Category Archives: Random Thoughts

Ideas from a recent plaintiff’s seminar

I made some random notes at a recent plaintiff’s seminar I attended. I thought I’d pass them on for you to think about. I thought some of these ideas were particularly worth considering for further development. 

One speaker ran a research company that was constantly looking for new and imaginative ideas. The motto of the company was "invent, disrupt, inspire." When I heard that I thought of how that applies to trial lawyers. They must continually force themselves out of the rut of doing things the same old way and stay current with developments in communication. They need to invent to new ways of doing things and thinking about what they are doing. They need to disrupt the old ways just because they are comfortable and they need to be inspired to search for new and better ways of representing their clients.

Someone argued that their experience was that the plaintiff, at trial, needed to first "get liability down cold" before offering evidence of damages. Otherwise the jury remains skeptical and the damage evidence looks like a play for sympathy. That made sense to me as it is consistent with my belief you need to underplay damages in the voir dire and opening statement because the jury is not fully trusting of the plaintiff’s lawyer in the early stages of trial.

I laughed at the remark of one speaker who said his case was so thin that if you turned it sideways, it would disappear. Another speaker said that in his office, he was in charge of the clear liability cases. The same speaker said that his mentor had taught him "You must never let your face show that your ass is being kicked."

Those of you who have heard Gerry Spence speak know that his basic theme in defending criminal cases as well as trying civil cases is betrayal. He emphasizes a betrayal of trust either by those charged with safe care or a government that is supposed to act fairly and objectively. Betrayal is a powerful concept that goes against our core values. One speaker noted that in Dante’s Inferno the Ninth Circle of Hell, at the utter bottom, Dante describes the worse sin of all: fraud and betrayal of trust. Here, there are degrees of the seriousness of the sin. There is "ordinary" frauds down to the worse fraud of all, according to Dante, which is betrayal of trust by a benefactor. That is the worse, says Dante, because it violates a love that is purely voluntary. One who betrays one’s benefactor comes closest to betraying God directly because it resembles God’s love for us, Dante says. I identified with the speaker who, in describing this, said that of all the levels of hell in Dante’s Inferno, the very lowest level of all was reserved for those who had betrayed a trust. I thought of Gerry’s theme and how this idea fit it so well.

Another speaker was talking about the problem of representing people with pre-existing medical problems. He said that when the case "involves a fragile person, two plus two doesn’t equal four. It equals six."

A speaker from Florida was talking about a case where under Florida law the spouse of the plaintiff could not be comparatively negligent and the verdict form would not have a blank for that issue. Yet when they ran focus studies they continually had a bad result for plaintiff because the jurors felt he shared some responsibility. When he changed the focus presentation to allow an assessment of percentage of fault they results were very favorable to plaintiff with a small percentage of comparative fault to the spouse. The plaintiff filed a motion to add a blank for the spouse’s negligence and over objection of the defense it was allowed. The result was a very good verdict for plaintiff. This is consistent with the fact jurors want to do the right thing and it enhances the lawyer’s credibility when he or she acknowledges client responsibility rather then trying to deny it or hide behind a law which prevents it from being considered.

So there you are. Not profound perhaps, but thought stimulating.