s  conduct still helps liability and causation but usually means a compromise verdict amount. If they see this at most as only a medical mistake you will probably lose the case or get a much compromised verdict.

My view was to always consider the settlement offer from the viewpoint of the client. Can the client afford to gamble? Will the net amount make a difference to them or is the amount small enough the gamble isn’t very large? Is the amount offered small enough that it dictates going to trial even if risk involved? Or is the case risky enough even a less than expected settlement is better for the client. With minors this decision is always more difficult. Whatever you decide be sure to cover yourself with fully informed clients confirmed in writing.

In another case, the lawyer had an employment suit in federal court where the client had been induced to retire early, but without disclosing that remaining longer would result in the right to a much larger termination package. My thoughts  were these:

You have two polar points in your case. One good and the other negative.  The good point is the financial motive of the employer to cheat your client and the other is the fact your client was “dumb enough” to be taken in by it.

You need to inoculate jury for idea client got what they deserved because they were negligent in not learning what they would have received under the rules before agreeing to retire early for the bonus they offered. Or, as it is technically called “defensive attribution” which is the idea by the juror:  “That would never have happened to me. I would have …….” Obviously, this always means starting the story with the defendant and the defendant’s actions, not the your client’s story.  Only after a thorough story about what a thief defendant is do you say anything about client’s actions and then you explain how they were taken in.

I would adopt a theme for this case and follow it from voir dire to argument based upon dishonesty of the employer.  If you had voir dire the questions I would ask open ended questions about their feelings regarding truth and honesty  like what they would want to teach children about honesty, their  feelings about people who steal etc.

And in opening I would  repeat the theme with something like:  “this is case is all about whether an employer can plot a way to cheat an employee out of money rightfully theirs and get away with it.”  Every witness should involve questions around the theme. I’d also think up some “rules” questions you don’t care what the answer might me. For  example:   “In your business experience  is it ever OK for an employer to deliberately figure out to cheat an employee  out  of what  is rightfully due them in compensation?”

Instead of spending time covering details like contract provisions, dates, and  the like,  I  would never leave that main theme. I would make the theme the beginning, middle and end of every witness doing only a minimum on legal proof to avoid dismissal.  I believe you adopt that point as virtually the sole point in your case and throughout the case. I don’t think you can be timid about this. It  doesn’t work to sort of mention it and then be intimidated by the strong accusation involved. I think it has to be a courageous “in your face theme of cheating an employee” if  it  is going to create the outrage you want from the jury.

The good news is that when the motive for wrongful actions in a trial is obtaining money dishonestly that causes one of the strongest negative reactions which is actually Biblical: “Thou shalt not steal.”  It is a commandment of God and we learned it in childhood. It is a universal moral rule. In addition, we have a  huge emotional trigger here because they cheated this person out of money that was rightfully his.

I think you have a chance for outrage here with major betrayal of trust and real anger in response calling for severe punishment. Capitalize on it is my suggestion.