Category Archives: Products Liability Litigation

June 15, 2017

Don’t Let Anti-Lawyer Assumptions Keep You Out of the Courtroom

By Dr. Ken Broda-Bahm:

Lawyer Voodoo DollIt’s an occupational hazard: If you’re a lawyer, then you’re going to hear lawyer jokes. One that I’m fond of is, “There is really only one lawyer joke…all of the rest are true.” That one was used successfully as an icebreaker in voir dire during a recent attorney malpractice defense. Or, I should say, it was used in a mock voir dire, because the case settled on the eve of trial. That result is in keeping to what we see as a general reluctance to see the inside of a courtroom when it comes to defending lawyers. A recent Law 360 article entitled, “Jurors’ Anti-Attorney Bias Is More Paranoia Than Fact,” addresses this strong reluctance to proceed to trial with clients who are attorneys. Ron Minkoff, head of the professional liability practice at Frankfurt Kurnit Klein & Selz PC, is quoted in the article: “The thinking is usually that if you lose at summary judgment, you better think hard about settling because you don’t want to be in front of a jury.” Even when a settlement is not warranted on the merits, the defense will often cave in on it, thinking that a jury is unlikely to be fair to a lawyer, and will instead see the defendant as presumptively dishonest or will hold the attorney to an impossibly high standard of error-free work.

These concerns, however, seem to be overblown. The article quotes another defense attorney, Daniel Konicek of Konicek & Dillon PC in Chicago, “The clients, the insurance companies, everyone on the defense side is gun-shy about juries, but it’s never been my experience that jurors are out to screw a lawyer just because they’re a lawyer,” he said. “A lot of times, my first job is to convince my own clients that people can be fair.” And the idea that juries can be fair resonates with our experience as well. We don’t have as much trial experience defending attorneys in trial (largely for the reasons noted above by Konicek and Minkoff), but we do have relatively frequent experience in mock trials on legal professional liability cases. As I have written here before, it is important to account for the attitudes and biases that are specific to lawyers, but chances are, those attitudes are not as extreme as you might expect, and they shouldn’t serve as a presumptive bar to taking a case to trial. In this post, I’ll expand on that thought, also sharing some recent mock trial data to supplement the anecdotes shared in the Law 360 article. Continue reading

October 24, 2016

Frame Your Medical Device Defense Around ‘Locus of Control’

By Dr. Ken Broda-Bahm: 

Med Device

“Locus of Control” (Rotter, 1966) is a psychological concept referring to how an individual attributes responsibility over her or his own fate. There are important individual differences. Those with a high internal locus of control will attribute success or failure to one’s own skill and choices, while those with a high external locus of control will attribute it to luck or to circumstances. Of course, that is a pretty useful measure for jury selection, with defendants generally preferring the “individual responsibility” orientation of those who favor an internal locus of control, and plaintiffs generally seeking out the victim-focused orientation of those with a high external locus of control.

In medical device context, however, locus of control is more complicated, since there are at least three places that control could reside: with the patient, the doctor, or the device manufacturer. Adding in more levels (e.g., pharmaceutical companies, different members of the medical team, or different parts of the manufacturing company – sales, design, testing, etc.), that control can be further distributed. The correct answer, factually and legally, is often that all of these parties bear a measure of responsibility for what is within their own sphere of control. At the same time, in mock trials and post-verdict interviews with jurors, we often find that jurors will concentrate their greatest attention on one party’s control, seeing that party as having the greatest power and making the key choices. And it is generally not a good thing to be the party in that position, since jurors will scrutinize every one of your decisions and imaginatively construct scenarios of what you could have done differently. But neither is it a good thing to focus only on other parties and to keep one’s own responsibility to an absolute minimum, since that can look unrealistic or evasive. Instead, the goal is to realistically distribute: Take responsibility for what is within your sphere, but encourage jurors or other factfinders to rationally place other responsibility where it belongs.

To do that, it helps to know a jury’s likely baseline attitudes. In this brief article, I will share some new data bearing on Locus of Control in three areas of relevance to the medical device manufacturer. In the summer of 2016, Persuasion Strategies conducted a nationwide survey of 420 jury-eligible participants. I will highlight three implications from that survey data.

One, Look for Label Readers

We asked respondents whether they tend to read, skim, or ignore the label content when dealing with medicine or medical devices. Most claim to read the label word for word.

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Of course, we are measuring their reported behavior, not their actual behavior. But that possibly idealized version is what jurors will be applying to the parties they evaluate. Label readers tend to accept a personal locus of control for themselves and place that responsibility on others as well: not just a burden to read the label, but to assume the responsibility for the knowledge and the risks of using the medication or the product.

Two, Treat Your Warning as a Transfer of Responsibility

This is the basic way warnings should work: Once a user is warned, then responsibility transfers to that user who can make an individual choice of whether to assume the risk or not. What jurors hate is knowledge that the company has but doesn’t share. That is why “hidden danger” is such a common plaintiffs’ theme across products cases generally: Users cannot protect themselves against risks they do not know about.

In practice, this creates a low threshold for warnings, perhaps lower even than the science or the common sense would suggest. For example, when we asked survey respondents what that threshold should be for a medical device company, nearly two-thirds reported that “even a slight possibility of risk” justified a warning. Less than a third felt that there should be evidence of that risk.

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So while the public, jurors included, will complain about ubiquitous warnings for everything including hot coffee, when it comes to assessing control and responsibility in the deliberation room, jurors want that warning to be there and to be clear.

Three, Educate and Convince Regarding the Doctor’s Role

Medical device cases can sometimes carry the illusion of a direct transaction between a device company and a patient/end user, and plaintiffs’ attorneys do what they can to facilitate that illusion. It is often an easier assumption to make because jurors often do not understand the doctor’s role. They may see the device manufacturer’s size, resources, and name familiarity as automatic signs of greater control and power.

One situation where this gap in understanding can play a pivotal role in regards to off-label use. When we asked in our survey, a large majority (79 percent) either did not know whether off-label use is allowed or incorrectly believed that it is prohibited. And the less power they see in the doctor’s hands, the more power resides with the device maker.

In the context of an actual trial, of course, the actual jurors will be informed on the law. But interestingly, even after being informed, the idea of off-label use remains controversial.

In the survey, we asked a longer question:

“The government’s role regarding medical devices, through the FDA, is to restrict how a device company markets and labels its products, but not to restrict how doctors actually use the device with patients. When a doctor uses a product in what is called an “off-label” application, this is not prohibited by any regulation and is actually very common in American medicine. Do you think this situation is:”

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Experienced medical device litigators know that they will have to address this perception, both educating and convincing jurors that doctors not only do have that ability, but also should have that ability to exercise their own medical judgment on a case-by-case basis.

This is just a small sampling of the ways that locus of control can come into a case. In general, a good trial message is that, “We take responsibility for what is in our sphere…but several things are properly outside that sphere.”

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Other Posts on Medical Cases: 

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Rotter, J. B. (1966). “Generalized expectancies for internal versus external control of reinforcement”. Psychological Monographs: General & Applied. 80 (1): 1–28. doi:10.1037/h0092976.

Photo credit: 123rf.com, used under license. 

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September 28, 2015

Repair the Corporate Image

By Dr. Ken Broda-Bahm: 

VW Logo Image

I’ve had a fond and favorable impression of Volkswagen. Partly that’s due to my childhood memories from the 70’s of driving around with my large family in an old VW bus, and partly that is the result of the company’s conscious marketing as a slightly off-beat, countercultural, and environmentally aware company. When the company reintroduced the bug in the late 90’s, they did so with the promise, “If you sold your soul in the 80’s, here’s your chance to buy it back.” Over the years, the larger Volkswagen group’s reputation for reliability, performance, and economy has led to it passing Toyota to become the world’s largest automaker. But what a difference a week can make. Volkswagen is currently embroiled in what is likely to be one of the biggest frauds in automotive or, for that matter, corporate history. The company has admitted to having employed a kind of defeat software in its “clean diesel” engines that switches on emissions control technology in response to patterns indicating that an emissions test is in progress, and then switching off that technology once the test is over. In other words, the cars are programmed to cheat the test.

Affecting 11 million vehicles worldwide, including half a million in the U.S., the scandal is certain to carry some big ripples: potentially billions in fines, criminal sanctions, and civil suits. Already, there is notice of 30 class action lawsuits representing all 50 states plus Canada. It is a tremendous blow, some say potentially fatal blow, to the company’s place in the market because it strikes at the heart of Volkswagen’s image. The Washington Post, for example, quotes Christa Morgan, a customer from Portland, Oregon who bought a 2011 Jetta SportWagen, based in part on its low emissions. “I don’t want this car,” she said. “It makes me feel sick that I’ve been driving this car for about four-and-a-half years and belching all these toxic fumes into the atmosphere.” Volkswagen has a public relations crisis on its hands, and that will soon be joined by a litigation crisis. A recovery might be hard to imagine at this point, but other companies have bounced back from dramatic losses of face and credibility. If that image recovery does happen, it will happen because Volkswagen is able to develop an effective PR message that is in sync with its litigation message. That is where the debacle carries a lesson for all corporate defendants: There is a pattern to how they, and other similarly situated companies, should respond. 

Volkswagen’s Problem: A Worst Case Scenario

What is particularly striking about Volkswagen’s current trouble is that it contains a high measure of all three of the factors that resonate with the public and magnify the perceived scandal. That “dark triad” of factors is that it is harmful, intentional, and deceptive. 

Harmful

The “defeat software” was designed to circumvent emissions rules that have been in place for decades, and that have improved air quality over the years. The manipulation allowed the release of mononitrogen oxides, or NOx, at up to 40 times the legal limit. NOx causes asthma and respiratory illness. According to an analysis by The Guardian, the estimated worldwide total of Volkswagen’s extra emissions, one million tons per year, is equal to the total amount produced by the United Kingdom’s power stations, vehicles, industry and agriculture. 

Intentional

The story emerging so far sets Volkswagen apart from most other automotive and corporate scandals. Instead of being caused by an inattention to safety or to quality, the problem was created on purpose. While the “who” and “how” still aren’t completely clear, it seems that those coding the software built in the emissions defeat as a feature not a bug. That means that at some point in the corporate hierarchy, someone made the choice to trade-off environmental quality in favor of better performance. 

Deceptive

Another compelling feature to the story is how it was discovered. In 2012, a $50,000 grant enabled West Virginia University to road test the vehicles, and they found emissions levels up to 35 times what should have been expected based on the emissions control technology. That was followed by several years of communication before the company finally admitted they misled regulators and consumers. The defeat software was itself a lie to regulators, and when the data became available, the company seems to have continued to hide the ball for several years. 

The Corporate Image Repair Solution

It will be a long road to recover its image, and the outcome is still questionable at this point. But if Volkswagen does make it, part of its message, both in and out of court, will need to include a comprehensive apology that shows a consistency in words and deeds. Unfortunately, corporations facing a public crisis don’t always do that. Recent research (Mena et al., 2015) shows that large companies tend to first apologize, but then “forget” the irresponsible action by removing any trace of the act. By simple avoidance, the company can end up not learning any lessons from the scandal. 

We have written previously about the difference between a partial or compromised apology and a complete apology. In a complete apology, four elements need to be both evident and credible: remorse (“We feel badly about this”), responsibility (“We hold ourselves accountable for it”), repair (“We will fix the damage we caused”), and reform (“We will do our best to see that it never happens again”). Let’s take a look at how these ‘Four R’s’ apply to Volkswagen. 

Remorse

As he resigned, former CEO Martin Winterkorn said he is “deeply sorry that we have broken the trust of our customers and the public.” He also added that he is “shocked by the events of the past few days,” and “stunned that misconduct on such a scale was possible in the Volkswagen Group.” Similar communications from the company are likely to continue, but what needs to be made clear is that the company sincerely appreciates how its customers, shareholders, and the regulators might feel blindsided and betrayed, and that as a result, the company is genuinely remorseful. 

Responsibility

Martin Winterkorn also attempted to hold himself accountable for the debacle. “As CEO I accept responsibility for the irregularities that have been found in diesel engines and have, therefore, requested the Supervisory Board to agree on terminating my function as CEO of the Volkswagen Group.” The solution in this case, however, is not likely to be one sacrifice in leadership. A recent article, CNN Money lays out a good list of next steps, and the first among them is to come clean and communicate clearly. Given that the data was made public a year and a half ago, Volkswagen may have missed a chance to beat EPA and the journalists to the punch by taking responsibility earlier. Now, their best opportunity is to be as transparent and direct as possible in investigating who was actually responsible. 

Repair

Part of the repair has got to be to make the customers whole. That is going to be a tall order, however, because they can’t expect to be able to simply recall the cars, take out the emissions-cheating code and then send them back. Without the software feature, the cars will not perform as advertised, and will not have the same resale value. It is difficult to see how they will propose to make customers whole without buying the cars back. In addition, the large-scale buy-back will also have to be very well run. As Peter Bible, the chief risk officer at consulting firm EisnerAmper, is quoted in the CNN Money piece, “They have to make [it] the easiest recall known to man. It has to be very consumer-centric.” In addition to customers, stockholders who have seen a substantial drop in value need to be looked after as well. In total, the company has set aside $7.2 billion to repair the problem. 

Reform

For either the market or jurors to be reassured, Volkswagen will have to demonstrate that a deception like this cannot happen again. As the CNN Money piece notes, that means fixing the culture by identifying whatever policies and incentives led to the defeat software in the first place, as well as whatever led to it being either undiscovered or allowed within the company for so long. The company will need to dissociate the old personnel, policies, and priorities from the new ones. If Volkswagen’s response is decisive and emphatic, then the crisis is an opportunity to show how much the company values honesty. 

Taken together, the four parts of an apology form a story, and that story tracks with a familiar theme: redemption. Both in public communications and in a courtroom, Volkswagen will need to convincingly show that the company and the new leadership have seen the light. It cannot be just words either, and will need convincing large-scale actions in order to be credible. At this point, a full apology may or may not work. But one thing is for sure: Without it, Volkswagen will not be able to repair its image. 

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Other Posts on Corporate Image: 

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S. Mena, J. Rintamaki, P. Fleming, A. Spicer. On the Forgetting of Corporate IrresponsibilityAcademy of Management Review, 2015; DOI: 10.5465/amr.2014.0208

 

Photo Credit: spatz_2011, Flickr Creative Common

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May 27, 2013

Keep Jurors Focused on the Difference Between Past and Present Knowledge

By Dr. Kevin Boully:

 

Concussion - Football -

Did you believe in 2001 that a concussion could cause significant future health problems? Do you believe it today? If there is a difference, it is probably due to the attention brought by current trends in concussion litigation.  

Reports and concerns over the health risks related to concussion injuries in all levels of sport seem to reach new heights with every 24-hour news cycle. Managing concussion risk in recreational activity is now a public health issue and a litigation hotbed. Public officials and lawmakers are involvedi with new legislation proposed last week. Former athletes injured playing sports are looking for answers. Sports leagues, teams, coaches, school districts, governing organizations, product makers and more are no longer on the sidelines – they are defendants. When the family of former professional hockey player and known “enforcer” Derek Boogaard recently filed a wrongful death lawsuit against the National Hockey League (NHL), the NHL joined the National Football League (NFL) among a host of others being sued by former players making a variety of claims from failure to warn of concussion risks to negligence and more.

Drawing from our own national study conducted late last year, this post will hit upon public perceptions of concussion risk and impact, while also sharing a few tips for keeping jurors from applying current attitudes and knowledge to decisions and technologies deployed in the past.
 
Perceptions of Concussion Injury

Our 2012 National Juror Survey focused on potential jurors’ perceptions of concussion injuries and concussion litigation, finding that most surveyed in 2012 saw a severe concussion as likely to cause future health problems, 32 percent reporting that high school athletes are most vulnerable to health problems related to concussion and 30 percent reporting that professional athletes are most vulnerable.

Concussion health problems Graph 

 

 

 

 

 

 
Persuasion Strategies National Juror Survey (2012)
(Click to see full-sized chart)

The wave of concussion litigation highlights the influence of hindsight bias, a critical aspect of litigation decision making we have addressed in previous posts here and here. The authors of a recent study of hindsight bias research (Roese & Vohs, 2012) put it clearly: “Consequences of hindsight bias include myopic attention to a single causal understanding of the past (to the neglect of other reasonable explanations), as well as general overconfidence in the certainty of one’s judgments.”ii When jurors, judges and arbitrators – human beings all – make decisions about the foreseeability of past events (i.e. should leagues and coaches and organizations have known that players could be harmed by not sitting out long enough after concussion?), hindsight bias can play a central role. Does the fact that we now believe that concussion can cause long-term health issues mean that it was widely known in the 1980s,1990s, or even 2000s? Of course not. Does the fact that we now know a great deal about how concussions affect the human brain mean we should have known years ago? Again, no. But jurors are now being asked more than ever to evaluate litigants’ past knowledge and understanding of concussions while living in a present environment where news, reports, awareness and understanding is at an all-time high and (rightfully so) increasing every day.
 
Address Hindsight Bias
 
More and more knowledge about concussion and its consequences can only help prevent future injuries. Looking backward in time, however, requires attention to understanding what we knew and what we did not to avoid our own cognitive limitations. Researchers suggest “that considering the opposite may be an effective way to get around our cognitive fault, at least in some cases. When we are encouraged to consider and explain how outcomes that didn’t happen could have happened, we counteract our usual inclination to throw out information that doesn’t fit with our narrative. As a result, we may be able to reach a more nuanced perspective of the causal chain of events.”iii Here are some ways to keep jurors focused.  
   
Keep Jurors in the Here and Now
 
Model in voir dire how you must make do with only what you know in that moment about prospective jurors, about the judge, about the testimony, and that the future may turn out differently than we all expect. Ask jurors about their perceptions of that reality. Ask them about Monday Morning Quarterbacking and emphasize that the remedies include living in the present and relying only on what you know at a given moment.

Use time-restricted visuals (including but not limited to timelines) to focus jurors on the risk information that was known at the time decisions were made, and encourage jurors to see the evidence as the defendant perceived it in the real-world.

 Level the Playing Field

Openly endorse your opponent at trial. Make the strategic decision not to aggressively attack their credibility. Instead, make sure jurors see them as active consumers of medical care and medical knowledge, with the power and ability to know much more than the average juror about the health risks of their sport.
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Related Posts: 
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i See for instance the Testimony of Jeffrey Kutcher, M.D. on “Legal Issues Relating to Football Head Injuries, Part II,”  before the United States House of Representatives Committee on the Judiciary.  January 4, 2010.  

Illustration by:  Pam Miller of Persuasion Strategies  

 

August 16, 2012

The Products Survey (Part II): Spot the Wrong Kind of Juror for Your Defense

By Dr. Ken Broda-Bahm 

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During my most recent jury selection, the judge rather uncharacteristically allowed counsel unlimited time for voir dire. The team I worked with was delighted to have the extra time, but still stuck to a fairly disciplined approach of getting what was needed and getting it over with. (Message one to jurors: We respect both your opinions and your time). As opposing counsel’s voir dire stretched into the second day of trial however, with no sign of a “please wrap it up” from the judge, it struck me: Our adversary has no idea of what he is trying to strike, so instead, he is just using his time to transparently trot out each of his case themes for the panel’s approval. When it came time for strikes, to my eyes at least, he simply picked on the basis of demographics in a way that had nothing to do with the hours that he had spent talking with the potential jurors.

The better approach, of course, is to know your targets and to use the voir dire time you have — whether brief or extended — to uncover those factors. Sometimes your targets are based on your own judgement, mock trial research, or reasonable guessing based on past cases. But in other cases, the strikes can be drawn from larger-scale attitudinal research. Persuasion Strategies recently completed a project with the recruiting and survey company K&B National Research that involved a nationwide telephone study of 406 jury-eligible participants to measure attitudes on a number of topics relating to products liability defense litigation. In June, 2012, we asked participants about their views on product testing, labeling, and legal responsibility. We also asked survey participants to report their leanings on a number of brief litigation scenarios. This post, the second in the series, focuses on a few factors that emerged to characterize the jurors posing the greatest risk to a product manufacturer or seller. 

Personal experience and even mock trials can suffer from the problem of anecdotes. Once we’ve met a juror who is fatal to a particular kind of case, we are likely to generalize, believing in practice that it was everything about that person that made them fatal. This young man who worked as a clerk was all too ready to blame the corporation, so no more young men…or clerks. When analyzing at the level of individuals, it is hard to separate the relevant factors from the irrelevant factors. Survey research or any project with a good enough sample size will allow you to transcend that, testing what matters to the ultimate decision at a level of statistical significance. 

And despite our suspicion that “everything matters,” when you run the numbers there are usually only a few things that matter. For example, when we looked at our data from the product survey last month, there were three reliable conclusions that rose to the top. Taking a look at these factors can help directly inform your next product defense jury selection.
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1. Beware of Product Label Readers
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The product manufacturer and seller might initially like label readers. After all, they seem to be the ones who take responsibility and make sure that they’re informed about all instructions and precautions. Wouldn’t the most careful be the most critical of the careless? Not necessarily. We asked our research participants whether they read product warnings word for word, whether they skimmed them, or whether they ignored them. We also asked, “If you suffered a significant bodily injury while using a typical consumer product, would you pursue a lawsuit against the company that made the product?” Turns out, those who say they’re most likely to avoid the label are also those who are most likely to avoid the lawsuit. 
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Product 6
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One aspect of the question, of course, is that it is only measuring what the people say they do, and not their actual behavior with labels, and is likely to be more acute in the more public setting of voir dire than in a juror questionnaire. But rather than being a limitation, that may be part of the explanation for the finding. Let’s say that what the question really measures is a willingness to admit to disregarding labels, then it makes a little more sense why those who are most willing to admit to their own behavior would also be the ones who believe in taking personal responsibility. 
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So whether it tracks with actual behavior or whether it doesn’t, the attitudinal question still works in identifying the higher personal responsibility juror. Getting that out during jury selection can be as simple as asking jurors about their own behavior either generally, or regarding a recent purchase.
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I want you to think back to the last time you bought a product that was potentially hazardous — a product that came with a warning label. It may have been a drug, or a weed wacker, or bicycle helmet. Do you have that in your mind? Okay, now when you were taking that product out of the box, how many of you read the warning word for word? How many of you skimmed it? And how many of you disregarded it altogether?
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You would factor their answer into your strike choices, being suspicious about the first group (readers), mixed on the second (skimmers), and favorable toward the third (disregarders). 
 
2. Beware of a Collective Responsibility Orientation
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Label reading is one reliable cue toward personal responsibility, but it also helps to look at the larger personality orientation. Some are inclined toward a collective view (think My Brother’s Keeper) and some are inclined toward an individualistic view (think Atlas Shrugged). Our current political climate has done us the favor of making those distinctions sharper than ever. Take the health insurance law for example. Supporters see it as a way of applying a collective responsibility to help the millions of uninsured and underinsured, while opponents see it as an unprecedented intrusion on personal responsibility and liberty. 
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In a products and personal injury context, the civil litigation system can be viewed as a means of collectivizing responsibility and transfering wealth from those who have to those who need. One of the more reliable behavioral indicators of someone’s view of your case is their political leaning. Democrats are more likely to take a collective view, to support litigation and higher damages, and to find against the company. We found this again in our recent survey. We provided this scenario: “A consumer bought a product from a company and experienced a severe injury when using the product and is suing the company. The company printed the risks of using the product on the warning label. Knowing nothing else, would you favor the consumer or the manufacturer?”
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Product 1
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Interestingly, this effect is even more pronounced when an element of personal irresponsibility is added to the scenario. In this case, we added, “The consumer followed some, but not all of the safety precautions on the product label” to the scenario.
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Product 3
(Click to see full sized version)

Democrats are also more likely to say they would sue if they themselves suffered significiant bodily injury while using a consumer product:  66 percent of Democrats compared to 38 percent of Republicans. Of course, you can’t ask for political leanings in most cases, but you can often ask questions that generally tell you the same (e.g., How many of you favor the new healthcare law?), or you can ask about the attitudes that are really doing the work under the surface: collectivism versus individualism.
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I’d like you to think about your notion of responsibility – and how we either share it liberally across society, or conserve it and place it with the individual. Some people are close to what I’ll call a “collective” view and would say that to some extent at least, all of us have responsibility for all of us. Others would be closer to what I’ll call an “individualist” view and say that responsibility is personal and belongs with each individual, and only that individual. If you had to say which of those two views you are closer to…. 
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3. Beware of Anti-Corporate Jurors
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We’ve studied anti-corporate bias for nearly a decade, and the attitude plays an important role in products cases because those cases usually pit an individual against a corporation and easily invoke the preexisting narratives of corporate carelessness, callousness, and greed. The next post in this series will dive more deeply into this relationship as it emerged in our recent survey, and provide some recommendations on conducting an oral voir dire that spotlights the worst anti-corporate attitudes.
 
These are three factors that our survey points to as increasing the risk for product defendants. The factors won’t be the same in every case since each product case has its own story and distinct strengths and weaknesses. But in each case, the central need is to identify your targets and know what you’re after before you start talking to the potential jurors. 

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Other Products Posts: 

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Cite Research to Persuasion Strategies (2012). National Juror Survey: Products. 

Photo Credit: Jeffrey Beall, Flickr Creative Commons

August 9, 2012

The Products Survey (Part I): Adapt to Today’s Product Attitudes

We are in an election season, and that is a good reminder of the fact that attitudes change. Maybe not fast enough to feed the 24-hour news cycle, but definitely fast enough to influence the litigation climate between cases. Products liability litigation in particular, is heavily influenced by jurors’ preexisting attitudes on personal responsibility, their specific beliefs about safety, product labeling and testing, as well as the way they see the relationship between large corporations and individuals. These are all attitudes that vary by venue and over time. Not having your finger on the pulse of these shifting opinions can pose a danger to products litigants. While jurors are definitely committed to hearing the evidence and basing a decision on the particular case instead of their generalized attitude, the outlook they come in the door with will still determine your starting point in trial.

By Dr. Ken Broda-Bahm

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A Persuasion Strategies/K&B National Research Survey

We are in an election season, and that is a good reminder of the fact that attitudes change. Maybe not fast enough to feed the 24-hour news cycle, but definitely fast enough to influence the litigation climate between cases. Products liability litigation in particular, is heavily influenced by jurors’ preexisting attitudes on personal responsibility, their specific beliefs about safety, product labeling and testing, as well as the way they see the relationship between large corporations and individuals. These are all attitudes that vary by venue and over time. Not having your finger on the pulse of these shifting opinions can pose a danger to products litigants. While jurors are definitely committed to hearing the evidence and basing a decision on the particular case instead of their generalized attitude, the outlook they come in the door with will still determine your starting point in trial.   

This post is the first of three focusing on our own original research. Persuasion Strategies worked with the recruiting and survey company K&B National Research to conduct a nationwide telephone study of 406 jury-eligible participants to measure attitudes on a number of topics relating to products liability defense litigation. In June, 2012, we asked participants about their views on product testing, labeling, and legal responsibility. We also asked survey participants to report their leanings on a number of brief litigation scenarios. Part II of the series will focus on a few emergent factors characterizing those jurors who pose the greatest risk to the product manufacturer or seller, and Part III will focus on the special role of anti-corporate bias in mediating the relationship between individuals and companies in products cases. Before getting into that, however, this first post provides an overview of the survey results, as well as the general takeaways for products defendants preparing messages for trial. 

One important note is that for all of the findings below, we are measuring reported attitudes not behaviors. That is, someone can say they read product labels all the time, but that might be saying more about social desirability bias than it says about their label reading practices – in actuality they might skim or ignore labels like the rest of us. But that doesn’t make the expressed attitude unimportant. Even if it is biased in the direction of desirability, the attitude can be critical to the extent that it helps frame the expectations that jurors bring into the courtroom and apply when evaluating the parties. 

Among the general conclusions of this survey, the following are the most notable: 

How Well Do We Test?

Survey Finding: There is nearly an even split on adequate testing of products. In our survey, 47 percent say that products tend to be “often,” or “almost always” adequately tested, while 48 percent say that they are “rarely,” or “almost never” adequately tested.

Trial Strategy Recommendation: Measure attitudes on testing either in a supplemental juror questionnaire or in oral voir dire. Even when your case doesn’t involve a direct controversy over the level of testing, a panelist’s opinion about product testing can be a window into their views on how much responsibility the company should have, with those supporting greater testing also being more likely to hold the product manufacturer responsible. 

Do We Follow Warnings?

Survey Finding: About two-thirds feel that consumers follow safety precautions. In our survey, 65 percent reported that consumers “often” or “always” follow recommended safety precautions when using consumer products.

Trial Strategy Recommendation: This possibly exaggerated view of how often consumers follow precautions can be beneficial. When defending a product against a plaintiff who may not have fully followed precautions, normalize the experience of reading and following warnings. If nearly everyone does it, then the plaintiff is in an exceptional class of those who don’t. The more unusual or atypical the plaintiff’s behavior, the easier it is to attribute responsibility. 

 Do We Prioritize Safety or Performance?

Survey Finding: Companies and consumers are both seen as prioritizing product performance over product safety. In our survey, 59 percent reported typical manufacturers prioritize product performance, compared to 36 percent who say they prioritize product safety. A comparable result applies to consumers, as 61 percent say consumers prioritize performance compared to 36 percent say they prioritize safety. 

Trial Strategy Recommendation: In addition to directly finding out who believes that companies underemphasize safety, it is also a good idea to undercut that dichotomy. If making the product “better” is the same as making the product “safer,” then the incentives run in the right direction and jurors have a good reason to believe the company made the product as safe as possible, not because they are good citizens, but because they have a profit motive to do so.  

Do We Read Labels? 

Survey Finding: Fewer people claim to read labels now than in 2010. Two years ago, fully 57 percent claimed to “read the label word for word,” and today that percentage is down to 37 percent. It may be the effect of the profusion of “terms” that we all have to agree to these days whenever we open a new program or install a new app — just clicking “I agree” and ignoring the terms is probably the default for many to most of us. There could also be a political source for this difference, as we also found that those who generally vote Republican are also more likely to admit to “skimming” or ignoring product labels, perhaps being more comfortable in a “personal responsibility” mode. 

Label Reading
(click to see full-sized image)

Trial Strategy Recommendation: Take jurors’ statements about their own label reading with a grain of salt, but understand that they’ll still be willing to apply that idealized view when they evaluate others. Some will say, “Well I would have read that label…” and others will say, “I may not have read it, but if I didn’t I wouldn’t be suing,” but all will to some extent use themselves as the standard in evaluating others, the “Golden Rule” notwithstanding. 

Do We Trust Large Companies?

 Survey Finding: We have written extensively on anti-corporate bias, based on a decade of our own research on the concept. Tracking the attitudes year-to-year has allowed us to recognize changes when they occur. In our 2012 survey, for example, we noticed a lessening of anti-corporate bias in a few areas. For example, 61 percent of our current respondents believe the government favors large corporations over ordinary Americans, compared to 74 percent last year. Just 29 percent reported that there are “too few” lawsuits against large corporations, compared to 47 percent in 2011. This somewhat better picture on anti-corporate attitudes may be a sign that, at least for part of the population, the campaign rhetoric recasting large companies as “job creators” instead of evil monoliths is gaining some traction and mitigating some of the bias. 

Trial Strategy Recommendation: Measure your potential juror’s anti-corporate bias. We have developed a scale that does exactly that and made it available for free (you can download it here). That scale, particularly when supplemented by the information that will be in Part III of this series, will be useful in identifying the jurors that are likely to be hardest on a products defendant. Apart from jury selection, however, it is also important that you adapt your message in trial. Given that a clear majority still distrusts large companies in general, some of those people will be on your jury. For that audience, you need to convey the face of the company and show the concrete ways that it differs from their view of a “typical” corporation. 

Even with the moderate changes that we’ve seen, today’s attitudes are still generally pro-safety, pro-testing, anti-big business, but also pro-personal responsibility. A consistent two-thirds for example (66 percent in 2012 and 68 percent in 2010) believe that when individuals are injured using typical consumer products, it is probably the individual’s fault. Discovering the unique mix of these attitudes in your venue and adopting to the ways they’ll influence jurors’ view of your case is the central challenge. 

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Other Posts on Product Defense: 

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Cite Research to Persuasion Strategies (2012). National Juror Survey: Products. 

Photo credit: Ejimford, Flickr Creative Commons

 

February 2, 2012

When Your Case Follows a Bellwether, Prepare Jurors to Hear only Part of the Story

By Dr. Ken Broda-Bahm and Dr. Kevin Boully: 

Bellwether 2_guttorn Flatabo_fcc
The first bellwether case in Toyota’s “Unintended Vehicle Acceleration” litigation has just been selected by a judge in California.  To some, that may come as a surprise, since it might have been assumed that these cases would have deflated after the National Highway Traffic Safety Administration (NHTSA) concluded a year ago that there is no electronics-based cause.  Then, just last week, an exhaustive investigation by the National Academy of Sciences again failed to find a causal link between vehicle electronic throttle-control and sudden acceleration.  Yet still, it appears, the cases have continued like…well, like some kind of unstoppable vehicle.  That suggests there may be more to the story than what we’re seeing in the press, and we will have to wait on the trials to find out.

The interesting point for me at this stage is the emerging “bellwether” structure.  The term originally refers to a sheep that leads other sheep by virtue of a bell around its neck.  In litigation, however, the bellwether structure is increasingly used to select a specific case, or a few cases, from among a much larger group of similar cases to be tried first in order to resolve some of the broader issues in the litigation.  A finding of liability and general causation, for example, might be established for all plaintiffs, leaving it to the rest of those in the group to just prove specific causation and damages.  The practical effect of a bellwether structure is generally to encourage settlement, but for the vast majority of cases that are “nonbellwether,” it means that there is at least some chance to go to trial with a number of issues already established by another jury.  That is undoubtedly an advantage for plaintiffs, yet it also raises some interesting communication challenges.  Is it possible to fully motivate and persuade these nonbellwether juries if they are only hearing part of the story?  Does it have an effect on the damages awarded?  This post looks at the relevant research, and makes a few recommendations for cases within a bellwether model. 

The Toyota Bellwether

The way a case becomes a bellwether is usually a process of compromise.  The plaintiffs want to try the best claims first, and the defendants want to lead with the worst claims.  Or, more charitably, both parties want to try the cases that will give them the greatest insight on the most important issues coming down the road, they just tend to have different views about which cases those are.  In the Toyota litigation, however, the choice was to draw a wild card:  Los Angeles County Superior Court Judge, Anthony Mohr, chose from among the 100 state court cases one that was offered by neither the Plaintiffs nor the Defendant.  He picked the case of Peter Uno, who alleges that his wife, Noriko, died as a result of a defect in her 2006 Camry that caused it to accelerate to 100 miles per hour before crashing into a telephone poll.  The judge’s off-the-menu choice was motivated by this specific Plaintiff’s own failing health, and the trial may start as early as September 2012, putting the state court cases well ahead of the February 2013 date for federal multidistrict litigation. 

The process from here, and exactly which issues are entitled to preclusive effect in subsequent trials, has not yet been made clear in the press that we’ve seen, but one thing is clear:  All eyes in this litigation will be on Mr. Uno’s case.  The Plaintiff will try to focus on evidence of Toyota’s lack of candor, and the $16 million dollar fine levied by the NHTSA.  Indeed, a Toyota executive’s recent admission that the company “avoided direct confrontation of the truth” in responding to inquiries, might also play a role.  If that information is successful in leading the jury down the path of liability, it may also elicit a certain level of anger.  And we know that anger plays a role in motivating damages.  So if future trials are following this bellwether precedent, will future plaintiffs benefit from this sense that “we’ve already won…we’re just here to collect,” or will they lose out because the juries are not hearing about the bad acts that drive juror anger? 

The Structure’s Effect on Nonbellwethers

Unfortunately, there isn’t yet a definite answer to that question, because we are lacking direct research on the effects in trial when issues are decided by a previous bellwether jury (Hear that academics?  An interesting area…with no prior research!).  Instead what we have is research on the similar, but not fully parallel, situation of bifurcation in which different juries decide the issues of liability and damages.  Drawing from that body of research, there are two critical findings that may apply to a bellwether situation. 

Jurors Who Don’t Hear Evidence of Bad Conduct Give Smaller Awards.  According to a number of studies, including Smith & Greene (2005), when jurors hear damage information alone, it just isn’t the same as hearing the whole story, and the difference can be measured in dollars.  “Jurors who heard evidence regarding the plaintiff’s injuries, but no evidence of the defendant’s conduct, gave smaller awards for the specified injuries than did jurors who heard evidence about both the injuries and the defendant’s role in causing the accident.”  This stands to reason when we remember that, instructions notwithstanding, when calculating damages, jurors are not just measuring the harm done.  Instead, particularly but not exclusively in noneconomic categories, they are also making a statement about the degree of the defendant’s responsibility.

Jurors Will Discount Damages if Liability is Uncertain.  As anyone who has observed mock deliberations will attest, damages are also an outlet for compromise and uncertainty.  According to one study by Wissler, Rector & Saks (2001) “If jurors are unsure of their decision on liability, they might make up for the possibility of finding an innocent defendant liable by lowering the amount they award the plaintiff.”  A nonbellwether jury may hear that another jury found liability in a prior trial, and they may even hear some of the context and the reasons why.  But the question is whether this jury can ever be as certain about the liability conclusion as the jury that heard all the evidence and reached that conclusion on their own.  If a defendant succeeds, even with a limiting instruction, in introducing evidence that may make a second jury doubt the conclusions of the bellwether jury, then that uncertainty may pay off for them in a reduced damages award.   

Prepare Nonbellwether Jurors for Part of the Story

There isn’t a clear solution to this problem for plaintiffs, but any disadvantages to a bellwether structure are likely far outweighed by concerns of simple efficiency, as well as greater likelihood of a timely settlement offer.  In the event that your case does make it to trial following a bellwether, we have a few recommendations.

Submit a Statement of the Case that Includes Substantive Liability Information.  From a plaintiff’s perspective, jurors need to hear as much about that first trial as the judge will allow.  Jurors need confidence that the bellwether decision was thorough, accurate, and respectable.  A clear and nonlegalese statement from the court, thoroughly explaining the detail and depth of the first trial, enhances the jury’s confidence in the earlier decision which protects against a deflation of damages.  

Pursue Written Opening Statements to Be Read Prior to Voir Dire.  One of the key areas in voir dire will center on panelists’ ability and willingness to defer to another jury’s decision based on evidence that they did not hear.  In order to give anything other than a rote “yes, I’ll follow the instructions” answer, panelists will need to know more context on exactly what they are being asked to trust.  In that situation, a good procedure is to allow all parties to make a brief statement prior to the second trial’s voir dire, not to relitigate the bellwether case, but to explain the story in their own terms, including their client’s position following the first trial and the instructions that jurors will need to follow in hearing the evidence in the second trial. 

Request a Clear and Meaningful Instruction Against Discounting Damages.  Despite our occasional cynicism on the value of legal instructions once the door closes on the deliberation room, there is some evidence that in this context, the instruction matters.  The same study cited above (Wissler, Rector & Saks, 2001), also found that a court instruction not to discount damages based on uncertainty about liability, reduced the impact that uncertainty otherwise would have had on a general damages award.  Plaintiffs should pursue an instruction, ideally prior to evidence, to the effect that jurors’ individual uncertainty about liability or the reasons and substance underlying the bellwether jury’s verdict, should not be used to discount their assessments of damages.  It is only human to let uncertainty play a psychological role, but the instruction at least provides other jurors with a response if it creeps into deliberations. 

For a nonbellwether client, the trial structure can feel like being in the back seat of a car that is speeding ahead without your control.  As in all things, the key is to adopt your communication to the unique situation. 

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Other Posts on Bifurcation and Damages:

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ResearchBlogging.org Smith AC, & Greene E (2005). Conduct and its consequences: attempts at debiasing jury judgments. Law and human behavior, 29(5), 505-26 PMID: 16254740

Wissler RL, Rector KA, & Saks MJ (2001). The impact of jury instructions on the fusion of liability and compensatory damages. Law and human behavior, 25(2), 125-39 PMID: 11419378

Photo Credit:  Guttorn Flattabo, Flickr Creative Commons

November 28, 2011

Define “Reasonable Person” As Your Jurors’ Idealized Version of Themselves

By Dr. Ken Broda-Bahm:

What Would I Do -
Sometimes you come across a document that challenges your view of basic human goodness.  The stomach-churning Grand Jury Report relating to the Pennsylvania State football scandal is one such document.  What stands out, based on the allegations, is just how many times former assistant coach Jerry Sandusky was caught.  In locker rooms, workout rooms, cars, and homes, the report points to continual revelations of abuse that led to minor and incomplete reactions.  The responses of those making the discoveries appeared to be "not in my locker room…" or "not with my kid…" instead of "you are going to prison."  If the facts end up bearing out that perception, then there is a great deal of blame to be shared by those around Mr. Sandusky.

The situation also raises the question, "What would I have done."  We would all like to believe that, if we had clear evidence of child sexual abuse, we would have acted differently from the many witnesses in Happy Valley.  We wouldn't have just told our supervisors, like then graduate assistant Mike McQueary, we would have told the police, then the media, and the world if no action was taken.  Hopefully, that expectation is accurate in this case.  But we also know that in many cases there is a tendency to idealize our expected behavior.  In our own estimation, we always would have been more careful, more thorough, and shown greater foresight than others.  That tendency to idealize has a direct effect on how jurors personalize abstract legal standards like the "reasonable person" and the "exercise of ordinary care."  They start by asking, "WWID" or "What would I do?"  And then they apply a little gloss to the answer. 

The Reasonable Person and the Tendency to Idealize

It is an ever-present touchstone of our common law that every individual owes a duty to behave as a reasonable person would behave under the same or similar circumstances.  While the law might treat that as an objective standard, the only way for a given juror to apply it is subjectively.  We know "reasonability" by filtering it through our own experiences and worldview.  When understood in that personal way,  what is "reasonable" can end up looking a lot closer to what we consider "ideal."  Our own estimations of what we would do in a given situation are generally better than what others have done, and better than we ourselves would have done if actually in that situation. 

For example, one recent study (FeldmanHall, 2011) looked at what people would do for money, compared to what they thought they would do for money.  The Cambridge University researchers started by giving participants a hypothetical choice:  Would they deliver an electric shock to another person (ala the 1961 Stanley Milgram experiement) in exchange for money?  A majority, 64 percent, said "no," not even a mild shock in exchange for cash.  But when participants were actually given the chance to shock, a surprising 96 percent chose to administer the shocks and collected a cash reward based on the severity of the shocks.  Unlike the classic Milgram study, where resistance to continued delivery of shocks was answered by a simple, "the experiment requires that you continue," in FeldmanHall's study the participants had a choice:  They could deliver the shock and receive cash (one British Pound, about a dollar and a half), or they could spare the other person the shock and forgo the money.  In that context, the number of participants delivering shocks, as well as the number of shocks delivered (the average participant earned more than fifteen Pounds from the experiment) show that we can't trust self-assessments of hypothetical behavior. 

Yet those are the same assessments – What would I do? —  that guide jurors' understanding of negligence and other common law claims. 

Helping Jurors Nail Down Reasonability

Rather than relying on jurors to apply our own concept of "reasonability" or to discern the concept as a self-evident universal rule, I encourage litigators to take a few steps in order to help jurors to an understanding of the standard that is clear and favorable to your case. 

1.  You Can Rely on Hypotheticals in Voir Dire to Set a Standard.  If you're trying to determine whether a potential juror places product label reading, for example, in the category of something that a manufacturer can "reasonably" expect, you'll want to know if they read labels or not.  But you will get a more idealized response if you simply ask whether they read labels, which panelists are likely to interpret as "would you have read the label in this case?"  That idealized response ("of course I read labels, and would have read this label") is definitely helpful – usually to a defendant – in conveying a standard to the ultimate jury, especially when the same response is given by many on the panel, but it tells you much less about the actual behavior of the individual venire member.   

2.  But Ask About Actual Behavior If You Want to Reduce the Gloss.  For the plaintiff interested in what the potential juror truly does with labels, rather than asking about hypothetical or expected behavior, the better series of questions is:  "What was the last consumer product you bought?  Do you still have the instructions and any warnings?  Did you do anything with those labels and warnings?  Did you you fully read them, scan them, glance at them, or not read them at all?" 

3.  When Necessary, Teach the Difference Between "Reasonable" and "Ideal."  Particularly when ideal behavior would have, in hindsight, prevented the problem, there is a strong pull for jurors to elevate "reasonability" to that level.  When that doesn't aid your case, you want to help jurors resist that pull.  One way to do that is to explicitly note the difference by asking about it in voir dire, by previewing the difference in opening statement, and by stressing that the law requires only the reasonable, and not the ideal, in closing argument.  One effective technique we've used is to create a demonstrative exhibit showing a staircase with at least three labeled steps:  one ideal, one reasonable, and one negligent. 

As the Pennsylvania football scandal continues, followed by a nearly parallel situation with Syracuse associate basketball coach Bernie Fine, we not only hope that we would have acted more responsibly than the witnesses at the time, we believe passionately that we would have.  The facts will differ, but the same "What Would I Do?" tendency is common across all litigation scenarios.  Litigators need to understand and adapt to that tendency in order to promote a fair standard in court. 

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Related Posts:

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FeldmanHall, Oriel (April 4, 2011).  Presentation to the Annual Meeting of Cognitive neuoscience Society. 

November 24, 2011

Take a Moment to Present Your Safe Product Story

By Dr. Kevin Boully:

Safety first
In little more than a moment a man goes from enjoying his favorite recreational sport to an injured Plaintiff with a sports-product liability claim.  It happens in a flash.  And new research suggests that people may make determinations about a witness's trustworthiness and empathy just as quickly — in about 20 seconds.  So what happens when Defendant manufacturers are faced with challenging facts, sympathetic Plaintiffs, and a need to present a believable trial story in sports-related products liability cases?  In this post, we focus on a three part approach to developing a critical aspect of an effective product-defense — an effective product safety story. 

Earlier this year, a Missouri jury awarded $48 million to the families of five people who perished during a skydiving incident.  Trial testimony indicated the Defendant airplane-parts manufacturer made a replacement part for the aircraft using a metal alloy that cost about half as much as the metal the original manufacturer required.  Plaintiffs also presented evidence that the replacement part had caused other engine failures, and had failed internal testing.  These are not good facts (to put it lightly), and a Defendant in this position clearly faces an uphill battle.  But a Defendant in this position must present a credible company witness (if not multiple witnesses) who can tell the story that made the Defendant company's decisions safe and reasonable based on the knowledge and testing available at the time. 

A Three-Part Safety Story

Part One:  

Bring Credible, Likable Witnesses From All Relevant Levels

Every defense needs credible witnesses, but personalizing the manufacturer through a full spectrum of relevant employees is central to a product safety story.  Jurors do not trust scripted corporate executives’ claims that a product is safe if the executives were never anywhere near the product during its development.  Bring lower level employees with direct, hands-on experience testing and improving the product in order to gain juror trust in the product's safety and reliability.  Find a witness who was intimately involved in the decisions that led to the aircraft replacement part's design and manufacture.  Let him talk about the reasons for his careful decisions. 

Part Two:  Reveal the Product’s Evolution

A brief and relevant history of the product starts with the problem the it was created to solve.  Engage jurors with the reasoning behind the product's creation and follow the product through research, development, testing, all the way through its success in the market and post-market improvements.  This gives the product an identity and implicitly highlights the time, energy, and resources devoted to make a safe and effective product.  Don't underestimate the value in explaining the aircraft replacement part was created to fill a void left by parts that were too heavy or wore out too quickly. 

Part Three:  Account for the Range of Anticipated Uses

Describe the anticipated product uses and how the manufacturer addressed the range of possible misuses during its product development.  If the Plaintiff argues the manufacturer must anticipate unreasonable uses, the Defendant must clearly distinguish between the product's reasonable uses and those that exceed reasonable use and explain its plan for preventing those misuses.  If a certain model of aircraft replacement parts are safe in only some aircraft models, describe how the manufacturer accounts for that concern and designs the part so it can only be used safely. 

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Related Posts:

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 Photo Credit:  MattC. Flickr Creative Commons

May 26, 2011

Persuade Using Both Alpha and Omega Strategies

By: Dr. Ken Broda-Bahm –

Alpha omega

Ken_061 Never heard of “Alpha” and “Omega” strategies for persuasion?  Until recently, neither had I.  But after reading the research, it has changed my way of looking at persuasion.  The terms are based on something called the “approach-avoidance” model (Knowles & Linn, 2004), suggesting that to an audience, every position you might advocate has attributes that attract (“approach”), and attributes that repel (“avoidance”).  Persuasion is accomplished, naturally enough, by making the approach stronger than the avoidance.  Now, you might think, “that is obvious — of course audiences see a pro and a con,” but the real takeaway for advocates is the reminder that you need to speak to both sides of the equation.  Intuitively, we might expect that we make a persuasive case in court by assembling all of the evidence, arguments, and other appeals that show why we are right and they are wrong.  But that all speaks to the benefits of our position — the approach forces.  Those are the “Alpha” strategies that give a judge or jury an incentive (greater credibility or merit) for siding with us.  But what about the avoidance forces, the forces that cause an audience to resist our message?  If we aren’t also using the “Omega” strategies to decrease that resistance, then we may just be building a convincing case that our audience rejects nonetheless for their own reasons.  Continue reading

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