Trying the admitted liability auto case: The art of villainizing

Mr. Von Doom, Mr. Magneto and The Green Goblin

Robert T. Simon
2014 May

Every good trial attorney knows that the best way to obtain a large verdict is to play on the jury’s heart strings. In cases where the defendants are denying liability, this is easy. Most jurors, regardless of the venue, respond strongly to themes of failing to take any responsibility for one’s own reckless behavior, showing no remorse, learning no lessons, and blaming the victim. But what happens if, on the eve of trial, the defendants admit liability? It can be difficult to introduce those themes when liability is admitted. So the question remains – How do I elicit a strong emotional reaction when liability is not in dispute?

Pick your villain

In the months leading up to trial, identify all of the key players – the defendant, defense experts, defense attorney, etc. – and “pick your villain”. Every story has a hero, and every story has a villain. Have you ever heard the old poker phrase “If you can’t find the sucker in the room, it’s probably you”? Well, the same rings true when trying a personal-injury case. Juries instinctually will dislike your case because you are asking for too much money. So, if you cannot find a villain on the defense side, look at your side of the table – it could be your client, your expert or – gasp – even you!

You should concentrate on thinking of the plaintiff’s side as the white knights, and the people across the table as your villains. But who will it be? There are three main groups to choose from – the defense attorney, the defendant, or the defense expert(s). You should be able to pick at least one in any trial, but hopefully, you will be able to use all three

Villain #1: the defense attorney

You should be able to tell within five minutes of meeting opposing counsel whether they are your villain. They are fairly easy to spot – loud, aggressive, in your face, insurance-propaganda-Kool-Aid-drinking, and abrasive. They are the type of people who hate you, your client, the system, and their job. Everything is a fight – no matter how small or how hopeless their arguments are. They will fight you tooth and nail on every evidentiary issue and will fail to see how their case has any shortcomings. For illustrative purposes, we will call this person “Mr. Von Doom.”

Opening

In your opening statements, after telling the jury what the evidence will show, tell them the main reason we are here is because the defendants refuse to accept responsibility to be accountable for all the harms and losses of our client. Always refer to Mr. Von Doom as a very skillful and savvy attorney when speaking to the jury. For instance:

The skillful Mr. Von Doom has hired experts to try and confuse you from the issues.

The skillful Mr. Von Doom will try and take things out of context, and detract you from what is really at issue in this case; which are the injuries to my client. Just remember, when he brings up something that is not relevant, he is doing it for a reason: to confuse you.

Corporations and defendants pay large sums of money for these skillful attorneys such as Mr. Von Doom to come in here and muddle the issues and try to get a discount for the harms they created.

Statements such as these will really get the Von Dooms of the world frazzled and worked up. They will go on the offensive in their opening statements and be overly aggressive and abrasive with witnesses. They cannot help themselves – it is in their nature.

The most important item to remember when choosing to villainize Mr. Von Doom is that you never stoop to his level. If he is your villain, you must think of yourself as the white knight. Do not take the bait and play in the mud or engage in below-the-belt shots. Be overly nice – give the jury the impression that you do not need to play dirty to win because you are not hiding anything and that the facts are in your favor.

Defense expert witness examinations

Most people who hate lawyers do so because they think they are trying to hide the truth from them. Use this to your advantage. When the defense expert witness is on the stand, bring up things like “Mr. Von Doom never showed you this MRI, did he?” – “Isn’t that something you would normally like to see when forming an opinion?”

Study the record reviews and the IME reports – there is always something that the defense attorney forgot to give them. Maybe it is a deposition or a photograph – it could be anything. Make the jury think that Mr. Von Doom failed to hand over these vital pieces of information in an effort to hide something from them.

Your client’s examination

This is an opportunity to really show the jury how much of a bully Mr. Von Doom has been. Go through all the written discovery in the case, correspondence with defense, and the deposition of your client. Pull out all of the inflammatory tactics that Von Doom has engaged in and show them to your client before he takes the stand. This will allow your client to testify about the anxieties and stress of trial. Show the jury how much emotional distress your client has had to go through just to get his day in court – no one likes being called a liar, and it will certainly resonate with the jury.

There are certain defense attorneys who are famous for these kinds of tactics. They will send you letter after letter telling you that your case is frivolous and will send over an obscene amount of irrelevant, harassing discovery to drown your client. Use this to your advantage – for instance:

• Remember that letter Mr. Von Doom wrote you telling you that this lawsuit was frivolous and needs to be dismissed immediately?Remember all of the discovery you had to respond to – asking about your eating habits the day of the accident and your dating lifeDo you remember when the defense attorney took your deposition for six hours and asked intrusive, irrelevant questions for a simple car accident?

On cross, make sure your client knows not to take Mr. Von Doom’s bait. We like to coach our clients to “kill him with kindness.” Another good tactic is to limit objections when your client is being cross-examined – too many objections make it seem like you are hiding things and do not want the jury to hear evidence. Remember – think of yourself as the white knight. We have nothing to hide – ask anything you want!

Closing argument

Be sure to point out all the creative lawyering that Mr. Von Doom tried to pull during the trial. Make an entire slide about it in your closing PowerPoint followed by the jury instruction that says a lawyer’s questions are not evidence. Remind the jury every time Mr. Von Doom took depositions out of context.

One very effective tactic to use during closing arguments is to ask Mr. Von Doom questions that “you’d like to know the answer to.” You can put them in writing on your last slide of the PowerPoint. Ask Mr. Von Doom to answer these questions, because we are all wondering. All of these questions are usually ones that they cannot answer. And they will look terrible for not answering and avoiding them all together. If they take the bait and answer the questions, they will be thrown off of their game and detract from their original closing – it’s a win-win scenario!

But what happens if the defense attorney is not a “Mr. Von Doom”? What if you cannot villainize him? Where do you turn next?

Villain #2: the defendant

In almost every trial we can still push the accountability theme, regardless of liability. The defendant wants to say they are sorry, but then say they are not responsible or accountable for the damage they have done. There is no better way to drive this home than having the defendant on the witness stand. For illustrative purposes, let’s call the defendant, Mr. Magneto. Here are some pointers for making the juries despise the defendant:

Discovery responses

Go through all the defendant’s discovery responses where they put insane answers, usually crafted by their lawyers, where they say things like “I deny that the Plaintiff is hurt” or “Plaintiff failed to mitigate her damages.” This can really blow up in their face. Read them to Mr. Magneto and then ask if he even knows the damages to your client. Most of the time, Mr. Magneto is extremely unprepared and will not know the injuries to your client, making himself look silly  and nonchalant. Publish these discovery responses to the jury. Make the jury see how important this trial is to your client and how unimportant it is to Mr. Magneto.

Failure to apologize

One thing that we have found that really infuriates jurors is when defendants fail to apologize or show remorse for what happened to your client. Here are some of the types of questions that we like to ask the defendant regarding this topic:

Mr. Magneto, you knew my client was hurt at the scene, right? You knew they were taken to the hospital, right? Did you ever reach out to them in the hospital to see how she was doing? Did you follow up at all to check in on her? Did you ever even say you were sorry?

The best question to ask, and the one that gets objected to most frequently, is “Have you learned any lessons from this experience”? In our experience, most defendants cannot articulate any lessons they have learned. This really  hits home with a lot of jurors and can help drive up your general damages award for your client.

Closing Argument

This is where you really have to hammer home the themes of responsibility and accountability. Tell the jury that in our community, when we mess up, we take responsibility. If your recklessness caused harm, you have to pay for all of the harms and losses suffered. You do not hire an expensive lawyer and try to get out of paying for your mistakes. It is not right to try to get a slap on the wrist when your client suffered much more than that.

Also, bring back the testimony where Mr. Magneto failed to learn any lessons from the experience. Tell the jury that most people are taught these lessons from their parents at a really young age, “You break it; you buy it.” Explain to them that Mr. Magneto has never learned that lesson. If you have been the white knight during this entire trial, this is where you can let Mr. Magneto really have it. But what if your defendant is Aunt Bee from the Andy Griffith Show? You certainly do not want to harass a little old lady in front of the jury. Where do you turn next???

Villain #3: the defense expert

Every once in a blue moon we get the straight-shooter defense expert. They are credible, their opinions reasonable, and they do not have a ton of bias. Trust me, these experts actually exist! But, for the most part, we all see the same defense experts over and over and over again. All these villains have the same faces, so I will collectively call them, the Green Goblin.

Before

The real way to beat the Green Goblin is in the preparation before trial. An entire treatise can probably be written on slaying the Green Goblin in this stage, so I will keep it brief. Go to his office for the deposition and take as many photos around as you can. Gold can be found! Ask the CAALA Listserv for information and recent activity on the expert. Read prior depositions of the Green Goblin. Most of the time you can set it up in depositions with direct impeachment based on what you already read in prior depositions or his actual expert activity.

The Green Goblin always lies about where he was the week before, and where he will be the week after next. He cannot help it. They know their constant defense work looks bad, so they always downplay how often they do it. Be prepared, do your research, and you will have defeated the Green Goblin before it even takes the stand. Pumpkin bomb and all!

Jury Selection

Plant the seed early. Ask the jury if any of them have experience as a plaintiff in a lawsuit. Ask them if they ever were examined by a doctor for the other side. Ask them to talk about it. Right away you get these people to tell their story on how the defense expert lied in his exam, and made stuff up, and said how that juror was not hurt when they really were.

Then, ask the panel who thinks experts can be bought? Ask any doctors on your panel if they know anyone who does expert work. Ask them if these people have “been bought.” Ask the jury, as they sit there today, are they more likely to believe an expert who has been hired by a party, or a doctor who is coming via subpoena, not hired by either party. Then ask them why. This will set the stage for the jury to despise the Green Goblin.

Opening Statement

It is very important that you always videotape the Green Goblin’s deposition. This allows us to tell the jury in opening what his opinions will be, how these opinions are ridiculous, and how biased The Green Goblin is. Play the best clips you can. Tell the jury in opening that you will prove the bias of the Green Goblin and give examples. If you know how much he makes a year, tell the jury. If you know how often he works for the defense attorney, tell the jury. Do not let the defense attorney beat you to the punch during the Green Goblin’s direct and soften your blow. If you have a true Green Goblin, let it be known right away. Expose it!

Examination

The biggest thing to understand about the Green Goblin is this – he is a liar. Not only this, but he knows his science and his area of practice better than you do. Do not battle The Green Goblin on his home turf! Play on your terms! Go after him on bias, his lies, get concession, and get out.

Hopefully the Green Goblin gets so rattled with all the bias you found that it will start to free fall. Then cue the video deposition for some fun impeachment. If this is done correctly, the jury will already hate The Green Goblin before it even takes the stand. They will be rooting for you, their hero, to slay him in open Court.

Robert T. Simon Robert T. Simon

Robert T. Simon is co-founder of the Simon Law Group and acts as the primary trial attorney. He is a proud member of ABOTA, CAALA, CAOC, CASD and OCTLA, is a past president and active board member of Los Angeles Trial Lawyers’ Charities.

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