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.
We do not forget what is vividly burned in our brains. So make it memorable: Great advice that many persuasive litigators heed when developing and delivering oral argument but disregard when creating written briefs for the Court. Thankfully, a recent legal brief-gone-viral helps illustrate the importance of three concepts critical to building unforgettable written advocacy.
Lockout. If you’re a sports fan or even a casual news surfer, you cannot escape word that America’s favorite sport – professional football – is in jeopardy. Players and owners are at odds and this Wednesday, the National Football League Players Association will face off against the NFL and its owners in an injunction hearing before a Minneapolis Judge (for some flavor click here to see the NFLPA’s brief filed last week). There is a real chance the 2011 NFL season will be disrupted. A few lawsuits (including one by former NFL players) have already been filed and there is talk of a similar dispute playing out later this year between professional basketball players and the National Basketball Association.
At least we have baseball, right? Well, yes, but keep in mind that 119 Major League Baseball players went through salary arbitration for the 2011 season – again in dispute over, among other things, how much money players make and owners share. Even college sports are in the courtroom. It is a reality that judges and arbitrators have an increasingly important role in the future of sports. So it got me thinking about our experience with judges and arbitrators and how advocates must address them to be successful.
You are in the throes of jury selection and realize to your immense frustration that you need more peremptories than you have. If only the other side would share theirs. Unlikely. The next best alternative comes in the form of two approaches that can increase your chances of adding to your limited number of peremptories.
“There is danger in all sports, anyone who plays them takes that risk for themselves.” -Mock Juror in recent sports litigation research
Athletes choose to play sports that involve risk. Athletic teams, coaches and organizations are aware of the risk just like players. So, how much personal responsibility does an individual athlete have for safely participating in his or her chosen sport? What must the player and the organization do to make sure all possible safeguards are in place to reduce risk? Who should be held most responsible?
Persuasive Litigator aims to provide litigators and other devotees of legal persuasion with practical tips and innovative litigation strategies spanning pretrial and trial phases, for jury, bench, and arbitration settings.
The information contained in this blog is provided for informational purposes only. It is not legal advice and should not be construed as providing legal advice on any subject matter.
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