EP 606- Presenting Your Punitive Damages Case Part One

Episode Notes

Transcript

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:

I’m John Simon.

Erich Vieth:

We’re going to continue our series on punitive damages. This one will be on presenting your punitive damages case at trial.

John Simon:

So to start with, to kind of put things, to frame things as we say, I’d like to start with this. This is something that I learned decades ago, and I think the sooner that you recognize this, if you’re trying cases, the better. And that is jurors don’t give money, they take it. Let me say that again. Jurors don’t give money. They take it. In my experience, and Erik and Tim, you guys can jump in here. One of the hardest things I think is to ask the jurors for compensation for your client.

Tim Cronin:

If I didn’t have to ask for money, I feel like I could win every case.

John Simon:

Right. Exactly. Exactly. And for a lot of reasons. I mean, they might not like your client. People can be jealous. There’s envy. They’re worried about driving up insurance rates.

Tim Cronin:

They’ve had their difficulties in life and they’re not going to get $10

John Simon:

Million. My back’s hurt worse than that, and I’m not getting any money. And my Aunt Jenny got in an accident and she didn’t sue anybody and this kind of stuff. I think it’s one of the most difficult things to do at trial. However, jurors in my experience tend to hesitate hardly any hesitation in punishing somebody. They’re willing to send somebody to take their liberty away, send them to prison. They’ll willingly send them to jail. Sometimes they’re involved in something to death. It just seems to me that as difficult as those decisions may be, it’s just as difficult a lot of times to get 12 strangers to award money to your client.

Tim Cronin:

Hence, the question that comes in every single voir dire, when you mention the concept of punitive damages, and if anybody would have a problem with it, inevitably every time, John, a hand goes up and asks you what.

John Simon:

Who’s getting the money? Right. Who’s getting the money? Right. So anyway, what does this mean for us trial lawyers, for plaintiff’s attorneys presenting their case, their client’s case? Jurors are reluctant to give money for … Plus, it’s things like pain and suffering and disability, disfigurement, loss of enjoyment of life, those kinds of things. But when you’re asking a jury to award an amount of money to punish and deter, that’s a whole different ballgame. And so what that means is when you’re presenting your case, whether you have a submissible punitive case or not, I think focusing on the defendant’s conduct and the reprehensibility of that conduct carries the day.

Erich Vieth:

Philosopher hat on just for a second. And I’m thinking of Daniel Koniman’s theory of prospect theory that we value risks twice as high as we value benefits when we’re making decisions. And if you’re giving somebody money, that doesn’t affect the juror. But if you got some maniac firm running out there causing risks to the world at large, that is something that might affect a juror. And I’m wondering if it has something to do with that.

Tim Cronin:

Yeah. I mean, I think you’re putting jurors in a position that they may not otherwise ever be in their life to such a large degree that they can actually make a change in providing widespread protection for other people, but also for themselves and their kids, right? Their family.

John Simon:

I was in a courtroom about 40 years ago, 38 years ago as a brand new lawyer. And I was at a defense firm and they were defending a mass tort was a docs, an exposure case. I think it involved 60 or 70 individual plaintiffs. The case had gone … I did nothing in the case at all. I was actually in the courtroom next door with a partner I was working for when the verdict came out in the other case. And believe me, I think it was the longest, it’s still maybe the longest running jury trial in the history of the United States. It was in trial for about three and a half years. The jury was out for six weeks. There were 60 something plaintiffs. I think one expert witness was on the stand for six months. And again, I had no involvement in the case at all.

I just happened to be a lowly associate at the firm that was defending the case.

Tim Cronin:

How do you find jurors for that?

John Simon:

Well, I heard that they actually scheduled vacations as a group, like vacations and holidays and birthdays and things. We were trying a case and the judge that we were in front of stopped our case so that we could go next door and be in the courtroom when the verdict came back. And I stood there and I knew very, very hardly anything about the case. And I sat there in the packed courtroom, stood there, standing room only, when the judge read the verdicts and it was this plaintiff $1, this plaintiff $1, this plaintiff $1, 60 something times a dollar each. And then they whacked him with like 10 or $15 million in punitives each? No, just total. But it was again, they pretty much, I guess, concluded that there were no injuries, but they were absolutely willing to punish the defendant for the conduct. And again, it’s an example of what we’re talking about now, and that is jurors are way more likely to punish, to award for punitive damages than they are compensatory, in my experience, in my opinion.

That’s why having a punitive damage claim or at least punitive conduct in your case is so powerful.

Tim Cronin:

And then it allows you to make arguments in a different way, which inevitably I think affect the amount in compensatory too, just by the nature of- Leads

John Simon:

Over. Absolutely. …

Tim Cronin:

The motivation you’re providing for why their job is important and what they can accomplish.

John Simon:

A punitive damage claim provides a powerful motivation to the jury.

Erich Vieth:

I was just wondering to compare a case where there’s no punitive claim to one that there is. In the punitive case, you can stir in, it’s almost like a moralistic, bad defendant. To what extent can you do that even subtly or not at all

John Simon:

In a negative case? I think the conduct’s essentially the same. The conduct is essentially the same. The conduct that you need to prove a negligence claim, whether it’s against a doctor or against a company that designed a product or somebody who’s driving a bus or a truck, that same conduct that shows negligence or the unreasonableness of the defendant’s conduct is the same evidence that supports a punitive damage claim.

Erich Vieth:

So you can’t say the word punish or deter, but you can make similar arguments about bad conduct.

Tim Cronin:

Yeah, it probably depends on the judge you’re in front of. But I mean, regardless of who your judge is and the appellate court you’re going to be in, you better not get too overt and send a message arguments.

John Simon:

You know what? And I don’t think you need to. You just need to just point out the conduct and it just- They’re

Tim Cronin:

Motivated

John Simon:

Already. If you have the same case, the identical case, somebody gets hit by a car and the same identical injury, just swap out who the defendants are. If you’ve got the CEO of an insurance company versus an 80-year-old woman driving to church, I’m here to tell you that the numbers on compensatory damages are going to be drastically different in those two cases, whether you have a punitive damage claim or not. And not only am I telling you that, every good defense lawyer I know knows the same thing.

Tim Cronin:

Another example of that is if you have the exact same crash, a truck driver who’s going 85 miles an hour on a 55 mile an hour highway and hits somebody, kills a couple, right? What that jury’s going to award in compensatory damages is massively different depending on whether that driver has absolutely no bad driving history that the company was aware of as opposed to whether they do. Even though you assume liability in both of them, exact same damages in both, if the company should have known better than to have him on the road, then they want to send a message that you better do your homework and not have someone like that on the road, which is punitive damages motivation.

Erich Vieth:

Right. They’ll give that extra instruction to say you may award punitive damages, which is kind of a ticket to do more work and think more and add more.

John Simon:

A lot of times the evidence is the same evidence, but when you get to that level where you’re allowed to submit on punitives, and a lot of times it’s conditional.You’re faced with a motion for directed verdict at the completion of your case where the judge will ultimately decide whether you in fact get to submit, but having that punitive claim in your case allows you to make overt arguments that we’re here because we don’t want this to happen again, right? We don’t want this to happen to somebody else. Your verdict will keep everybody safe. What we’re asking you to do here is help address a problem to fix a

Tim Cronin:

Problem. Empowering them to make change. It’s an opportunity to make a difference. But I think, Erich, to your earlier question, if you don’t have the punitive line with the punitive instruction to say punish and deter, there’s other ways you can do that. You can still say things like your job, and this is true, your job is to decide and proclaim here whether this is okay in this community or not, and everybody will know. And you can say that, which is the same kind of argument without being as overt about it.

John Simon:

We have a saying here at our firm, turn your case into a cause. And what I mean by that is every case, I mean, it has to be about more than just compensating your client. It just has to be. It needs to be about fixing a problem, a problem only the jury can solve. You need to engage the jury. You need to put them center stage, put them in the mix, give them some skin in the game, turn your case into a cause for the jury, a cause which is there for them to address or solve.

Tim Cronin:

Yeah. They’re not just a spectator, right?

John Simon:

Put yourself in their shoes, knowing that what you decide as a group will have an effect on industries or might change a design or provide better training for commercial truck drivers. Make them

Erich Vieth:

Invested.

John Simon:

Yeah. Make them invested.

Erich Vieth:

And also for a jury, the boat’s leaving. So if they don’t do it, then nothing’s going to happen. Whereas the legislature can say, “We’re going to set up a committee and talk about this for three years.” But they’re knowing it’s now or never that something’s got to happen.

Announcer:

Yeah.

John Simon:

What I’d like to do now is take us through the different stages of the trial and talk about how you address punitive damages in each stage of the trial. For instance, let’s start with voir dire. What I like to do in a case where I’m allowed to submit on punitives, or at least it’s under consideration by the court, you need to voir dire first and foremost on just the general importance of your case, to letting the jury know in the last case I tried, I mean, the way I phrased it was your verdict will have a significant impact in our community and communities across the country. And I said, no matter what it is, it’s going to have an effect. Whether it’s defense verdict or a plaintiff’s verdict, it is going to have an effect on the safety in our community and communities around the country.

Tim Cronin:

Is there anyone here who is uncomfortable having that kind of responsibility or being in that kind of position? Because you have to eventually tie it to a question,

John Simon:

Right? Sure, sure. And you ask them, are you comfortable with that degree of responsibility? Are you up to the task? The other thing too that I like to point out, and this is true, it’s absolutely true in our cases that I tell the jury flat out in the beginning, you’re going to hear evidence in this case that no jury in this country has seen anywhere in this country ever. For the first time, you’re going to see some evidence in this case for the first time that’s never been seen before by a jury. And what that does is it’s beginning the process of getting them invested in the case, that their job is more important than your job. Their job is more important than the judge’s job. The only reason we’re here is because of you, because of the jury, because of the job that you’re going to be asked to do at the end.

So the other thing I like to do too is, in addition to pointing out the importance of the case and more significantly, the importance of the jury’s role in the case, pointing that out to them from the very beginning in voir dire I think is very, very important. I also ask some questions directly on the concept of punitives because everybody’s heard the term probably, but a lot of people don’t exactly know the difference between punitives and compensatory damages. A lot of times here in Missouri we’ll have what attorneys conserve and I’ll pick an attorney and have them explain, ask them a few questions about it. But I talk about the purpose of punitive damages, that it’s to punish and deter not to compensate the plaintiff. And I’m going to tell you exactly how I ask this question. And the reason I’m saying that is I ask it a certain way and invariably, almost every time I get a hand raised up and the first question is, what is it, Tim?

Tim Cronin:

Who gets the money?

John Simon:

Who gets the money? And what I’ll say is, it’s to punish and deter. It is not to compensate my client. We

Tim Cronin:

Actually had that as a point on appeal in a med mal case where we got punitives back in 2016 and they objected saying you told the jury that the plaintiff doesn’t get the money, which is not what you said. Didn’t say that.

John Simon:

Right. I said it’s not to compensate the

Tim Cronin:

Plaintiff. And it went up on appeal and it was approved because of course that is a proper question.

John Simon:

Right. And it is. It’s the difference between compensatory damages and punitive damages. The main difference is it’s not to compensate.

Erich Vieth:

Have you ever had a jury push back and say, “But who gets it? “

John Simon:

Every time. Every time. And so what I do is- I just put my hands up and I look at the court and say, look right at the judge and say, “You’re not allowed to answer that. ” And meaning that if his honor or her honor wants to answer it, so be it. And it’s, “Nope, we’re not getting into that. ” And so the jurors might know that some portion goes … And again, the only point I’m making is it’s not to compensate my client and it just comes up.

Tim Cronin:

So in most cases and most states have where a portion goes to the state or some fund,

John Simon:

I think if it’s not settled, if it’s a final, final judgment, half goes to the state-

Tim Cronin:

Tort victim’s compensation fund. And the defendants don’t want the jury to know that. So they don’t want it answered either. They want the jury to believe the plaintiff gets it all. That’s a great point. Yeah, right. And they don’t want the jury to know half of it will go to the state, which they’re taxpayers, it’s them. So they don’t want it answered either, which is why they don’t-

John Simon:

And it’s a victim’s compensation fund also, which is a good cause. So the other thing that you don’t want to forget is addressing the legal standard. And if you haven’t been there with a voir diring on punitive damages, you sit down, the defense lawyer’s going to get up and it’s going to be all about- We didn’t on purpose. We didn’t do it on purpose. The doctor didn’t intend to do it and didn’t do it on purpose. And by the time you get done objecting or whatever to that, the jury’s got in their mind, well, okay, they didn’t do it on purpose. That’s already locked in. And so I really hammer that in our portion of the voir dire. I use the jury instruction. I believe Her Honor will instruct you that this is what’s required, conscious disregard for safety. This does not require intentional conduct.

Anybody have a concern with that or a problem? They didn’t need to do it on purpose. In most cases, we say we’re not saying that they did it on purpose. Some cases- Some yes. Some were going, “They did this on purpose. They designed it this way to save money.” And they’ve been doing this for 45 years and it was intentional. And the other thing you got to be careful with because a lot of times we get to voir dire on punitives because it may be in the case at the end, but we don’t know that going in, right? So what happens is you don’t want to talk about it and then all of a sudden at the end there’s a jury question comes back, well, can we award punitives? Where’s a punitive line? Mr. Simon was talking about punitives. And so what I do, and I think it’s the right thing to do is I explain that after the conclusion of the evidence, after the court hears everything, the court will decide whether or not to allow you to consider punitives based on how the court sees the evidence.

I think it does two things. It covers you in the event you don’t get to submit on punitives, but it also sort of in an indirect way gives the blessing of the court on-

Tim Cronin:

Which is why sometimes it draws an objection in our last trial. It

John Simon:

Does.

Tim Cronin:

But you’re allowed to fought to your own punitives. And I think you just have to give careful thought to how you ask it. At the conclusion of the evidence, when his honor or Her Honor gives the instructions, they may instruct you on the concept of punitive damages or you can … That’s a little softer than maybe your first try is the way you phrased it. They may allow you to consent, however.

John Simon:

They may submit. Just stick with the … I think the safe thing to do is at the conclusion of the evidence, the court may allow you to consider and that’s it. And you don’t need to get past that. And that’s the truth and it’s fair. And I think that’s a good way to say it. The other thing that I try to do in punitive damage cases is prepare the jury a little bit for the amount of what you’re asking for. You don’t want to get to the end of the case. And then when you suggest an amount, they fall out of their

Announcer:

Chairs or

John Simon:

Something. And so you don’t really know what that number’s going to be. I don’t really know what it is in most cases going in, you got to see how the evidence comes in and what the defense does. But what I like to do is say in cases like this, punitive damages can be anywhere from zero to maybe tens of millions of dollars or maybe even hundreds of millions of dollars, and then ask them if the law allows for it and the evidence supports it, could you consider that? Could you consider a verdict anywhere from zero all the way to whatever that amount is?

Tim Cronin:

Yeah. Or in various different versions of that. In cases, depending on the conduct and the evidence, juries sometimes find that appropriate amount of punitives can range from very little to billions of dollars. Is there anybody here who is uncomfortable with that possible range?

Erich Vieth:

What if a juror says, “I’m comfortable with millions, but not hundreds of millions or billions.”

Tim Cronin:

Then you try to get him off and you say, “So regardless of what the court’s instructions and the evidence is, even if the evidence supports it, you would never under any circumstances be comfortable awarding punitive damages over a certain amount.” And depending on your judge.

John Simon:

But if they say hundreds of millions, but not billions, we still might leave them on. Yeah,

Tim Cronin:

Right. If they say 500 grand, I mean, certainly there are circumstances where the evidence and the law requires to punish and deter a higher amount. If they have a preconceived notion, then they shouldn’t be on your jury.

John Simon:

So the other thing I wanted to mention is what do you do when voir dire without punitives, right? You can’t voir dire exactly the same way if the judge says, “No, you’re not going to submit on punitives.” But I think there is a way to address the whole issue of deterrence a little bit and a good, fair way to do it. What I do a lot of times is say some people bring cases not just for compensation, but to make sure the same thing doesn’t happen to somebody else, does anybody here think that’s an improper use of our judicial system, right?

Erich Vieth:

Have

John Simon:

You

Erich Vieth:

Drawn an objection on that?

John Simon:

Yeah, I have, a couple times, but it’s really a fair question. I mean, a lot of people do bring cases because they don’t want to give the defendant a free pass for the big time. You’re talking about the

Tim Cronin:

Motivation of your client.

John Simon:

Yes.

Tim Cronin:

Which the defendants argue they’re allowed to call into question, right? Because they get to cross-examine on the litigiousness of the plaintiff

Erich Vieth:

Or- The greediness of the plaintiff. Yeah. Oh,

Tim Cronin:

Did you call a lawyer right away after you … And now I think that’s inappropriate, but if they’re allowed to get into the motivations of our client filing a money, which they are always saying is greed, then we should be allowed to say, “Well, that’s not their only motivation.”

John Simon:

So in any event, again, those are some of the things, and you can get as creative as you need to and every case is different, but those are some of the basic things that I can think of when you have punitive damages in a case in voir dire.

Erich Vieth:

We’re not finished talking about punitive damages. We’ll be back with another episode where we’re going to talk about the trial itself, including opening statement. But for now, this has been another episode of The Jury is Out. I’m Erich Vieth.

Tim Cronin:

I’m Tim Cronin.

John Simon:

I’m John Simon. We’ll see you next time.

Announcer:

The jury is Out is brought to you by the Simon Law Firm. At the Simon Law Firm PC, we believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case, offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 314-241-2929. And if you enjoyed the podcast, feel free to share your thoughts with John, Tim, and Erich at [email protected] and subscribe today because the best lawyers never stop learning.

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