Practical Tips for Trial Regarding the Defense Case

New York Law Journal

In my, June column¹ I specified some practical tips lawyers might consider regarding trial preparation. For simplicity, that column assumed the perspective of defending a major product liability case. The instant column also offers practical “tips” but the scene shifts forward from the defendant’s trial preparation to actually putting on the product liability defense case itself. Before this trial phase, the plaintiff’s lawyer has presented his evidence. Now it is the product defendant’s turn. Because of space limitations here, we are going to skip details about presenting expert testimony—a copious subject in itself that involves lots of variables and depends on the expertise involved. That topic merits its own discussion. Nevertheless, there are plenty of other practical considerations besides experts that warrant attention.

Presentation of the defendant’s case in the modern products liability trial is the major opportunity to set the record straight and demonstrate to the jury that the plaintiff is not entitled to recover. Until now the defendant’s product has probably been cast in a very poor light. Possibly, it has been referred to as a device, product or instrumentality unfit for use; one capable of unleashing sudden catastrophe upon an unsuspecting user or bystander; a product woefully behind the “state of the art;” one that could have been made safe for a nominal amount of money, etc. Quite possibly, the defendant’s manuals, test reports, advertisements, email correspondence and other records have been shown to the jury, out of context, and with distorted emphasis. Perhaps some jurors have been influenced to the point of tears by sympathy for a catastrophically injured plaintiff.

Until this moment, defense counsel has attempted to limit the plaintiff’s proof, discredit the plaintiff’s witnesses, raise inconsistencies and elicit favorable points. He has tried to use all his skills to keep the case manageable. Now, however, the defense can tell its story; demonstrate the distortions; convince the jury about the integrity and reasonable safety of defendant’s product.

Most jurors view the commencement of the defense case with anticipation. They expect to be given an answer. Counsel early on urged them to keep an open mind. He promised them another side of the story. Now is the time he is expected to deliver. There is unusual attention focused upon the defense attorney, and there is a sense of drama attached to the moment. How is counsel to proceed?

No hard and fast rules exist. There is no magic formula for success. The seeds of a defense victory must have been planted earlier by preparation and hard work well before trial. Counsel’s personality, imagination, charm, preparation and sense of organization and timing will influence the course of the defense presentation. In discussion of the following thoughts, no attempt has been made to set forth a guide or an exhaustive treatment.

1. Have you taken stock of plaintiff’s case?

As the plaintiff’s case-in-chief draws to a close, counsel should fully evaluate what plaintiff has really proved. What has the jury really been told? What have they seen? There may have been numerous evidentiary disputes, speeches by plaintiff’s counsel, arduous examination and cross-examination of witnesses. Some, however, may have been out of the jury’s presence. There may have been voluminous expert testimony and introduction of demonstrative exhibits, but much of it may have been incomprehensible, unimpressive, unconvincing or minimally relevant. Among the questions counsel should ask himself are the following:

1.  How has the defense been hurt?
2.  What was plaintiff’s trial plan? Did it succeed?
3.  How effective was it?
4.  What about the plaintiff’s case requires response or refutation?
5.  What were the vulnerable points of plaintiff’s proof?
6.  Were there inconsistencies among plaintiff’s lay and expert witnesses which should be exploited?
7.  Were there witnesses plaintiff elected not to call? Why?
8.  Has the plaintiff’s theory, as reflected by the proof, changed from that indicated in interrogatory answers, pre-trial statement or expert depositions?
9.  Are there gaps in the proof that need to be filled by the defense?
10.  What points appeared to impress the jurors or provoked observable reactions?

Other pertinent, self-reflective questions will readily come to mind. By making this kind of evaluation, counsel can appropriately refer to his own trial plan to determine what needs to be modified, eliminated or supplemented. He will get a better feel for the points which need emphasis by the defense.

   2. Have you mapped out the defendant’s proof?

Of course, counsel has at this point already given great thought to what proof to put on. In connection with the evaluation suggested in the preceding section, counsel finalizes his plan. Naturally, he has kept his client and witnesses informed of the progress of the trial and the dates they must be present for final preparation and testimony. By maintaining such contacts, counsel may have obtained further input from his client or the defense experts. It is helpful to have a defendant’s expert, familiar with the product, present throughout the trial. If this presents a hardship, he should at least be present for plaintiff’s expert testimony to lend assistance.

In finalizing his plan, counsel should give due consideration to logistics. Counsel should budget his available time properly so that enough time is set aside for productive discussions with his witnesses. Nothing is more frustrating to other members of the defense team than a witness flying great distances to be present several days before testifying, only to find that counsel does not have time to meet with him until the morning he is scheduled to testify. If counsel cannot meet with the witness, it is helpful to have a trial assistant do so.

  3. Have you carefully planned your order of proof?

Remember, the start of the defense case can be a rather dramatic moment, when juror anticipation is high. Thus, counsel should consider putting on a strong witness to present an effective, brief and hard-hitting direct testimony. The witness’ testimony should be logical, orderly (though not necessarily chronological) and should build toward some sort of climactic impact. If counsel uses brief, clear and cogent questions the strong witness’ testimony may satisfy the jury’s anticipation of drama.

In preparing his order of proof, counsel should consider starting and ending with his strongest witnesses and call the weaker ones in between. However, not all planning can be implemented exactly as desired. Logistical problems can easily set in when a key defense expert, for example, has been unavoidably detained elsewhere because his testimony in another trial has been prolonged. By keeping a cool head and considering aspects like timing, counsel may find an approach that minimizes the problem. For example, if it is well along in the court day, counsel should ask for a recess for the rest of the day until the witness can perhaps appear early the next day. If the problem materializes late on a Thursday, counsel might consider requesting a recess until after the weekend. Many judges will understand that experts are involved in other cases and will grant brief postponements so long as there is no abuse.

Assuming counsel is not presented with such a crisis, most lawyers prefer that the strong witness should lead off. However, no rigid rules control. Something in the plaintiff’s case may be so fresh in everyone’s mind that it justifies treatment at the outset. It may then be advantageous to put on an effective witness with respect to the specific issue, though he is not the strongest or “best.” In such a situation, it is not the witness who provides the drama but the effect of what he says on the specific issue. Sometimes, the strong witness needs preliminary foundation testimony. Counsel will then call the preliminary witnesses at the outset but will try to keep their testimony hard-hitting, short and sweet.

Sometimes, because of the complexity of the product, the jury first needs to be properly introduced to it. This can be done effectively by a witness familiar with its design and construction even though trial counsel does not feel he is the “best” or strongest testifier. The effectiveness of a witness to project knowledge, honesty and sincerity on the issue is anyway a rather subjective matter. Trial lawyers sometimes make up their minds too quickly about a witness’ abilities, a trait probably resulting from the lawyer’s need to make snap decisions. Such impressions can be erroneous.

Excellent trial lawyers often say that they had reservations about a particular witness’ ability, only to later report that the witness testified very well. Similarly, there has been positive juror reaction (by interview after trial) to a witness who some thought might be ineffective. The point to be made is that the first witness should be a good witness—and effective—even if not necessarily the “best.” A good witness’ testimony can be made more effective by use of demonstrative materials such as slides, blow-ups, models or the product itself. However, finishing the case with a strong witness is desirable to leave a positive impression with the jury. Such a witness can also “clean up” some matters that require clarification.

  4. Have you considered timing and maintaining momentum?

Effective presentation of the defense case often hinges upon counsel’s instinctive ability to properly time important developments. If something is important for the jury to know and attention is required to grasp the matter, it makes sense to put the evidence on in the morning when many of the jurors are fresh and attentive. Counsel should keep an eye on the clock. Many dramatic developments have been dissipated because progress to a climax was interrupted by a recess or because plaintiff’s counsel was given overnight or a weekend to prepare a countermeasure.

Timing also involves an instinctive appreciation of when counsel is overdoing something, unduly prolonging it or not maintaining interest. Sometimes, however, counsel has no choice but to proceed because certain evidence must come in no matter how undramatic it may be. Also, just because jurors may look disinterested does not mean they are. They may just be uncomfortable or temporarily distracted. They may be listening casually. The evidence may later strike a responsive chord.

Timing is also a factor when a trial is lengthy. Many products trials last weeks and even months. That is a long time for jurors to be away from their jobs or other activities. Understandably, jurors get “antsy,” particularly after a lengthy plaintiff’s case. Counsel has to be sensitive to the “antsy” problem and avoid creating a feeling by the jury that the defense is stalling. Many an experienced trial attorney has found it necessary for this reason to abbreviate the defense testimony and even omit witnesses. Obviously, no general rules can be fixed on this. However, counsel can go a long way toward minimizing the problem by maintaining momentum. A hard-hitting, brief, direct case can project a sense of movement. In such cases an intensive or laborious cross-examination by plaintiff’s counsel can frequently be turned into a decided plus for the defense. The jury may become irritated or annoyed at the protracted nit-picking and repetition associated with a lengthy cross.

Even a great defense witness starts to become less effective at a certain point in time. Counsel should keep the timing and momentum factors very much in mind.

  5. Tell your story; be positive; have a theme

Plaintiff’s case will often focus on a specific part or feature of a product which, for a few dollars, could have been made or designed differently. The attempt may be to portray that feature as a relatively simple item to remedy. In projecting this image, plaintiff’s counsel will frequently disregard the other features of the product or will take the criticized component out of context of the entire product. The defense plays into the plaintiff’s hands if it fights the battle only along the lines demarcated by the claimant. Merely refuting the plaintiff’s experts on the specific matters they chose to discuss just creates a “swearing contest,” pitting one expert against another. Such a contest is likely to be decided for the plaintiff on grounds of sympathy, especially if the experts’ duel amounts to a kind of “stand-off.”

However, if the defense tells its own story about the product, describes its positive features, demonstrates its functions, illustrates its advantages, familiarizes the jury with the complex design or construction problems, shows that it complied with standards, that it met or exceeded the “state of the art” when it was built, and that it was “reasonably” safe, a valuable theme will have been communicated. The defense will want to project the defendant’s confidence in the integrity of its product and the reasons why this is justified. Through the defense witnesses, the utility and features of the product can be considered in their positive aspects.

In conveying the defense theme, the defense witnesses have to be prepared to “own up” to the possibility that injuries might occur during use of the product. They should particularly be prepared to answer “loaded questions” on cross-examination. The possibility that injury might occur does not make the product “defective” or “unreasonably dangerous” or “unsafe.” An element of “reasonableness” must be projected in positive fashion to the jury. If a product is a reasonably good one, the defendant, counsel and independent experts will find quite enough to say about its good features, and these ideas should be bound together into a positive theme. Don’t fight the case simply on the plaintiff’s lines. Tell a positive story.

As part of his theme, counsel will undoubtedly wish to show that there exists no “defect” in the product. In addition, counsel likely will wish to demonstrate that the injuries were not caused by the feature complained of but by other causes not attributable to the product. Sometimes, the plaintiff’s own lack of care makes him the author of his fate. Although the effect of a plaintiff’s negligent conduct upon strict tort liability is sometimes unclear and may only diminish a recovery, a plaintiff’s negligence could nevertheless be most relevant on the question of proximate causation. This issue can be a very vital element in the defense theme.

Endnotes

1. M. Hoenig, “Some Practical Tips on Trial Preparation,” New York Law Journal, June 13, 2016, p. 3.