Category Archives: 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.


The Seattle Times reports that a King County jury reached a unanimous verdict for the defendant after a seven day personal injury  trial, taking only 15 minutes to reach a verdict.

Disclaimer: The only thing I know about this case is what I read in the newspaper so I am using this as an illustration and making assumptions in an effort to learn from this event.

The newspaper reports that plaintiff was a 51 year old woman who sued the city of Seattle asking damages for injuries suffered when the police handcuffed her after a hit and run incident. She had been arrested after two Seattle police officers responded to a report of a hit and run collision involving her company van and a  parked car. She was arrested and charged with hit and run of an unattended vehicle. She claimed during the arrest the police “yanked” her right arm behind her back causing excruciating pain and seriously damaging her right shoulder. She was a janitor and claimed that the injuries incapacitated her so that she could not mop, wax, vacuum, garden or make her bed. She testified that she needed help from her husband and daughter to do basic tasks almost every day. She claimed disability in her right shoulder, arm and hand.

According to the newspaper there were some significant problems with her case.  To start with, there was a patrol car video.  The video did not show her being handcuffed, but it did show her sitting calmly on the bumper of the patrol car and then being equally calm in the back of the car. She did not appear to be distressed or in pain.

In addition,  the plaintiff was born in Bosnia and had difficulty with English. But, apparently the most damaging part of the defense was a video taken of her by a private investigator hired by the city. The video showed the plaintiff driving, shopping, pulling open a glass door with her right injured hand and carrying packages in her right hand as well. She was videoed carrying numerous large bags in her right hand from a store to her car.

It is significant too, that her lawyer asked the jury for $1 million dollars which the jury took 15 minutes to reject and to reject her entire case.

Here, the plaintiff was suing the police for abuse. No matter what the publicity about police abuse there remains a sizeable percentage of jurors who generally believe the police can do no wrong and only guilty people get arrested.  They deserve  what they get in these juror’s minds. I think you start with a  difficult job in voir dire finding jurors who are not biased in these cases. The problem is you don’t have enough time to do a proper job.

Immigration is a hot stove issue in this country. We have a woman who wasn’t born here and doesn’t speak English well. That’s enough to light up a bias in  a number of jurors. This too, is something that needs to be discussed in  jury selection  and covered in your case in chief.

What about the video’s that were shown to the jury? Nothing  is  more damaging than a claim of  serious injury and photos immediately after the claimed injury, at the scene, which show otherwise. What are you going to believe, the physical evidence or  explanations? Here is a subject  that needs to be opened by the plaintiff in jury selection and covered in opening to inoculate against the jury reaction. But, on top  of that we have a private investigator videoing her doing things she claims she can’t do.

The fact is we have to deal with secret videos more often these days. The key is early discovery of their existence and the discovery deposition of the investigator. Next, we need to fully explore the issue in jury selection plus deal with it in opening by showing it yourself and inoculating against the drama of seeing for the first time. We need to show it to the plaintiff in direct and ask about it. It becomes a race to tell the  truth first with defendant. And, if a poor job is done in these regards, a request by the plaintiff for an amount large enough the jury finds it really inappropriate you get an emotional backlash from the jury.

So, based only on my description and without knowing the actual facts, we have a case of non fracture and what is essentially a soft tissue damage claim which drug  out for seven days. A woman who appears  to have been dramatically impeached by video and who doesn’t speak English well to explain it. A suit against the city and its police asking $1 million dollars. Tax payers on  the jury  and really difficult issues. These facts require really careful and extensive discovery, motions in  limine, a skillful voir dire and a carefully focused  trial. Even then the odds are not good for the plaintiff. I’m sorry about the result  and would assume this was a case most lawyers  would  have trouble winning.


Don Keenan of Atlanta is known to every plaintiff’s lawyer in the country for his outstanding results and his years of sharing his knowledge with the plaintiff’s bar.  He’s been a friend for over two decades. I’ve known him through organizations (we both have served as  president of the Inner Circle of Advocates) and through our proffesional work. I always have admired his cutting  edge thinking and his willingness  to share with others. I am a big fan and read his blog regularly . . His  most recent posting about short trials, written by David Ball,  really made sense  to me and I asked him if he would let me reproduce it. He agreed and I have done so. Any spelling erors or typos are mine. I recommend David’s wisdom on this issue to you.

Here’s some background about Don:

Children’s Lawyer
During his thirty-five years specializing in catastrophic injury and wrongful death cases, Mr. Keenan has secured over 257 verdicts and settlements over $1,000,000 including nine over $10,000,000 and one over $100,000,000. Mr. Keenan has dedicated his practice to child injury and wrongful death cases arising from medical negligence, products liability, and premise liability, with the goal of making our society safer for children.  He has handled cases in 47 states and on three continents.

Don has appeared on every major national news program including: 60 Minutes, 20/20, Larry King Live, The Oprah Winfrey Show, Montel, The O’Reilly Factor, the Today Show, Good Morning America, CNN and National Public Radio (NPR) addressing children’s issues.

Professional Accomplishments
In 1992, he became the youngest National President of the American Board of Trial Advocates and during his tenure, led a delegation of lawyers to Czechoslovakia and later was invited to Russia to produce the first civil trial in the history of those two emerging democracies. In 1997, he became National President of the Inner Circle of Advocates, the most exclusive group of trial lawyers in the country. In 1999, he was given the prestigious Chief Justice Award for Civility and Professionalism, the highest award possible for a lawyer in Georgia. He now serves on the Advisory Committee for the National Judicial College in Reno, Nevada, which trains the majority of new judges in the United States. In 1990 and again in 1992, he was named Trial Lawyer of the Year.

Significant Cases
Don successfully handled the 1980’s U.S. Supreme Court case of Kathy Jo Taylor which was the first case in United States history to establish due process rights for foster children. Again in late 1999 he handled the nationally publicized case of Terrell Peterson, an abused foster child, who was on the cover of Time Magazine (11/2000) and was the subject of the highest rated 60 Minute story of the year. Both cases resulted in significant changes in the rights of children in state custody. In 2006 he obtained the largest US jury verdict on behalf of an abused child.


                         LENGTH OF TRIAL (c)

                               By Don Keenan

The Reptile’s © attention span is short. In the world of Reptilian© survival, impact must be short and sharp. Karate, not massage.

Of course there have been many huge verdicts in long trials, and many great attorneys have spent entire careers doing long trials. But length of trial is rarely, if ever, a factor in the success, and in all likelihood, kept the successes from being even greater. And long trials kill a lot of winnable cases. This is especially true if you’re not one of the very best trial lawyers. Except in Lake Woebegone, the kids are not above average.

“Long” always means dulled impact, whether in church, a theater, school, and, above all, in trial. You can do everything else right, but when you do it longer than necessary, the rights go wrong. Jurors don’t want to help anyone who wastes their time, and if you make a trial go longer than a handful of days, you are wasting their time.

Length of trial hurts most when relying on the Reptile©. To survive, the Reptile© had to evolve as a sprinter, not a long-distance runner. This is why humans are better at short-term safety (they’ll stomp a spider) than long-term safety (they’ll smoke).

Your need for brevity attaches to every separate piece of trial as well as to the whole. There’s no such thing as a great day-long direct exam, or a great 75-minute opening, or a great but long

cross. Doing something superbly for 30 minutes is dynamite. Doing it superbly for three hours is a waste of superb.

Yes, Virginia! Over my 25 years as a consultant, almost every trial I’ve worked on in my neighboring state of Virginia – and many others there – has been brief, usually four to six days (often three) from Voir Dire to Verdict. They all did better than I’d have expected them to do elsewhere, where lengths of trial tend to be two or three times longer and more. This is not because Virginia – a contributory state among other horrors – is easy for plaintiffs. It’s maybe easy for (some) lovers, but not plaintiffs. Adjusting for quality of lawyer and nature of case and jurors, the variable that comes up among the most often – in Virginia and elsewhere – is length of trial.

Virtually no case – even including complex commercial cases – benefits from length. When you cover every single doggone point in the thoroughness law school taught you to do, you bury your strong points and let your weak points blossom to fullness in extended jury perception. In boxing, it’s hard enough to knock an opponent down for a ten-count, so why invite a 20-count or 50- count requirement?

Here are some reasons why long trials are the enemy:

Burial. Inescapably, the longer your trial, the more your important points are buried under piles of junk, and junk is the Defense’s best friend. Not only does the defense get paid more for length, but length vastly increases their odds of doing well. They want you to heap all you can into trial. They bait you into doing so. And they know that time – all by itself – is part of the heap.

Emerging Weaknesses. Like zombies slithering up out of graves, the longer your trial the more time you give weaknesses to emerge and take gargantuan focus.

Novelty. In longer trials, the strongest defense material necessarily emerges later – where, by its novelty, it gets more attention than a brief plaintiff’s case would have allowed. The Reptile© rivets onto novelty, and in a short trial, all the novelty is all yours. In a long trial there’s a whole new phase of novelty – and it belongs to the Defense, not you – when the Defense finally starts its case.

Internet. My partner Artemis points out that trials are often lost for no better reason than weekends, especially multiple weekends, during trial which give jurors plenty of extra time to surf the web. Which they do and nothing can stop them. With more time, they’re more able and likely to find bad, often false stuff about the science, the witnesses, the lawyers (including you or creeps with your name), and God knows what all else. This happens even when jurors go on line to find stuff to help your side. Sure, jurors go on line about the case even during short trials, but the time they spend increases exponentially as the trial days drag on. So if one weekend during trial is bad, a second weekend is several times worse. And allowing a third weekend is reckless. (See “Virtual Reality” in the Appendix of Ball on Damages 3.)

Attention gaps. Even on the first day of trial, juror attention is sporadic (though when you do it right, they pay nearly 100% attention to your opening). Attention diminishes significantly over the first two or three days of trial, and then abruptly plummets. You might not notice because 1) you might not keep a close enough eye on jurors and 2) jurors are great at looking engrossed when they’re actually disengaged. And when something important for your side comes up when a juror is disengaged, it can’t register. So it won’t be in the juror’s mind when you need it to be: during testimony. Injecting it as a reminder in closing is too late, because jurors discount most of what they first register during closings and deliberation. Good stuff they didn’t register in testimony is likely DOA when they first register it in closing or deliberations.

Attorney fatigue. Artemis will be writing a future blog on attorney fatigue. For now, I’ll just say that the longer the trial, the less physically and mentally able you’ll be to do your best, or even decent, work. Your perceptions and judgment will be way off peak. This phenomenon affects your side far more than the defense. When you make trial a lawyer-endurance run, you’re your own victim.

Judge’s impatience. Judges want you to move quickly. The longer you make your trial go on, the less hospitable the judge may be to making decisions your way. This is a particular disadvantage early in the Defense case-in-chief, when the judge has not yet developed the same level of impatience with the Defense.

Cost. Given the benefits of short trials (see below) and the disadvantages of long ones, your time and money for longer trials are mostly wasted. If you have to pay your expert’s rate for two days on the stand, it’s only because you didn’t take a half day of effort in advance to figure out how to get him on and off in two hours. (And shorter direct almost always means shorter cross.)

Human decency. Why force a jury to sit through a long trial when a long trial will likely hurt you? Are you nuts?

A trial is not Waiting for Godot. A “Who the hell cares?” attitude creeps in faster than you think, because habit, as Godot’s great playwright – Ireland’s Samuel Beckett – said, is a great deadener.


Jack Spratt could eat no fat. But he gobbled up the lean! Every juror is Jack Spratt. Lawyers always think they understand their cases, but they don’t really until they’ve separated the fat from the lean, and 100% junkcan all the fat. The very process of doing this is essential to fully understanding your case. It takes a lot of work, which is why only a small percentage of lawyers do it.

Holds juror enthusiasm. Your well-done opening statement creates enthusiasm: the Reptile© is fully alert. But as your case-in-chief drags on, juror enthusiasm wanes. The Reptile© snoozes. And the Reptile© is hard to re-awaken. Only a quick

in-and-out holds the jurors’ enthusiasm and the Reptiles © full participation.

Wider choice of jurors. The shorter the trial is to be, the fewer jurors are removed for hardship. So we have more to choose from. More choice helps us, not the Defense.

Blaming the Defense. Juror irritation at having to sit there day after day is directed at whoever started taking too long. So when you do your case quickly, juror irritation focuses on the Defense.

Pride of work. Long trials never show you at your best. So even though long trials often do well, your odds are far better in short ones. When gauging how much time to spend on each piece of trial, whatever you think is little enough is probably several times too much.

More is less. Extreme more is nothing. As King Lear exhorted, nothing comes from nothing. And yes, of course you can’t control length completely because the Defense will try to make it long. Let ‘em. It’s your case we want short. And it’s hard for the Defense to go on forever when you’ve been brief.

Caveat: Short trial does not mean to talk fast. No one loves a fast-talking lawyer. Short trial means to include a lot less. By definition, you never need more than the essentials. Your most important skill lies in knowing what’s essential. It’s never much.