Litigation Strategies

November 17, 2008

Jury Consultants: To What Extent Does Methodology Matter?

Risk & Insurance had an interesting article about “scientific perspective” in predicting jury verdicts. The premise of the article is that the quality of jury consultants varies wildly because different jury consultants use different methodologies. In the litigation world, there are no barriers to entry for those who seek to be jury consultants. The only thing you really need to do is put the words “jury consultant” on your business cards. As a result, many jury consultants are “amateurs in terms of their training” to predict jury behavior.

The author believes — and I think correctly—that accident and malpractice lawyers often make choices based on who the lawyer likes (and respects) as opposed to the jury consultants’ credentials and background in the science of predicting juror behavior.

As a result, the variable quality of jury consultants leads to mixed results on the efficacy of jury verdict research. Settlement decision makers (plaintiffs’ lawyers, defense lawyers, and adjusters) often question the reliability of research when coming up with a dollar figure for dispensing with a case, and end up instead making major decisions on gut instincts (see also: George W. Bush).

The author, Courtroom Sciences’ National Director of Litigation Consulting, George Speckart, contends that these gut decisions create losses that are more expensive than the costs of scientific jury research. Continue reading

October 22, 2008

Exact Numbers in Personal Injury Cases

by Ronald V. Miller, Jr.

David Davis, a Massachusetts based jury consultant, offers five thoughts in The Jury Expert (link since removed) on the psychology of how jurors process requests for damage awards I think interests accident and malpractice lawyers.

I found of particular interest his theory that consumers—and by implication, jurors—have a propensity to judge precise amounts of money to be lower in magnitude than similar round prices. The reason is that we use precise numbers for small amounts and round numbers for larger amounts. The example Dr. Davis provides is that a precise number like $325,425 is seen as lower than $325,000 even though obviously the former number is a higher amount.

The implication for personal injury lawyers is obvious: make a request for damages that is a specific amount and back up that amount with some logical foundation. David Ball, another jury consultant that I have relied upon an impressive deal in my damage theories, disagrees with the utility of per diem arguments. But our lawyers often use per diem arguments to come to a specific number and have had a lot of success. This does not prove the efficacy of per diem arguments, but it is hard for trial lawyers to ignore their own experiences of what is successful for them. If I noticed a correlation between wearing a red tie and successful jury verdicts, I’d faithfully keep wearing red ties.

September 24, 2008

The Slope Is Rarely So Slippery

by Ronald V. Miller, Jr.

In his blog the Art of Advocacy, Baltimore lawyer Paul Mark Sandler suggests a counter to the slippery slope argument: “The ‘slippery slope’ argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. Most times, a better metaphor would be a staircase with many safe steps along the way.” (No link to this blog because, like many legal blogs, it died a premature death.)

I like this metaphor. My problem with slippery slope arguments is that in real life, slopes are rarely slippery. Looking at this same metaphor through a different lens, George Will wrote earlier this year that life is lived on a slippery slope: taxation could become confiscation; police could become gestapos. But the benefits from both taxation and police make us willing to risk that our judgment can stop slides down dangerous slopes.

Believe me, I know plaintiffs’ lawyers have made the slippery slope argument. I have myself. But it seems like more of an argument I hear from defense lawyers.

August 25, 2008

Should Companies Be Required to Disclosure Expected Litigation Obligations in Product Cases?

by Ronald V. Miller, Jr.

The Wall Street Journal has an editorial with an anti products liability lawyer spin. No surprise. But what is surprising is that I agree with it.

Considering Enron and other business collapses that left stockholders holding the bag with no actual picture of the company’s financial condition, the Financial Accounting Standards Board wants to tighten standards. One requirement would make companies account for the potential cost of ongoing litigation not just regarding attorneys’ fees but regarding the actual value of the claims. The Wall Street Journal editorial says product liability lawyers will use the information to extort settlements and influence jury verdicts.

I’m not worried about either of those outcomes no matter how many times the editorial uses the phrase “extort settlements.” But I think there is a risk of forcing a defendant to publicly estimate settlement and verdict values because I think it tips off product liability lawyers and creates a floor for the value of any mass tort claim. I also think the editorial is correct, that predicting the trajectory of long and complex litigation is inherently unscientific. Mass tort cases are like the stock market in that their values are always changing. A good trial outcome or even a good expert deposition in an MDL can increase or decrease the value of a case. I’ve been involved with mass torts from both sides and believe knowledge of the true value is rarely known even to the insiders until the advanced stages of the settlement process.

June 24, 2008

Picking a Jury in Maryland

by Ronald V. Miller, Jr.

Voir Dire in Maryland is often a hard experience for injury lawyers on both sides of the aisle because Maryland arguably has the most truncated voir dire process in the country. I’ve tried a lot of cases where both lawyers could glean just a few relevant things from the jurors, we make the obvious strikes and both parties end up not knowing anything about who is on their jury. I’ve written a bit about this problem in a previous Maryland Injury Law Center post.

The Maryland Bar Journal has an article this month by Carolyn Koch of Jury Solutions, LLC offering some tidbits on ways to get more information under Maryland’s limited voir dire process. Two of her suggestions I found to be particularly interesting.

Ms. Koch suggests the following question: If you or someone close to you was injured because of someone else’s negligence, do you think you would sue?

June 3, 2008

Forum Non Conveniens Opinion in Randallstown High School Shootings Case

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals ruled yesterday in Peyton-Henderson v. Evans that Baltimore City Circuit Court Judge George L. Russell, III did not err in transferring a lawsuit from Baltimore City to Baltimore County because of the May 2004 shooting at Randallstown High School.

The ruling covers no new ground, but (sort of) retired Judge Charles E. Moylan Jr. lays out the history of the Maryland case law on forum non conveniens. The court underscored the more modern Maryland trend to focus on “the interests of justice” as opposed to concentrating on convenience of the witness. With a standard as amorphous as “interests of justice” you can be sure that excluding some insane finding, the appeals court will defer to the trial judge. Therefore, I’m surprised this case was initially appealed.

Judge Moylan jabbed lightly at personal injury lawyers who forum shop, quoting now Court of Special Appeals Judge Krauser, “while home may be where the heart is, it is not necessarily where the largest recovery lies.” But, in the next breath, Judge Moylan points out that “is beside the point when dealing with the venue statute rather than forum non conveniens” because Plaintiff is well within his or her right to sue anywhere where the venue is proper.

March 27, 2008

Financial Information on Hired Gun Experts

by Ronald V. Miller, Jr.

Our lawyers have long believed that professional expert witnesses’ financial information, including their tax returns, may be discoverable and admissible for the purpose of showing potential bias. Yesterday, the Alaska Supreme Court joined the list of jurisdictions, including now Maryland, that agree with us.

Noffke v. Perez

Noffke v. Perez is a car accident case. An Anchorage, Alaska jury awarded the wife and husband $54,000 and $24,000 respectively. On appeal to the Alaska Supreme Court, the defendant claimed that it was an error for the trial judge to require her expert witness to produce income tax records. Reading between the lines, after a motion to compel the records was sought and granted, the defendant’s expert did what many hired medical experts do after an order to produce their records: they refuse to testify.

February 13, 2008

New Maryland Court of Appeals Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals decided the Titan v. Advance case yesterday. Titan is a case where the Plaintiff alleged negligent repair of a roof that led to the clogging of a roof drain, which then resulted in the Plaintiff’s premises to flood. It is located on Eastern Avenue in Baltimore, Maryland, at Crown Industrial Park. After a three-day trial, the jury found in favor of the Defendants.

As you might have expected, the amount of rain after the job was completed was relevant. Defendants introduced, over objection, a certified copy of the U.S. Department of Commerce’s weather reports from Baltimore-Washington Airport, which reported rain patterns at the airport between the day the roofing work was completed and the date of the flooding off the roof. Plaintiff objected that the weather at Baltimore Washington Airport on that day was not relevant because it was 10 miles from the site.

The Maryland Court of Special Appeals, in an opinion by Judge Arrie W. Davis, found that the documents were relevant because the parties disputed the amount of rainfall. The court further found that despite the length of the documents, the jury could reasonably interpret the recorded rainfall amounts and the court needed no expert opinion to explain the documents. As to the 10 miles between the Baltimore-Washington Airport and the site of the property, the court concluded this went to the weight of the evidence as opposed to admissibility.

February 7, 2008

Voir Dire in Maryland: Follow-up to Judge Sweeney’s Article on Voir Dire in the Daily Record

by Ronald V. Miller, Jr.

Last month, retired Howard County Judge Dennis M. Sweeney wrote an article in a series of articles he is writing for the Daily Record. The latest article discusses voir dire. One point Judge Sweeney makes is that judges have an aversion to proposed voir dire questions that seem to be uniform in every case the lawyer tries. In my last trial, the defense lawyer did not change the names of the parties from the voir dire that they had apparently cut and pasted from the last case. Judge Sweeney writes that they may poison the trial judge to ignore specific voir dire questions—usually put at the end of voir dire consistent with cut-and-paste practices—that may have more merit.

The article also points to dicta in Landon v. Zorn, 389 Md. 206 (2005), a failure-to -diagnose medical malpractice case in which the Plaintiffs appealed a defense verdict. The basis for the appeal was the trial judge’s refusal to ask whether the jury panel had any “preconceived opinion or bias or prejudice in favor of, or against Plaintiffs in personal injury cases in general and medical malpractice cases in particular?” The Maryland Court of Appeals affirmed in a unanimous opinion written by Judge Clayton Greene, Jr. that it is the responsibility of the attorneys to “propound voir dire questions designed to elicit potential bias from jurors, and not to bootstrap a tort reform argument on appeal to a general question inquiring into any potential ‘bias or prejudice’ against plaintiffs in personal injury or medical malpractice cases.” But as Judge Sweeney notes, the court indicated that the lower court may have had an obligation to include a question more tailored to the plaintiff in that case if requested by the attorneys. Judge Sweeney then said that this “places counsel in the position of having to ask the question in many different formulations to hit on the one that may be correct and specific enough.”

But Maryland trial judges love to rush through voir dire as it is, so I shuttered to imagine giving multiple formulations to these judges. I wrote to Judge Sweeney and asked if he had any solution to the Landon v. Zorn problem of having to ask in many formulations to find the most appropriate, noting my concern about how multiple formulations of the same question might risk annoying the court. Judge Sweeney offered this practical response:

November 19, 2007

Jury Trial with State Farm

by Ronald V. Miller, Jr.

I had a jury trial in an auto accident case in Anne Arundel County against State Farm last week. It was a soft tissue injury case with over a year of treatment. It was a case we inherited from another lawyer who retired last year.

The biggest weakness of the Plaintiff’s case is that he had few doctor visits before complaining of the soft tissue injury related to the claim. The Defendant’s biggest weakness was their liability defense never made any sense. The Defendant was, however, elderly and very sympathetic. Because the jury is never told insurance will pay the claim, expect this to be a factor in the recovery’s amount even if they suspect there is insurance behind the Defendant.

The jury found for the plaintiff but awarded only a little over $16,000. This thrilled State Farm, and I became depressed for a few days. They won, and I lost. That is how we both saw it and marked our scorecards accordingly.