Trial Magazine

Most trial lawyers prepare cases with an eye on trial. The vast majority of civil cases, however, never make it to a jury. In 1938, when the Federal Rules of Civil Procedure were first promulgated, about 20% of all civil cases went to trial.¹ Today, less than 2% do.²

Because most of our clients’ cases will never make it to the jury, it behooves us to focus on two distinct and very different audiences while working up cases: first, the jurors; and second, the defendant’s decision-makers­—that is, its insurance adjuster and in-house attorneys.

The more damaging the evidence against the defendant, the more likely the defendant will meet your settlement demands. However, the defendant’s decision-makers don’t necessarily give equal weight to similar evidence in similar cases, so comparable cases can have vastly different outcomes.

Take, for example, a case in which the plaintiff, a 70-year-old man, worked in industrial settings throughout his career. He was exposed to asbestos at multiple different jobsites through different products. He developed mesothelioma and eventually passed away, leaving behind his wife and adult children. The parties reached a substantial settlement.

In another case with the same basic facts—a 70-year-old man also worked in industrial settings throughout his career, developed mesothelioma, and passed away, leaving behind his wife and adult children—the parties reached a settlement double that of the other case. Why is one case worth twice the other? The ways plaintiff attorneys gather evidence and present testimony play large roles in settlement outcomes. Use these tips to create a strong settlement demand.

1  Don’t Let Defendants Use Protective Orders as Swords

Attorneys who handle products liability cases have likely seen plenty of discovery responses that read, “[Defendant] will produce certain documents . . . only after entry of an appropriate confidentiality agreement and/or protective order in this matter,” or “In the absence of an appropriate confidentiality agreement and/or protective order, [Defendant] should not be required to disclose certain information.” For too long, defendants have successfully, and with little resistance, weaponized protective orders against plaintiff attorneys, our clients, and the public as a whole.³

There is no reason for trial lawyers to agree to defendant-proposed protective orders. When defendants address the confidentiality of their documents, they routinely do so as if they speak from a position of strength. They do not. In Publicker Industries, Inc. v. Cohen, the Third Circuit stated, “Public access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs. Therefore, we hold that the ‘First Amendment embraces a right of access to [civil] trials . . . to ensure that this constitutionally protected ‘discussion of governmental affairs’ is an informed one.’”⁴

For that critical reason, the party asking for a protective order bears the burden of justifying confidentiality for every single document it wants to seal,⁵ and that requires that the defendant show “good cause” with specificity.⁶ It is incumbent on each of us to understand the defendant’s burden and to hold the defendant to it.

Don’t hesitate to reject provisions in a defendant’s proposed protective order or to propose provisions that accurately track the rules. If the defendant refuses to agree to a proper protective order, file a motion to compel, and force the defendant to justify its position to a judge. Refuse to allow the defendant to hide valuable discovery behind its “need” for an unfair and improper protective order.

Even when the defense appropriately asks plaintiff counsel to entertain a protective order, there are several important considerations. First, never blithely agree to destroy documents after a case resolves. In products liability cases especially, we will see a similar case in the future. Why allow the defense to force plaintiff attorneys to reinvent the wheel every time we have a similar case?

We must also insist that any stipulated protective order includes a “sharing provision” that ensures we’re able to keep confidential documents for our own use in other cases and lets us share the documents with plaintiff attorneys who are handling similar cases.

Place the burden to justify confidentiality where the law does: on the defense. Any good protective order will include a provision that states that if the plaintiff objects to a confidentiality designation, the defense—and not us—has to file a motion to maintain that designation within a certain number of days of receiving the objection. The law places the burden on the sealing proponent, and we should not choose to undo that.

Once you have the right protective order in place, analyze the defense’s documents carefully with the correct standard in mind. If the defense designates a document as “confidential” bogusly, raise your objection early. This does three things. First, the defense attorney will know you’re on top of the obstacle. Second, you’ll be able to use crucial defense documents without obstacle. Finally, the defense will not be able to hide behind its “confidential” designation in other cases.

2  Push for Meaningful Discovery

In products liability cases, the defendant often has almost all of the information related to liability. Obtaining meaningful discovery is everything. For example, in a very large litigation involving a well-known herbicide, defense attorneys tell jurors around the country that the defendant’s products and their “active ingredients” are the most studied chemicals in history. They claim that the U.S. government and other agencies around the world have correctly concluded that their products are perfectly safe. What they don’t say—and what our clients can’t know—is that many of the company’s own studies show that the product does, in fact, cause tumors. Those documents are, of course, in the defendant’s files.

3  Don’t Let Defendants Skirt Discovery Requests

The Federal Rules of Civil Procedure require defendants to disclose information relevant to plaintiffs’ claims in civil cases.⁷ In many states, such as California, parties must provide specific information if they are unable to comply with a request for production. The California Code of Civil Procedure, for instance, requires parties to:

“affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”⁸

Many defendants don’t try to comply with these requirements. Instead, they routinely provide noncommittal, vague, boilerplate responses. If we allow this, those ambiguous responses prevent us from determining whether the defendant searched properly for discoverable documents or whether they are improperly withholding discoverable documents. You can take several steps to apply pressure on the defense to fully respond to discovery and produce all the relevant documents in its possession.

Meet and confer. Sit down with defense counsel and request complete and straightforward responses. If the defendant drags its feet or refuses to provide adequate responses, move to compel and request sanctions. This invariably leads to the “new discovery” of documents on the eve of the hearing.

Network. Oftentimes, a defendant will be craftier and more opaque about its discovery abuse. Defendants regularly provide seemingly complete responses, claiming to not have responsive documents. Remember that products liability and mass tort cases involve many victims and multiple firms litigating against the same or similar companies in multiple jurisdictions. Seek help from other firms who have dealt with the same defendant.

The easiest way to find potential ally firms is through list servers maintained by groups like AAJ, your state trial lawyers association, or other trial lawyer groups. For products liability cases, AAJ’s Products Liability Section and Litigation Groups are great resources to collaborate with others working on the same litigation. The best way to get materials is to ask. Post a request on the list server for documents, discovery responses, and deposition and trial transcripts.

Do a little sleuthing. Run searches on Westlaw, Lexis, or PACER to find publicly available information on the defendant. Once you identify other cases against the defendant, you’ll be able to identify and contact the plaintiff firm that handled the case. Also, you can almost always download documents directly from court websites.

Once you have these materials, you might notice how the defendant offers up one nugget of information in one case and a different nugget in another case. For example, in a case we handled, the defendant had been providing varying levels of documents from case to case. When we realized that the defendant had been holding out on us, we immediately demanded that it produce every page that it should have already produced and threatened sanctions.

This put enormous stress on the defendant in a palpable way. For the most part, the local attorney exited the conversation, and we commanded the attention of the national coordinating counsel. In addition to producing thousands of supplementary documents, the defendant engaged fully in settlement and paid the highest number it had ever paid in similar cases.

In another products case our office handled, the defendant denied in multiple discovery responses over the years ever selling asbestos-containing products. We knew this was a lie because we had depositions and discovery responses in which the defendant stated otherwise to plaintiff lawyers in other jurisdictions. Even though our clients had settled years before we found this information, we were able to bring a fraudulent inducement lawsuit, and the defendant wound up compensating the plaintiff even more.

4  Make the Defendant Produce More Than an ‘Empty Suit’

Federal Rule of Civil Procedure 30(b)(6) and its state counterparts require corporate defendants to designate witnesses to testify on their behalf in a meaningful way.⁹ Defendants often claim that they do not have a witness with the knowledge to testify on a subject. This is especially true when a substantial amount of time has passed since the product injured your client and you have started to prepare the case for trial. Employees move on to positions elsewhere, retire, and even pass away. And oftentimes, the defense just doesn’t want to find the right person to testify because it knows that doing so will help your case.

But defendants often ignore the rule’s language. Rule 30(b)(6) mandates that the defendant designate and educate a person to testify on its behalf.¹⁰ That means that the defendant cannot simply put up an empty suit. It must sufficiently prepare a representative on the listed topics. When a defendant fails to do so, there are grounds for sanctions.¹¹ In this vein, it is critical to make a clear record of what the representative knows; how they learned it; what they did to prepare to testify; and what documents, media, and items they reviewed.

Create a record that you can stand on when you ask the court for sanctions. This is critical. For example, we had a case in which the company’s representative was very poorly prepared. To make matters worse, he admitted that his attorney spoon-fed him the little information he did have, which the attorney compiled for him in a binder, complete with tabbed sections. The representative relied on this binder so much that every time we asked him a question, he referred to it—and sometimes even asked us which tab to turn to. That preparation was not sufficient, and the court granted our motion for sanctions. The company representative wound up testifying at three separate depositions, all at the defense’s cost.

Remember that Rule 30(b)(6) and its state counterparts relate to depositions. Nothing in the federal rules, or most state rules, exempt the witness from testifying within the rules of evidence at trial.¹² What does this mean? The rule requires corporate witnesses to testify within their personal knowledge.¹³ So, just because a witness is testifying as a corporate representative, they may not recite what the company told them to say. Some judges might not agree, but it is worth researching and filing motions to limit this improper testimony before trial.

5  Lean Into Your Damages Case

If we can’t prove liability, a discussion of damages is all but moot. Punitive damages most often come into play in more egregious products cases.¹⁴ But most products liability cases come down to compensatory damages.

In cases in which the plaintiff has a shortened life expectancy, it’s essential to depose them as soon as possible. Your focus should be on having your client discuss how the injury or disease has affected their life. Start with a “before and after” comparison. What was your client’s life like before the diagnosis? What is it like now? For jurors to understand a person’s damages, they need to understand what your client had and what they lost because of the defendant’s conduct.

Steer the plaintiff to talk about how their condition has affected their spouse, family, friends, and community. Do they feel despair because they have to lean on others? Do they feel that they disappoint their children and grandchildren when they can’t attend school and extracurricular activities or birthday parties? Are they unable to fulfill their responsibilities? This approach lets your client describe their situation in a powerful way. Later in the case, have your client’s family or friends testify, describing how the illness or injury has diminished your client’s enjoyment of life.

Besides family and friends, are there others who can illustrate how the product has damaged your client? Treating physicians are persuasive witnesses because jurors are more likely to view them as unbiased, and they speak from a position of authority. Supervisors and co-workers may also provide compelling testimony. This is especially true when we’re talking about a person who has a strong loss-of-earning-capacity claim. What better way to describe the plaintiff’s damages than having a co-worker share how they’ve watched your client lose the ability to work?

As trial lawyers, it is our job to champion our clients’ causes. To do that, we must consider the audiences we address in litigation: the jurors and the defense decision-makers. Defense attorneys know when to tell their adjusters and in-house lawyers that the plaintiff’s case is too strong to go to trial. A settlement that makes the plaintiff whole is then likely. Whether you catch the defendant lying in discovery, hiding behind “confidentiality,” or offering up a representative who has no knowledge of the issues at hand, careful case development and planning for future similar cases can help you reach the best settlement for your injured client.

---

Chris Johnson is a partner at Waters Kraus Paul & Siegel in Dallas and Galiher DeRobertis & Waxman in Honolulu. Susan Ulrich is a partner at Waters Kraus Paul & Siegel in Los Angeles. They can be reached at cjohnson@waterskraus.com and sulrich@waterskraus.com.

---

Notes

1. Jeffrey Q. Smith & Grant R. MacQueen, Going, Going, but Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does It Matter?, 101 Judicature 27, 28 (2017); see also C.J. Williams, Advocating Altering Advocacy Academics: A Proposal to Change the Pedagogical Approach to Legal Advocacy, 25 Suffolk J. Trial & App. Advoc. 203, 212–13 (2020) (describing the number of state civil cases proceeding to trial as only .06 to 1.8% of the total number of civil cases and less than 1% of federal cases proceeding to trial).
2. Smith & MacQueen, supra note 1, at 28.
3. See generally Karla Gilbride & Jared Placitella, Overcoming Secrecy, Trial, at 18 (Nov. 2022).
4. 733 F.2d 1059, 1070 (3d Cir. 1984); see also In re Avandia Mktg. Sales Practices, & Prods. Liab. Litig., 924 F.3d 662, 670 (3d Cir. 2019).
5. In re Avandia, 924 F.3d at 671.
6. Id. (outlining the sealing proponent’s burden and non-exhaustive factors courts will consider).
7. Fed. R. Civ. P. 26–37.
8. Cal. Code Civ. Proc. §2031.230.
9. See generally Fed. R. Civ. P. 30(b)(6).
10. Id.
11. Fed. R. Civ. P. 37(d). See, e.g., Omega Hosp., LLC v. Community Ins. Co., 310 F.R.D. 319, 323 (E.D. La. 2015).
12. See Charles W. Branham III, Control the Story, Trial, at 34 (July 2022).
13. Fed. R. Evid. 602.
14. See, e.g., Johnson v. Monsanto Co., 52 Cal. App. 5th 434, 456 (Cal. Ct. App. 2020) (upholding jury’s decision to award punitive damages when the jury initially awarded $250 million in punitive damages); Ingham v. Johnson & Johnson, 608 S.W.3d 663, 719 (Mo. Ct. App. 2020) (discussing case in which jury awarded $4.14 billion in punitive damages).