TRIAL LESSONS FROM A RECORD VERDICT OUTCOME

# TRIAL LESSONS FROM A RECORD VERDICT OUTCOME

Shanin Spector is a partner in the Pennsylvania firm of Klein and Spector. Both are members of the Inner Circle of Advocates with multiple jury verdicts in excess of a million dollars. A book has been written about a trial Shanin Spector tried involving the death of Carrie Goretzka. The book, Danger Above tells the story of the 2009 electrocution from a downed power line and the verdict in Pittsburgh Pennsylvania. Here are some passages from the book I felt were significant for us to consider as plaintiff trial lawyers.

Spector carefully prepared his opening statements with a written script. It was coordinated to his PowerPoint or other exhibits he intended to use. He practiced giving the opening statement on a repetitive basis and revised it as needed. His trial aide using the equipment followed the script and is ready to immediately display whatever exhibits are provided for in the outline. His openings are organized and totally thought out for maximum impact. Since opening is a first impression of the facts, being prepared for it seems to me to be really important. Organization also suggest you know what you are talking about.

I thought his idea of using the phrase “is that fair?” was very interesting. The author says he favors “is that fair” as a way of eliciting a positive response from a witness who did not want to say, or acknowledge, what Spector really wanted – a simple “yes.” He believes saying that something was “fair” set a lower threshold for an affirmative response. It offered a compromise of sorts for a witness who refused to fully capitulate. It provided a graceful way out: “all right, you don’t want to give in on this point, but would it be “fair” to say such – and – such?” Spector found that often a witness who refused to concede completely would agree that a point made by the lawyer was at least “fair,” which he knew translated to a jury in a basic form as “yes.” It allowed witnesses to salvage some pride, providing a little wiggle room even though they were essentially surrendering the point.” It’s a thought worth considering as a tactical device on cross examination.

I was intrigued by the negotiation involved in this case which continued right up to the moment of final argument. After it was believed a settlement had been reached, one of the insurance companies made a dumb decision to withdraw an offer resulting in total disaster for them when the verdict came in. I was amused by Spector’s analogy of insurance companies often doing illogical things in negotiation over the wrong issues.

According to the book, in commenting about insurance company illogical negotiation decisions, Spector often cited the scene from the movie Dr. Strangelove where Peter Sellers, in the role of Capt. Lionel Mandrake, needs to make an urgent call to the president of the United States. A rogue Brig. Gen., Jack Reppert, has ordered a nuclear air attack on the Soviet Union and he is calling the president to stop the attack. However, when he tries to use the pay phone, he’s $.20 short so he orders his escort, played by Keenan Wynn, to shoot the nearby Coca-Cola machine in order to get the coins he needs. Wynn’s is very reluctant to do that and finally tells Mandrake “Okay, I’m going to get your money for you. But if you don’t get the president of the United States on the phone, you know what’s going to happen to you? What? Asked Mandrake. You’re going to have to answer to the Coca-Cola Company.” Wynn’s illogical greater concern about the Coke machine owner’s anger over a Nuclear bomb attack does illustrate the often mixed up priorities of insurance companies in settlement negotiations – too often concerned with irrelevant issues like saving face over financial disaster. As a basic theme, Spector used this concept: “This woman was minding her own business, taking care of her children, thrust into an emergency not of her own making, killed in her own back yard, by a power line that fell on a clear, sunny day, through no fault of her own. He emphasized it in summation and Spector would repeat the phrase “on a clear sunny day” six times in the first few minutes of the speech. Using this theme, he told the jury: “Res Ipsa Loquitur” is Latin for the thing speaks for itself. We learned it in the first two weeks of law school. I could have tried this case very differently. I could have simply proven that it was a clear, sunny day and the line fell. I could’ve relied upon that fact by itself. I don’t have to prove anything more.” Then he went on to tell the jury about the facts of the English case which created the concept that he had learned in law school. A barrel fell from a second-floor window and hit a pedestrian. Nobody knew how or why and it didn’t matter. “It’s unimportant. The person who owns the property has responsibility to keep barrels from rolling out of the window. The mere fact that he was struck by barrel while walking down the sidewalk is enough. But we went further and showed you why it happened even though we didn’t have to do that.” Regarding proof of punitive conduct, he asked the jury: “What if someone is driving their car down Fifth Avenue, the main street in Pittsburgh, and looks down for a moment to fiddle with the radio dials and gets into an accident injuring someone. That would be negligence but not recklessness. But if that person decides he’s going to close his eyes driving down Fifth Avenue and he hit somebody, that’s recklessness and what we have here.” As to punitive damages, in Pennsylvania the plaintiff is not allowed to suggest a figure for punitive or compensatory damages. The power company’s net worth was$244 million and he used a comparison to the power company as a person with only $10 to their name regarding punitive damages. He asked: “Suppose you are called upon to decide how much you’re going to take from them in order to punish them. You could take a penny from this person who’s worth$10 (he put a penny on the jury rail) What will the person say who’s worth $10 from whom you’ve taken a penny? They would brush it off their shoulders like lint. Suppose you took a dime (putting a dime on the jury rail) what will they say? Well, it’s more than lint off the shoulder, but not much. Let’s say you take a dollar from them (putting a dollar bill next to the two coins) that probably hurts a lot more. Now I’m not suggesting you take 10% from them, which is what a dollar would be. Or 1%, which is what a dime will be. Or 1/10 of 1% which is what a penny would be. When I suggest to you is appropriate is to say: What would it take if it were a guy with$10 to make him feel it and to make them not do it again?”

It took just 90 minutes to render a verdict in a complicated case that lasted several weeks. The verdict was $48 million in compensatory and$61 million in punitive for a total of $109 million. Jurors afterward talked about “the clear sunny day” and using the$10 illustration to compute their punitive damages.

A great trial result from a great trial lawyer relying  upon hard work and preparation to achieve this result.

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