Breaking it Down
Litigators must thoroughly explain to jurors all concepts regarding product liability
in order to win big verdicts.
BY MARSHALL L. HENNINGTON AND MELISSA L. WHITSON
When presenting a product liability case to jurors, it is important
to present a comprehensive array of information. There are many issues
to consider regarding product liability and unfair business practices.
Key points in the case investigation and preparation should be foresee ability, duty to warn, responsibility, burden of proof, malicious
intent,
oppression and disregard for consumers' well-being. It is important
for litigators to fully explain these concepts in lay terms to jurors,
in order for jurors to fully grasp the case dynamics and understand
the argument.
Was the Problem Foreseeable?
To begin with, jurors will want to know how long this problem or defect has existed
and especially if there is no injury, why it is now an issue. Proof that an
unfair or injurious practice has been going on for a long time will usually appeal
to a juror's sense of justice. It will enhance the idea that the defendant has
been "getting away with it" for far too long. Jurors need to have a
reference point to gauge the enormity of the problem(s).
It is also important to show that a pattern of misconduct by the manufacturer
has emerged. Demonstrate that your case is not an isolated incident. Show that
the company's culpable actions have been occurring (or a significant amount
of time). Jurors are more likely to rule against a manufacturer if they
understand that this was clearly not an accident or fluke but was
a preconceived act intended to cover the company's bottom line,
regardless of the potential danger it posed to individuals.
For liability involving personal injuries, the law requires that
the manufacturer foresee to some extent potential misuse of the product
by the consumer. Consequently, the manufacturer must take precautions
to minimize possible harm from misuse or abuse of its product. Plaintiffs'
attorneys should explain such responsibilities, or lack thereof,
to jury members. If jurors understand that manufacturers need to
foresee potential misuse when designing, manufacturing or
promoting a product, they will be less likely to blame consumers
simply because they used the product.
Warning Labels
Odds are that jurors will not be aware that guidelines exist concerning a manufacturer's
duty to warn. Often jurors, especially if they are highly educated, will assume
that common sense should lake on a bigger role than it actually does with consumers
(e.g.. all consumers should be aware of certain inherent dangers).
Generally speaking, jurors should know that providing
a warning label for a product lakes little time but often makes a world of difference.
Warning labels are often
the safeguard against the defendants' strict liability. If a product does not
have a warning label, drive this fact home. Manufacturers are accountable to
the consumer. It is the
duty of the attorney to get this point across to jurors.
A Manufacturer
Has Responsibility
To Provide Information About Its Products
The big question jurors will wrestle with is: Whose responsibility
is it to educate the consumer about the product?
Often if jurors discover that consumers
have access to the truth about a product, through items such as
manuals, instructions or
a Web site, then they believe it is the consumers' responsibility
to
know about all aspects of the product. However, deceptive packaging
practices occur on a frequent basis. This contributes to the lack
of information about the merits of a particular product. Therefore,
if manufacturers do not provide this information to consumers,
it
is imperative that
the jurors are told about this substandard, unethical practice
and are reminded about the manufacturer's duty to warn. When a
product
lacks information, jurors often believe that the manufacturer consciously
set out to defraud the consumer(s).
Prove the Consumer Lacked Information
For unfair practice cases, you want to prove that nowhere on the
product(s) do the manufacturers inform the consumers about the
truth. To avoid any problems in this area, it is often better to
try a case
in which an unfair business practice is beyond the consumer's power
of choice (e.g.. company has a monopoly on the product) and there
is no way that the ordinary consumer will ever discover the truth.
If this is not possible, at least demonstrate to the jury that
the information is provided in such an obscure manner that the
average person would
have difficulty locating it and that this was done intentionally
to deceive and defraud consumers. Jurors always want to know the
truth.
To demonstrate that this product is the exception, and not the
rule, a price-and-product comparison with other companies should
be provided.
Along the same lines, if there is a standard for the product and
the standard was breached, bring this to the jurors' attention,
as well. Otherwise, they will tend to minimize the damages and
assume
that like companies operate in a similar manner.
If the Manufacturer
Disregards Consumers Well-Being or Acts Maliciously, Assign Responsibility
If an unfair practice or defective design intentionally targets
or excludes a certain race, gender, class or age, demonstrate this
to
the jury. Jurors today are especially sensitive to discrimination,
racial profiling or the possibility thereof. Proof, or even a reasonable
suggestion, that a group is being discriminated against may have
a significant influence on how jurors feel about
your case.
In addition, try to prove that the company was aware of the impact
its defective or unfair product had on consumers and that it knowingly
failed to warn or inform (tests are usually conducted on all products
before going to market). As always, some juror will naively think
that the manufacturer or company may not have realized what it
was doing or that the product was not deliberately designed to
cause
any harm. To avoid this problem, provide proof of the manufacturers'
prior knowledge and, if possible, show intent as well. Even without
proof that the companies or manufacturers were aware, they can
be liable for not warning or informing consumers. Jurors will need
to
be told that, whether a manufacturer or company was aware, it nevertheless
had a duty to warn.
It is often advisable to assess a cases' value
before deciding to try it. This can be done by conducting a focus
group or conducting
a community attitude survey. This will result in a better understanding
of the extent of the damages incurred and how typical jurors feel,
think and react to the issues associated with your case, enabling
you to strategically use such information to obtain a favorable
verdict.
In order to convince the jurors that someone is to blame for this
unfair practice and that all consumers are the true victims, a
plaintiffs' attorney must be accusatory when it is appropriate.
Companies and
manufacturers should be portrayed as the "bad guys." Most
important, you want the jurors to identify with the plaintiff.
Emphasize how each one of the jurors could easily be in the plaintiffs
position.
Nothing inspires people to demand action more than a threat to
their own rights and pocketbooks.
Return to Top
Return to Articles
|
Digg | 
Delicious
