John G. Simon’s work as Managing Partner at the firm has resulted in hundreds of millions of...
For more than thirty years, Erich Vieth has worked as a trial and appellate attorney in St....
Tim Cronin is a skilled and experienced personal injury trial attorney, including product liability, medical malpractice, premises...
Published: | February 5, 2025 |
Podcast: | The Jury is Out |
Category: | Litigation |
We believe punitive damages exist in almost every case. In the first episode of our series, we begin by exploring 3 fundamental truths about punitive damages.
Special thanks to our sponsor Simon Law Firm.
Announcer:
Welcome to The Jury is Out a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm, Tim Cronin, personal injury trial attorney at the Simon Law Firm and St. Louis attorney Erich Vieth
Erich Vieth:
Welcome to another episode of The Jury Is Out. I’m Erich Vieth.
Tim Cronin:
I’m Tim Cronin.
John Simon:
And I’m John Simon.
Erich Vieth:
We’re here to talk about building your punitive damages cases, and this is the first of a series of podcasts. We’re going to talk generally about how to build a punitive damage case today, and that’s going to lead to future podcasts where we’re going to illustrate that the Simon Law Firm has achieved three significant punitive damages cases over the last 12 months, and those will again serve as good illustration of how to build your case. So John, I believe you’re going to start us off
John Simon:
And just generally what we’re going to start out with is some things to think about in any case in terms of do you have a punitive case and how to build it, how to develop discovery to help you build that case. And also we can get into some detail in terms of how to present a punitive damage case at trial. And as you mentioned, we were fortunate enough to have three verdicts in a 12 month period, each of which had a significant component of punitive damages. As a young lawyer, I was more worried about the actual, what are the facts, what are the facts? You take the facts on this side, the facts on that side, like with the scale and you weigh ’em, and that’s how you win your case. If you have more facts than the other side on this issue, you win.
Over the years, I’ve learned that that’s sort of correct. But the most important thing is what we’ve talked about on prior podcasts, and that is how jurors make decisions. And jurors certainly consider the facts. I mean, you need to present the facts in order to make a dismissible case. But the bottom line as far as I’m concerned is, and I’ve said this many times before, if you’ve listened to the podcast, jurors make decisions based on emotion primarily that goes for the defense side, for the plaintiff side. And guess what? That’s not just jurors, that’s everybody. That’s doctors, lawyers, people buying paper towels at the store. Think about when you bought your first house, when you rented your first apartment, who your significant other is who you chose to spend the rest of your life with, get married. All of those things are overwhelmingly, in my view, decided by emotion. So you get a case in the office, what are the first thing you say? Oh wow, that fact isn’t very good for us. And it might not even be relevant to the negligent conduct. It might be some conduct before or after that your client engaged in.
Tim Cronin:
Nobody’s going to like that.
John Simon:
Yeah, exactly. Nobody’s going to like that. And the question is, here are the facts. Are they going to like my client,
Right? Is there anything we can find that will make them hate the other side more? And you know what? That goes both ways. I’ve had cases both ways, most cases, most cases that we have. I think that the defense, the other side, rightfully so, they spend most of their time attacking your client, not your case, especially if the damages are very significant if the liability is a lock. So right from the beginning when we’re evaluating cases, my first question is, who’s my client? What do we know about the client, the background, all of those kinds of things. And it’s what we spend most of our time on. The stuff you learn in law school is what are the issues, effects, support the issues, identify them, these are the elements, let’s identify. And then you spend the next 30 years or 10 years or whatever, learning that’s not what people put up cases, honing your skills to focus on what emotional effect those facts will have on a jury.
Tim Cronin:
So I mean, what I learned early on in working with you since the beginning of my career, John trial out back in law school is case comes in the office. And very early I would think of it in terms of, okay, what kinds of claims can we bring and what do I think there’s going to be evidence to support those claims? And then what are my chances of winning? And then independent of that, what’s the case worth? What are the injuries? And as time has gone on, I have figured out what drives the value of the case much more than the facts of what the injuries are is how pissed off the people of the jury are
John Simon:
Going to be. Yeah, let’s give a concrete example to everybody. And that is, I’m sitting in my office, and this has happened many times before. Tim comes in and says, here’s the case we have, there was a truck going 45 miles an hour. Our client was stopped in traffic, the truck ran back into the back of our client’s vehicle, our client had a broken leg, and this was hospitalized for six weeks. And I hear all the facts about liability, the facts about damages, the medical, the prognosis, and I’ll be asked, what do you think that case is worth? Where the venue is, who the judge is, who the other attorney is? And my first question before I even begin to think about the value of that case, I say, tell me about the defendant. Who’s the defendant? What do we know about this driver? How was this driver trained?
How long was he on the job? Did the driver have any prior accidents? And those things, you could say, well, this is an open and shut case. It’s a rear ender. I also ask, who’s our client? Do you like our client? Does our client make a good impression? And it’s the same analysis that the others, believe me, it’s the same analysis the other side’s going on. I did defense work for the first five years of my career and we would draft authority letters and I’m sure haven’t changed, still going on. And we had an entire page of who’s the client, what do we know about the client, where did they grow up? Are they going to make a good impression? I’ve had attorneys take a 15, 10 minute deposition and they want to take a video all the time of our client’s depots. And really it’s more than anything, they know the facts of the case.
They know the medical and the injuries better than our client, but they want to eyeball our client and see what kind of impression or presentation they’re going to make. Are they going to be sympathetic? Somebody will want to help or the opposite. And so let’s extend that example. You’ve got the same rear-ender case I just described. Let’s say two vehicles. Somebody runs a red light and T-bones another car, and we’re trying to figure out what that case is worth. Well, same identical injuries. If that was a elderly, say, a 75-year-old widow heading to church and going the same speed T-boned your client and cause the exact same injuries versus the CEO of a company. Just that fact, just that change in facts that’s significantly in my opinion, affects the value of the case. And it shouldn’t. Nothing in the jury instructions that would indicate that, but we know from experience that it does.
It happens all the time. Talking to jurors is often frustrating and terrifying. They decide cases. I’ve done hundreds of focus groups, like hundreds of focus groups, and when I remember one of the first few when it became the thing to do focus groups, we would do live focus groups. And I remember we were able to watch the jury deliberate without them. They signed knowing we were going to be watching ’em and videotaping them, but we would actually watch ’em live by video and see them deliberating. And I would tear up my outlines and say, why in the hell did I go to law school? They’re deciding this case on stuff that, not the facts, not the relevant facts. And they’ll head down a path and they’ll start talking about, well, this kid was 19 years old and why was he had a sports car and all this kind of stuff.
Tim Cronin:
You had a case with getting hit at a railroad crossing and there was zero evidence that he drove around the thing. And didn’t your focus group say he was 19 years old? I think he drove around. Yeah, exactly. Ate it up.
John Simon:
We had a 19-year-old young man driving a red sports car and he was stopped in the middle of the day at a railroad crossing. And we had an eyewitness who was independent. He was an electrician in his van right behind our car, and it was a crossing with an arm on it and the arm was up, there were no lights, and my client was the passenger in that car. The car drove onto the crossing and got hit by an Amtrak train going 45, 50 miles an hour, and it was open and shot. I mean, they even had to come and repair. They found something wrong with the arm and this focus group. And you
Tim Cronin:
Kind of took that for granted. I
John Simon:
Took it for granted. I’m just talking about damages and I’m listening to the focus group. And for the first 45 minutes, all they talked about was the fact that this is a young man and he’s 19 years old in his sports car and he
Tim Cronin:
Probably drove around the
John Simon:
Arms. Exactly. And I think one of the women in the focus group said, I’ve seen that so many times where these young kids, they drive around those gates they drive, there was no evidence of that. It was probably going to be an admitted liability case. And believe it or not, after an hour and a half or two hours of deliberations they found against my client, they dumped you. They dumped me in the focus group.
Tim Cronin:
And then you did a second one, right? And the one thing you did is you said everybody agrees that the arm was up. There is no evidence to support that he did. And it just completely flipped the
John Simon:
Result. Well, part of it was I gave more information about who this driver was.
Tim Cronin:
Oh,
John Simon:
And he was a very fine young man. He was working full time, going to college at night, living with his mom, helping his mom doing the grocery shopping, had two jobs. And when they heard all of that, they didn’t even spend five minutes on the liability. So again, it’s an
Tim Cronin:
Example of bad or good. So you have three fundamental truths written down here that we’re going to go through. The first one is bad conduct drives damages. I think we can amend that to bad or good conduct drives damages,
John Simon:
Bad or good conduct drives damages. And for those on the defense side, listening to our podcast, first of all, thank you very much.
And secondly, it’s the same thing. It cuts both ways. You don’t really, it doesn’t even extend. It extends beyond what happened in the incident or at the scene. If your client does something later that’s bad, it can affect the damages in the case. If your client has done some things here, why do we keep out the fact of a felony conviction, right? Why do we fight so hard? Does that have anything to do with most cases has actually legal relevant legally? It has nothing to do with it has nothing to do with anything legally and logically, it doesn’t really have anything to do with it, but we know it has everything to do with it,
Tim Cronin:
Okay?
John Simon:
Right. It has everything to
Tim Cronin:
Do with it. On the opposite side, let’s say in two hypotheticals, you have a hated pharmaceutical company as opposed to a beloved local hospital, right? Once you get to damages, if the injuries are the same, those results should be the same. Do either of you think they would be Absolutely not. They would not be. Absolutely not. The jury is going to return a much bigger number for the same injuries against an evil pharmaceutical company they may hate, then they will against a hospital or a doctor
John Simon:
That they may like. It pertains to liability also. So again, Tim, we talked about the fundamental truths in building a punitive damage case. The things you have to keep in the forefront, keep in your mind as you’re doing case selection. As you’re doing discovery, you’re sending out written discovery, taken a deposition. Number one, as you said, bad conduct bad or good conduct drives damages. I think number two, punitive conduct exists in every case. And what do we mean by that? And the third one, jurors don’t give money, they take it. But let’s talk about the second one. Punitive conduct exists in every case. Well, what that means is jurors don’t really make that distinction. Whether conduct, when they’re asked, when you have a punitive damage case, I doubt very much I’ve seen it in focus group deliberations, whether they sit around and say, okay, now wait a minute, that’s punitive damage. Let’s talk about compensatory. They take all the facts, take all of that into consideration and say, okay, here’s what happened. What should they pay? What
Tim Cronin:
Should we do?
John Simon:
Yeah, what should we do? What should they pay? And so there’s a punitive element, and by that I mean conduct, right? Conduct drives damages, which
Tim Cronin:
Bleeds into your third fundamental
John Simon:
Truth. And you may have a subvisible punitive case on the law, but most of the time you don’t. Maybe you don’t, but there’s still punitive conduct. And that punitive conduct has the same effect, whether you call it punitive damages or not. And then finally, the third one is something that I learned years ago from an attorney who when I first started practicing, there was another firm on the same floor as we were. And this attorney came down the hallway, we just moved into our new office, and I would talk to him all the time. He was about 30 years older than me. He’s long since retired. And he told me something that I never forgot. And that is jurors don’t give money, they take it, they don’t give money, they take it. And I’ve seen that firsthand over my career. I had a case once where it was a punitive damage claim.
It was in the city of St. Louis, and I had an alternate juror who was not good, and I didn’t strike him for whatever reason. Maybe I had somebody that was worse. But he ended up on as an alternate, and he remained an alternate, thankfully didn’t get on the panel. And as soon as the jury went back to deliberate, he came right to me, be lying to me and said, Hey, Mr. Simon, I’m sure, I’m sure I wasn’t going with your client. And I was like, yeah, yeah, right. And he said, I really figured it out while you
Tim Cronin:
Were glaring
John Simon:
At me. He said, I wouldn’t have given them a dime, not a dime, but I would be willing to punish that company and award a significant amount of damages. And so again, and think about the criminal stuff, Eric, people are, they don’t hesitate to put people in prison, take away their liberty, even in death cases sometime to consider that. So I think there are a lot of reasons from a psychological emotional standpoint that people don’t like giving big awards of money to somebody else.
Erich Vieth:
I can see initial problem here or a challenge anyway, when we’re talking about emotion being the foundation for much maybe all human decision making, the stuff we learned in law school can be written down. You can make little boxes for the elements of the tort and you can fill those boxes with the evidence that’s going to prove or disprove it. But when it comes to emotion, how do you analyze that? It seems like it immediately goes into this other realm where words don’t work so well. And for instance, also you mentioned when a case first comes in the door, you have a strong feeling, perhaps one way or the other, and then it seems to fade. You get used to the facts. How do you maybe a trial, you try to go back to that first day when the
John Simon:
Case came in your you hit it right on the head. When I start preparing for trial, I’d get the file out. And the first thing I do, I go back to the notes when I first met the client and first heard about the case. And I try to find out what compelled you on that case in the beginning, what compelled you to take this case? And you know what? At the end of the day, that’s the same thing that it is at trial. You look at, and this is not a law school issue, this is not a legal issue. What’s your gut feeling? What facts did you hear that you went, man, that’s not so good. It’s also determined by my level of disgust by
Tim Cronin:
With what happened,
John Simon:
Right? Exactly right. You can see a case where somebody crossed the center line and somebody driving a commercial vehicle across the center line and they’re on meth or Coke or something. I’ve had a few cases like that over the years, and maybe that’s a one-off and it’s happened one time. But one of the cases that we handled was the hospital case rape case of a young woman in a hospital. And that conduct, I mean the more we dug, it was inexcusable, more and more disturbing. Shocking. It was disturbing. It was disturbing.
Tim Cronin:
Shocking. Some of it in the beginning we didn’t believe was true. The witness must have misspoken. That’s how
John Simon:
Bad it was. So I think you need to keep this in mind in every case what your client, why does it matter what your client is wearing at trial? Why do your client’s facial expressions that happened during trial matter? At trial? Why are we concerned about that? It’s because the jury’s not just looking at the jury box, they’re looking at everything in that Courtroom. They’re seeing how you handle yourself in trial. They’re judging your credibility. All of these things drive damages and they drive punitive damages. And so you need to keep these things in the forefront in every case, whether you have punitives or not from a technical legal standpoint, they’re there. It affects the amount of damages. It affects decision on liability. Bad conduct drives damages. Punitive conduct exists in every case, and jurors don’t give money. They take it.
Tim Cronin:
And for those reasons, you want to be thinking about how to build your punitive damage case from the beginning all the way up to how you presented at trial. And then we have examples we can talk about.
John Simon:
So another example too about whether punitive damages are in every case or not. I’ll give you another perfect example. Many years ago I tried a case involving a boxer who was injured in the ring, had a subdural hematoma, there was no ambulance on site. And anyway, I won’t get into the details, but I got to voir dire on punitive damages. And so the jury understood punitive damages. They understood why it was to punish and deter, and I disagreed with the decision, but at the end of the day, we didn’t get to submit on punitive damages. The judge said There’s not enough to submit on punitive damages. And I made that clear in the voir dire that the end of the case, the judge will decide whether or not you get to consider that here’s what they are, here’s what they’re for. Anybody got any problem with that? And we didn’t get to submit. Jury was out for quite a while, maybe like five or six hours.
Tim Cronin:
And I assume that not only wasn’t there an instruction, but the other side couldn’t mention that they weren’t there. And the judge decided they weren’t there. So nobody could talk about it. Nobody could talk
John Simon:
About it. It’s silence about the punitive damages. Yeah. Well, sure enough, a note comes back. And a matter of fact, we’re close to, we have two blocks from the courthouse. And I walked back to my office and got the call. One of the other attorneys who tried the case with me calls me and said, they got a question. I said, yeah, what is it? And he said, they want to know if they can award punitive damage damages. And I thought, well, that’s a good sign. That’s a good thing. Bad question. That’s not a bad question. And so I hightailed it back to the courthouse and the judge, I think you should reconsider your prior judge. I mean, at least there’s 12 people in that room that think that there’s enough evidence to at least reasonable minds can differ. But anyway, so what happened was we gave them the same instruction, telling them basically nothing, you must be guided, instruc must be guided by whatever instruc in the evidence. And so about 45 minutes later, we came back with the verdict and it was for us, and it was a significant amount of money for the compensatory. And then they actually wrote in on the verdict form, and in addition, we award and I think it was like 40 million in punitive damages. And so again, they got to hear about it a little bit, but there wasn’t a form for it. But the conduct certainly was enough that there were punitive, they’re thinking punitive damages and technically they weren’t in the case.
Tim Cronin:
Yeah. I forget what happened, John. Did they send them back to refill out the form and cross that out? Or did the judge just strike that out? Because if you send them back and tell ’em they have to strike it out, they might just put the 40 in the
John Simon:
Compensatory Interesting bet. What you wanted. Exactly. So what happened is we’re at the SideBar and I’m happy about everything. And so we’re at the SideBar and the judge says, well, what do you want to do? And I said, well judge, obviously if we didn’t get to submit on punitive damages, they wrote it in, maybe we should tell ’em, go back and do it again. You’re not allowed to award punitives, go back and redo the whole thing. And the defense attorney was didn’t want to do that. And so we ended up just taking that verdict. And of course we had the issue on appeal, but we didn’t get to hold onto the punitive award
Tim Cronin:
To kind of put a capstone on that. There are cases where from the beginning, based on the type of case it is, you have a slim to 0% chance that you will get a punitive damages instruction. And the point is that doesn’t mean you be trying to build a punitive damage type case and argument based on the conduct because baked into what the jury’s going to do on your claim.
John Simon:
Not only that, I’d go one step further and say, even if you don’t think you have a punitive damage case from a legal standpoint, if you’re not trying to focus on bad conduct, you’re going to lose the case. Okay? You will lose the case. A lot of jurisdictions, you almost need to show intentional conduct to get a verdict, especially in types of cases, medical malpractice cases, cases against doctors.
Tim Cronin:
So in Illinois, you can’t get punitive damages in a med mal case, for example. And yet when we have those cases, we are trying to prove that the conduct was the same as the standard for punitives anyway, just to try to win the case and build the value.
John Simon:
Yeah, I mean basically you’re trying to put the best case on that you can in terms of the defendant’s conduct being negligent. Well, somebody can do something on purpose and it certainly fills the bill for negligence and then some. But again, you really need to focus on the conduct and not just focus on the conduct of the defendant. You got to be looking at your client’s conduct. You got to be making sure that you know everything there is to know that’s out there, the whole social media thing and all of that stuff. So how do you get started? How do you find that conduct in your case? Well, I think first of all, as we’ve been talking about, you focus on the defendant’s conduct. And I would look at it this way. Here’s how I would think about the approach to discovery. In any case, from a logical standpoint, you know what happened, generally you got a pretty good idea about what happened, but that’s not the end. Even if liability is admitted, the real focus of your discovery needs to be not exactly, not just what happened, but why.
Tim Cronin:
I mean, when it comes down to whatever jurisdiction you’re in, the punitive instruction may read a little bit differently, but I think it always pretty much boils down to, and like you said, whether you have punitives or not, you are looking for the defendant’s knowledge and disregard of the likelihood of injury from their conduct that they knew someone could get hurt and disregarded it. And usually the reason you want to find for that is
John Simon:
Money. And here’s the other thing, what is negligence? It’s reasonableness, right? Negligence essentially is the reasonableness of a party’s conduct. If somebody omitted a safety device because they wanted to make more money, they did that intentionally. But it also reflects significantly on whether that conduct is reasonable or not. So there’s no separation. The same thing, follow the money.
Tim Cronin:
You’re almost always looking for a profit motive. And if there was a disregard for safety, it almost always is because of a profit
John Simon:
Motive. Another thing that I like to look at that we look at in depth, no matter what it is, whether it’s a driver running a light, it’s an accident where something fell off a truck, it’s a product that doesn’t have a guard on it or wasn’t designed properly. A medication, a drug, a mass tort, whatever, search for similar, other similar instances. How often is it the first time it’s happened? Has it happened before? How many times,
Tim Cronin:
Right? That’s usually the main way. But one of many ways, right? That you’re trying to prove knowledge that something bad could happen, knowledge that an injury could happen. And the fact that it has happened before and the more times it’s happened before is the best way to do it. But there’s other ways to do that too, on top of just prior incidents. I mean, I agree with you in every case, the first thing you’re trying to look at to prove they knew something bad could happen from this is it has happened a bunch of
John Simon:
Times. Some things you shouldn’t overlook. You should look at this in every situation. For instance, if you have a commercial driver, if you have a product, were there any regulations, federal regulations, state regulations, were they followed? Were they violated? That’ll get you
Tim Cronin:
Punitive. I think it’s because it also proves knowledge. Those exist for a reason. The reason they exist is for safety. Because if you do not follow them, people get hurt.
John Simon:
I put that in every set of our written discovery. I included in every corporate rep deposition notice, are there any regulations that relate to the testing, design, sale of the product, rules of the road, right? Rules of the road. It’s basic rules of the road. If there are regulations and they followed ’em, okay, there could be no regulations or there could be regulations. And the chances are they followed the federal regulations or they wouldn’t have the car or whatever product is out on the market, they usually wrote them. Well, that’s another whole story, the lobby influence, right? But let’s say you don’t find any of that, right? Well, the next step that I always look at in discovery, and it’s a whole source category of discovery, is do you have any of your own policies and procedures relating to anything driver training in a truck with a truck accident or a commercial vehicle? Well, medical malpractice cases. Are there any policies and procedures about checking the patient, checking blood pressure, following up, whatever it is. And that’s always has come up with some really good stuff. Because here’s the thing, if they don’t have any,
Tim Cronin:
That’s not so cool. Yeah. So see if there’s some kind of rules imposed upon them by a legislative body or the government, if not that go to, did you create any rules that you weren’t following? And if not that go, oh my God, you didn’t create any safety rules.
John Simon:
And then the other thing too is we talk about profit motive. Some cases come borderline close to just out and out fraud. You might have a case where a doctor or somebody did a procedure that really wasn’t necessary, or it’s some type of procedure or product where the physician who implanted the medical device has a close cozy relationship with the manufacturer, things like that. And those are kind of the things that we look at. So when you start out with your case to kind of summarize finding the punitive conduct in your case, number one, focus on the defendant’s conduct. Two, not just why don’t focus just on what happened, but why three, look for a profit motive four, search for other similar instances. I’ll find out if there were any violations of regulations, state regulations, municipal regulations, federal regulations. You could have a building issue, a balcony, a set of stairs. Were there any municipal codes that were in play that should have been followed? Does the defendant have any policies or procedures of their own? And if they don’t, why not? Was it ever thought of, I mean, did you ever discuss it? Did you ever think about it or consider it? It’s
Erich Vieth:
Like a double-edged sword from a defendant’s perspective. It’s good that a company’s tracking similar instances, and it’s good that there’s regulations out there. It shows that people have put thought into this area or that they have their own policies and procedures. These are good things, but then you have to follow through, and that’s where the punitive comes in. Absolutely. But you can imagine some cases where something happens and no one’s ever, it’s like, how the hell did that happen? No one ever saw that coming.
John Simon:
A great example, and I won’t mention names. I had a case against a pharmacy chain that I won’t mention which one, but everybody’s heard of it before. What happened was they gave the wrong medication and it was a really bad deal. I mean, it was bad news. And so we did discovery directed to the facility and who was there and the training and all of this. And then I got interested in, well, like you just said, Eric, do you guys keep, they had like 1400 stores or 2,500 or whatever. And I’m like, you guys are giving out medication for people. Do you keep track of this when you gave the wrong one? And their answer was, and I’m not certain to this day whether it was accurate or true or whatever, and I won’t comment on that, but it was, no, we don’t. We leave it to the individual store. And I said, but it’s your store. And that became, as you can see, I mean looking at you guys’ faces, I don’t believe people are like, well, they either don’t believe it or they’re like, are you kidding me? The value of the case just went up,
Tim Cronin:
Right? So I was going to add a bullet point to this, finding the punitive conduct in your case, and you just hit on it, find a lie. And if you find a lie, try the lie. You find somebody lying about something or people believe they’re lying about something. And that’s the kind of thing that really anchors people.
John Simon:
I had a railroad case crossing case, same thing where it was an arm that wasn’t working and it was reported to the railroad like 2, 3, 4 times. And they didn’t do anything about it. They didn’t check it. And I was thinking to myself, I was getting ready to take the corporate rep of the deposition of railroad. And I thought, well, I got to have policies and procedures on this. Well, they did. They had ’em. And guess what? They only do an examination. And this was a couple, maybe 20, 25 years ago. If it has to be a, I dunno how they described it, but it had to be a credible, a credible, it had to be it. Credible report of malfunction. Does that mean the
Tim Cronin:
Train hit somebody?
John Simon:
Well, yes. What? But here’s the thing. It was reported like four or five times prior that this arm wasn’t working.
So people were going, holy shit, the arms up and the train flew by. And I was sitting there and they called the railroad. And literally this guy literally said under oath, and I kept a copy of his depo transcript for years. I couldn’t believe it. I kept it on a shelf in my office. He said that. And the case was in the city of St. Louis. And he said, by definition, by our definition, a credible report of malfunction is only one made by a police officer or an employee of the railroad. And so we were going to try the case in the city of St. Louis. And I immediately said, well, so if there was an entire bus of citizens from the city of St. Louis
Tim Cronin:
Stopped,
John Simon:
And they all witnessed it together, you would deem all of their reports to be not credible. And he actually said, yes, sir, we would ignore it and wouldn’t do anything to look at it. It would’ve been funnier if you said full of 12 citizens. Yeah, right. Yeah, I wasn’t thinking about that. So basically, the citizens of our community, which is the reason the arm is there, right? You don’t listen to them at all. Their credibility is they have zero credibility when they report this. It’s only when a police officer or an employee of the railroad sees it that you’re going to be safe.
Erich Vieth:
We’re going to pause our episodes at this point, but there will be more episodes on building your punitive damages cases. This has been another episode of The Jury is Out. I’m Eric, be and Tim Kerman. I’m John Simon. See you next time.
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The Jury is Out |
Hosted by John Simon, Erich Vieth, and Timothy Cronin, 'The Jury is Out' offers insight and mentorship to trial attorneys who want to better serve their clients and improve their practice with an additional focus on client relations, trial skills, and firm management.