BET-THE-COMPANY LITIGATION:
HOW TO WIN LARGE EXPOSURE
CASES AT TRIAL
LGL007
Speakers:
• Bob Tyson, Managing Partner,
Tyson & Mendes
• Ellen Vinck, Director – Risk Manager,
BAE Systems Ship Repair, Inc.
• Mark Calzaretta, Vice President of Litigation
Consulting, Magna Legal Services
LEARNING OBJECTIVES
At the end of this session, you will:
• Anticipate effective themes and strategies used
by plaintiffs’ attorneys.
• Identify your ideal jurors.
• Trace the ways you can control the trajectory of
a claim, even during trial.
DECODING THE #1 THREAT TO YOUR
COMPANY IN LITIGATION: PLAINTIFF’S
ATTORNEY
Why do plaintiffs have the upper hand on arguing damages?
• Emotions (Sympathy)
• Injuries
• Themes
• Justice
Plaintiff’s primary tactics to get large jury verdicts:
• FEAR
• ANGER
REPTILE THEORY IN A NUTSHELL
• The “Reptile” is a primitive, subcortical region of brain that
houses survival instincts
• The “Reptile” senses danger  goes into survival mode to
protect itself and the community
• The courtroom is a safety arena
• Damages enhance safety & decrease danger
• Jurors are guardians of community safety
• “Safety rule + danger = reptile” is the core formula
PLAINTIFF’S IDEAL CLOSING
ARGUMENT
JURY SELECTION: LAST CHANCE TO
LIMIT YOUR EXPOSURE
• What is your #1 goal in jury selection?
• Who do you want on your jury?
− What are characteristics of jurors who award the most
and the least?
− Plaintiff’s ideal juror
− Defense’s ideal juror
• What questions would you ask a potential juror?
STRATEGIES FOR EFFECTIVE VOIR
DIRE
• Build a rapport with the prospective jurors
• Request that the Court ask open ended questions or
do so if allowed to follow up
• Make effective use of evidence
• What can you do as a risk manager?
− Real time juror reports
PURPOSES OF JURY RESEARCH
Discovery Phase
Early Evaluation Phase
Post Discovery Phase
• Evaluate themes
for discovery
• Evaluate early
settlement
desirability based on
early evaluation of
themes and
prospects of success
• Re-evaluate settlement
post-discovery
• Evaluate clients’ and
witnesses credibility and
likability to assess
settlement
• Evaluate lawyers for jury
appeal
• Finalize themes for trial
• Evaluate favorable and
unfavorable jury
characteristics
8
RESEARCH PARADIGM
1
2
Online Mock Trial
In-person
Mock Trial
Plaintiff
Group
Group A
$875,000
Group A
$10,075
or less
3
4
5
Study
Implementation
of Findings
Trial Verdict
672 Jury
Simulations
$500,000
Weighted Average
Crafting Opening
Statements
High: $1,000,000
Low: $4,000
Voir Dire Strategy
Balance
Group
$170,000
Group B
$100,000
or less
(7/10 jurors)
Group B
Graphic
Development
Balance
Group
$6,000
Group C
Jury Selection
~$27,000
FACT PATTERN
On June 14, 2007, Mr. Smith was injured while he was working at the New Jersey
Power Company (“NJPCO”) Mountainview substation. Mr. Smith, a 56 year old
journeyman electrician for NJPCO, was severely burned when he activated a piece
of high voltage electrical distribution equipment called a high voltage regulator in
the substation. The entire substation, including the voltage regulator, had been offline since it was damaged by a strong storm. Mr. Smith was leading a crew to and
bring the substation back on-line after the storm damage was repaired.
Thomas Energy, Inc. manufactured the voltage regulator. NJPCO designs its
substations and issues purchase specifications for necessary substation
components. A sequence bypass switch, a separate piece of equipment (not
supplied by Thomas Energy), interfaces with the voltage regulator.
FACT PATTERN
When a sequenced bypass switch is “closed,” current flows through the regulator
so that it can maintain constant output voltage. If the regulator is bypassed with
the tap changer in a position other than neutral, current will recirculate in the
voltage regulator’s windings. Recirculation superheats the insulating oil, which
then over-pressurizes the regulator’s containment vessel and causes it to release
flaming oil.
When Mr. Smith closed a by-pass switch to restart the flow of electricity to the
voltage regulator, the regulator exploded and Mr. Smith was severely burned. He
was hospitalized at UAB Medical Center and remained a patient there until he
died two years later.
Mr. Smith’s estate and his widow sued Thomas Energy, claiming the voltage
regulator was defectively designed, Thomas was negligent, and Thomas acted
wantonly. Thomas Energy denied the voltage regulator was defective. Thomas
claimed Mr. Smith’s own negligence caused or contributed to the accident.
SO HOW DO YOU WIN?
DEFENSE THEMES!
• What is a theme?
• A theme is a message that arises out of the evidence and characterizes
an aspect of the case which is consistent with your position and which
draws out a fact finder’s sense of values, beliefs, and morals. Every
work of art has a concept or “theme” that is the message that the artist
wishes to convey. Theme, then, is the message that gives meaning to
the audience. A theme may not even be expressed in exact words, but
is apparent from the message in the presentation.
• A theme motivates a judge, juror, or arbitrator to react in an
emotional or thoughtful way and to form a story about the case
consistent with the decision maker’s reaction. To judges, jurors and
arbitrators, the truth is more important than the facts. A theme is the
glue that holds the story together and gives it life.
WHAT IS A THEME?
DEFENSE THEMES
• Keep it simple and catchy
− “Just Do It”
− “You Deserve A Break Today”
• Tug at the jurors’ heartstrings
• Incorporate the jurors’ sense of fairness and justice
• Ensure consistent with the evidence
• Ensure is fits counsel’s capabilities
• Repeat it. Repeat it. Repeat it.
DEFENSE THEMES
• Responsibility
• Honor
• Reasonableness
• Truthfulness
• Common Sense
• A Greater Good
• Greed
• Do The Right Thing
• Road To Recovery
• A Life With Dignity
• Good News
• Oath
BAD TRIAL THEMES
• “Plaintiff Is Full Of It”
• “Plaintiff Is A Liar”
• “Everyone Knows a Chiropractor/Doctor
Bill Should Not Be $x”
ADDITIONAL ARGUMENTS
• Advance Themes With Every Witness
• Get To The High Road First
• Move Them To Action
GIVE A DEFENSE NUMBER!
• Even When Asking For A Defense Verdict!
• Early & Often
• Anchors the Jury
- Then Argue You Are Not Giving Them An Anchor
• Not Fair To Plaintiff To Give More Than $X
• Backhanded Reverse Slam
− Some May Think My Number Too Big