Defending Punitive Damages Cases and Preventing Runaway Awards: New Approaches Runaway punitive damages awards continue to demonstrate that traditional defense strategies can fail against increasingly sophisticated arguments from the plaintiffs' bar. Getting the claim dismissed on summary judgment or arguing that the plaintiff failed to prove the necessary level of culpability may be tools but often fail as stand-alone strategies. Radically different approaches are needed. Counsel must develop a comprehensive strategy, including affirmatively telling the defendant's story. Defendants are finding success in invoking FRE 407 and arguing that subsequent changes have made punitive damages unnecessary. This approach may be instrumental in a variety of tort cases, including trucking and motor carrier cases. Laurie Webb Daniel Partner Webb Daniel Friedlander Kathryn Lehman Partner King & Spalding CLE On-Demand Webinar July 18th, 2023| 1:00PM Eastern This Strafford production has been specially selected for HB audiences. [...]

Influencing the Jury Using and Objecting to Demonstrative Exhibits Developing a Visual Strategy for Trial, Recognizing Misleading or Inaccurate Exhibits, Proposed Amendments to FRE 611 Lawyers throw away an important opportunity to influence the jury if they do not offer their own demonstrative exhibits and object to misleading or inaccurate exhibits offered by their opponents. Jurors routinely create their own diagrams, charts, lists, etc. to visually organize and understand what they believe they heard and saw in the courtroom. Creating both an affirmative and defensive "visual strategy" for trial is as important as picking the theme for trial and requires planning and the proper foundation. Demonstrative exhibits are powerful tools that can be inaccurate or misleading--accidentally or intentionally. Too much, and the jury can be overwhelmed. The issue of misleading and inaccurate demonstrative exhibits and visual aids has fueled proposed amendments to Federal Rule of Evidence [...]

Price Premium Damages in Class Actions: Establishing Whether Losses Are Capable of Measurement on a Classwide Basis Understanding the Measure of Loss and How Economic Experts Attempt to Model Them on a Classwide Basis Consumer fraud, false advertising, and latent-defect product class action cases often seek to recover the difference between the market price actually paid and the true market price that reflects the impact of the unlawful, unfair, or fraudulent business practice: the “price premium.” In evaluating price premium damages, plaintiff and defense experts often disagree about how and to what extent economic models are supposed to--and do--take into account both the demand and supply side of market. Separating the effect of the relevant claims from the effects of numerous other confounding factors must be done in accordance with rigorous scientific standards. In determining whether to certify proposed consumer classes, courts often [...]

Combating Plaintiff Reptilian Tactics in Complex Litigation: Discovery, Voir Dire, Direct and Cross-Examination Plaintiff attorneys use "reptile theory" to get larger plaintiff verdicts by appealing to the primal region of jurors' brains focused on safety and self-preservation. "Reptile" tactics seek to subtly lead the jury to believe that the defendant put all of society in danger and that a plaintiff's verdict is the only way to keep the world safe for themselves and others. Its proponents credit reptile theory for $6 billion-plus in jury verdicts, including a single $50 million verdict in a wrongful death case. To be most effective, reptilian theory tactics are deployed during every phase of a case, including discovery, opening statement, direct- and cross-examination, and closing argument. Defense attorneys must spot when reptilian tactics are being used and develop strategies for nullifying them. Listen as our authoritative panel of litigators shares how to defend [...]

Combating Plaintiff Reptilian Tactics in Complex Litigation: Discovery, Voir Dire, Direct and Cross-Examination Plaintiff attorneys use "reptile theory" to get larger plaintiff verdicts by appealing to the primal region of jurors' brains focused on safety and self-preservation. "Reptile" tactics seek to subtly lead the jury to believe that the defendant put all of society in danger and that a plaintiff's verdict is the only way to keep the world safe for themselves and others. Its proponents credit reptile theory for $6 billion-plus in jury verdicts, including a single $50 million verdict in a wrongful death case. To be most effective, reptilian theory tactics are deployed during every phase of a case, including discovery, opening statement, direct- and cross-examination, and closing argument. Defense attorneys must spot when reptilian tactics are being used and develop strategies for nullifying them. Listen as our authoritative panel of litigators shares how to defend [...]

Product Liability Claims Against Overseas Manufacturers and Suppliers Lacking Presence or Assets in the U.S. How Businesses Outsourcing Production Protect Themselves. What Injured Plaintiffs Can Do to Recover. Many products sold by U.S. businesses are made thousands of miles away by a company that has no presence or assets within the United States. If that finished product or a component in that product causes personal injury or property damage due to a defect or failure to warn, both the injured party and the U.S. seller may wish to recover damages from the overseas producer either directly or by way of indemnification. Before contracting with overseas producers, and in particular those in China, businesses must carefully negotiate and meticulously document their arrangements. U.S. plaintiffs--whether businesses or individuals--seeking redress from manufacturing defendants that have no, or intentionally superficial, presence within the U.S. must first identify recoverable assets before they [...]