No lawyer walks in the office in the morning and thinks, today I’m going to cross the line, but it happens. Consider these three recent examples discussed by John Day, Eric Turkewitz, and James Beck.
(1) John Day, a plaintiff’s lawyer in Tennessee, has some insight into the recent $900,000 herpes infection verdict in Oregon:
The defense lawyer said the following in the presence of the jury: “Grow up. Come on. You’re an adult. He’s an adult. They had sex. … The point is she is not some little innocent victim. … Go for a million — that’s plaintiff’s message. … . God bless America. Go for it. Got some coffee to spill on me?”
As John recounts, this case lines up perfectly with an article he read twenty years ago on “How To Get A Million Dollar Verdict,” wherein a trial judge identified three factors that led to million dollar verdicts: a weak liability case, a case with significant but not catastrophic damages, and a defense lawyer who is a jerk.
Read John’s post for more; I think his analysis is spot-on. The defendant was obviously culpable and had plainly not told the plaintiff about his herpes — trying to trivialize her injury by calling her a greedy slut was, shall we say, ill-advised.
(2) Eric Turkewitz, a plaintiff’s lawyer in New York, catches a fellow plaintiff’s lawyer filing what looks like a meritorious dog bite case and then saddling it with a preposterous demand:
I was pissed when I saw the article in the paper: A doctor walked her dog in a school playground where it wasn’t supposed to be and attacked a child, biting off part of his earlobe. The kid (through his parents) sued the doc. For $30,000,000. …
When I go in to pick juries, I am constantly faced with the deep cynicism that is fed by insurance companies and newspapers that thrive on outlier suits for spurious claims or that claim enormous damages. To the jurors, fed by such media attention, every lawsuit represents greed and lottery-like jackpots, while to the litigants, the suit is simply at attempt to measure what is fair and reasonable under the circumstances and receive just compensation.
Rosemarie Arnold, in bleating a $30M claim to the press, just made my job more difficult, as well as the jobs of all the other personal injury attorneys in the state. And she has added one more straw to the camel’s back in damaging the rights of litigants trying to pursue justice in the courts.
As Eric notes, in New York complaints aren’t supposed to even mention particular sums of money, but the problem of alleging the number is dwarfed by the problem of the number itself: $30 million for a dog bite resulting in injury to part of an earlobe?
Losing part of your earlobe as a six year old in a dog attack is pretty terrible, but, for those of you who aren’t trial lawyers, let me give you a little bit of insight into how personal injury law works: whatever you may have heard about juries handing out tens of millions of dollars on a whim, the truth is, if you are burned to death or electrocuted — two of the most painful and horrible ways to die, something you’d never wish on your worst enemy — and your estate’s lawyer can develop an overwhelming case against a highly profitable or well-insured corporation, then your family will probably recover somewhere between $5 million and $15 million. That’s a good result. Typically, though, even in the most tragic of circumstances, like a preventable brain injury at birth, the end result is between $2 million and $5 million, like with this $56 million malpractice jury verdict that turned into, at most, a $4.5 million recovery.
But a dog bite that caused an injury that didn’t cause a disability, didn’t cause brain or spinal injury, and didn’t affect the child’s ability to earn wages? That’s not worth $30 million. It’s not worth $3 million. If the plaintiff can’t prove continuing treatment for PTSD, it’s not worth $300,000. As Ron Miller, a plaintiff’s lawyer in Maryland, recently pointed out, the average dog bite insurance payout is about $30,000, or one-thousandth of the demand above. The Insurance Information Institute estimates that all dog bites annually across the country typically amount to around $400 million in insurance payments — did the lawyer really think her client, with a non-disabling dog bite injury, would take one-fourteenth of the total sum usually paid out to over 16,000 dog victims every year?
(3) Finally, Jim Beck, a pharmaceutical defense lawyer in Philadelphia, catches a mistrial-by-pantomime order, vacating a $212 million jury award (actually, the awarded $12 million in compensatory damages and $200 million in punitive damages, but, thanks to Virginia’s “tort reform,” the punitive damages were capped at a mere $350k) for a man with a brain injury due to Botox:
[Ray v. Allergan] involved Botox (short for “botulism toxin”). Obviously, a product with variant of “toxin” right in the name carries significant risks, particularly if misused. A major dispute (no surprise) was the warnings that accompanied Botox concerning those risks. Plaintiff ultimately lost the verdict because his counsel engaged in trial tactics that were too cute by a half. …
The claim that the plaintiff wanted to pursue was that the drug (technically, a “biologic”) should have had “black box” warning. … Suffice it to say that, in Ray the judge agreed that the black box claim was preempted (even if it wasn’t described in those terms in the opinion) and told the plaintiffs not to pursue that claim. But the plaintiff was allowed to argue … that the defendant could have “strengthened” the labeling by making the label “more prominent” generally.
I don’t agree that the judge found the “black box” claim was preempted; rather, the court held that the plaintiff could argue that Allergan should have added a “black box” warning to Botox, but, if they did, then the defendant would have been able to argue that such a “black box” warning could not have been added without FDA approval. The plaintiff elected to drop the “black box” issue entirely.
Everything would have been fine while the plaintiff argued about the need for a more prominent warning except, as the Court’s order granting a new trial recounted,
While these points were being made, [plaintiff’s] counsel repeatedly made hand gestures that, according to [defendant], described a box. [Defendant] objected at the time, but not having seen the gestures, the Court overruled the objection and gave the jury no instruction limiting the text of the argument to the prominence of the warning or dispelling any suggestion that a black box warning could have been issued unilaterally by [defendant]. A review of the courtroom security videotape . . . teaches that such an instruction should have been given because, in the context of the words used by [plaintiff’s] counsel, the jury could have concluded that counsel was arguing that a black box warning should have been given without having the jury also informed that such a warning would have required prior FDA approval.
Oops. I’d love to see the videotape; was the lawyer literally drawing a box, or were their hands carrying an invisible box (simply holding their hands about a foot apart in the air)? The former seems problematic to me, while the latter is a somewhat standard answer to the age-old question, what do I do with my hands while speaking in public?
Is there anything to learn from these examples? In my humble opinion, all three lawyers discussed above got too wrapped up in their cases and let their objectivity get away from them.
The Herpes closing argument seems like it was too personal, like what he’d say to a friend or a family member (who would presume the best of him and understand it as a vigorous argument rather than a personal attack), rather than to a group of strangers. The dog bite demand, in turn, seems like the client and the lawyer got themselves into a positive feedback loop, whipping up their own outrage over the wealthy doctor walking the dangerous dog and then downplaying the injury, until they felt comfortable making a preposterous demand. Finally, with regard to the Botox, as much hay as the defendants try to make of the pantomime, it’s unlikely the jury thought much of it either way, and I doubt it was an intentional choice — apart from the ethics of intentionally implying a precluded argument, it just doesn’t seem to me the plaintiff’s lawyer would think he had much to gain from drawing the box.
At the end, sometimes making the client’s case your cause isn’t the right move; sometimes professional distance is essential.