In the first of three installments of his in-depth analysis of case evaluation and trial strategy, Johnson & Bell Shareholder, Charles P. Rantis, explores the critical importance of weighing intangible factors of a given case. He argues that these factors can impact defense counsel’s trial strategy and tactics as much as a mathematical methodology assessment of a potential jury verdict and monetary exposure. (Part Two)
The Process of Case Evaluation and Formulation of Trial Strategy
The process of case evaluation and formulation of trial strategy and tactics is ongoing throughout the life of a product liability lawsuit. As defense counsel, a great deal of time is spent assessing the significance of evidence obtained during the course of oral fact discovery and oral expert discovery. There are a multitude of factors which defense counsel must analyze and consider when providing the client with the final comprehensive evaluation and assessment of the case in advance of trial. This article provides a framework for defense counsel’s evaluation of the potential jury verdict exposure and a practical discussion of several trial strategies which impact the evaluation of the potential jury verdict exposure:
1. Plaintiff’s contributory fault.
2. The sole proximate cause defense.
3. Admitting liability and defending the case on damages only.
I. Framework for Case Evaluation for Product Liability Trial
Well in advance of trial, defense counsel should prepare a comprehensive evaluation and analysis of the product liability case. A clear and concise analysis of the strengths and weaknesses of the plaintiff’s theories of liability as well as the strengths and weaknesses of the theories of defense should be addressed in the evaluation. The evaluation and assessment of the potential jury verdict exposure is a two-fold methodology: first, a mathematical methodology must be employed as part of defense counsel’s comprehensive analysis. The mathematical methodology provides a road map as to how defense counsel estimated the exposure and arrived at the proposed figures. The mathematical methodology is as follows:
1. Gross verdict potential – Before any consideration of liability is made, what is the injury or death worth given the plaintiff’s demographic data and the particular venue.
2. Net verdict potential – The gross verdict potential is multiplied by the factor of 100% minus the percentage of plaintiff’s comparative fault to ascertain the net verdict potential.
3. Likelihood of defense verdict – What are the percentage chances of the defense winning the case based on the evidence and strengths and weaknesses of the contentions of the parties.
4. Relative culpability of the parties – In a multiple defendant product liability lawsuit, the client will want to know what its specific percentage of the exposure is compared to the other defendants and the third-party defendant.
5. Settlement value – The ranges obtained from the net verdict potential and the likelihood of a defense verdict serve as the lower limit and upper limit of the settlement range using the mathematical methodology.
However, there is a second aspect to this analysis. Other intangible factors must be considered as part of the evaluation of the potential verdict exposure and the settlement recommendations, for instance:
1. Analysis of the applicable substantive law.
2. Admissibility of certain evidence.
3. Research of similar cases (verdicts and settlements).
4. Jury pool in a given venue.
5. Publicity surrounding accident or lawsuit.
6. Is there any bias against the defendant (e.g., utility companies, foreign manufacturers, insurance companies)?
7. Whether the plaintiff or the estate will evoke sympathy?
8. Whether plaintiff or defendant are likeable and have jury appeal?
9. Is the plaintiff a malingerer?
10. Facts of occurrence – do the facts and circumstances of the accident defy ordinary common sense?
11. Relative strengths and weaknesses of expert witnesses.
12. Relative strengths and weaknesses of plaintiff’s theories of liability.
13. Relative strengths and weaknesses of your theories of defense.
14. Competence and reputation of plaintiff’s attorney.
15. Political climate and current events.
16. Economic climate.
There are a multitude of factors which must be considered but are not quantifiable. Consideration of these intangible factors is just as important as the mathematical methodology. In addition to utilization of the mathematical methodology and consideration of the intangible factors of a given case, formulation of trial strategy and tactics will also impact defense counsel’s comprehensive evaluation and assessment of the case in preparation for trial.