EP 625- Working Up A Big Win Part 2

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.

Tim Cronin:

Welcome back. This is another episode of The Jury is Out. I’m Tim Cronin. We’re back here with Kevin Carney and Pat McPhail attorneys at our office to talk about their case, which was Gleason Asphalt V what it was. It’s Lafarge Cory, right? Lafarge North America. Lafarge North America. So last time guys, we talked about just the case in general and the workup of the case hinted a little bit about the trial. So I want to ask you about how the trial went. Obviously every case starts with jury selection and kind of like who did what, who picked the jury. And Kevin, did you do jury selection?

Kevin Carney:

I did not.

Tim Cronin:

Pat, you did. So it’s not a personal injury case, it’s a commercial case. Are there different kinds of approaches and questions you asked to try to figure out who might be right for the jury than we do and like a med mal case, what was your approach?

Pat McPhail:

Absolutely different and the difference just because we didn’t have anybody that we were really afraid of being on the jury. And what I mean by that is that you go into a case real easy for medical malpractice, right? You find people that just hate medical malpractice cases. That’s something that everybody kind of has some sort of opinion about coming in to jury duty here though we have a little guy, a client versus the big Goliath. We’re not worried about that aspect of it. I mean, if anything, my goal there was to try to insulate the jury from people that would ordinarily be on our side and getting kicked off whenever defense comes up trying to protect them. So whenever we got the list of people, we saw a few lawyers on there. We had an interesting person that was in charge of a very frequent flyer defendant that we sue from our law firm.

And that person really tried to stay on the jury but was unsuccessful, but it was a real laid back jury selection. Just trying to get to know the people that are at the front of the line was really important just so we can get an idea that, okay, there’s nobody in here that’s going to be really bad for any particular reason that you couldn’t predict. And so then it’s just getting to know ’em, getting to know what kind of people that there are, if they’re going to be a leader, if they’re not going to be a leader. Those are things that are generic for just every single one of ’em that I do.

Tim Cronin:

Were you looking forward to get any small business owners on your, I imagine that would be your ideal juror.

Pat McPhail:

So not necessarily always because there are a lot of small business owners that have been sued and only been on one side

Of the coin. So you got to figure out individually how people feel about it. But even whenever we dug in on those people, people that own a business of any size or that they run a business because that’s just as important because people that are executives a lot of times take ownership of the company more personally. There just wasn’t anybody that turned out to be a scary juror. So it was a very delightful jury selection for me. I had a good time just getting to know the people and sometimes I like to, what me and Kevin have settled in on is this process where I’ll do the jury selection, he’ll do opening statement right afterwards and I think it works really good for us to start off the case, but I’m always thinking about towards the end and closing argument, reconnecting with the jurors that you found in jury selection and finding some sort of way to keep it interesting for ’em and keep ’em engaged and know that you are thinking about them.

Tim Cronin:

You’re trying to establish a rapport with them early so that you can have a connection with ’em still later.

Pat McPhail:

Right. And so we had plenty of time to do that. We weren’t rushed. That’s always great whenever you’ve got a judge that’s letting you try your case and spend as much time as you need. But it was kind of an uneventful for the most part jury. It

Tim Cronin:

Doesn’t sound like there were a lot of cause strikes. It

Pat McPhail:

Was not.

Tim Cronin:

Yeah. It’s not like when we try a med mal case and half the jurors are like, I do not like med mal cases.

Kevin Carney:

Not happening. Really nothing like that at all, which was the benefit of this case. I mean I think some people are suspect of personal injury cases obviously, and we face that barrier in personal injury cases. But in this one I think people expect businesses to sue other businesses. I think it’s a matter of business for them and they understand that. And I also think with the subject matter of this one, I think a lot of people out there have experience on their own of receiving a product or buying a product and it isn’t what they thought it was or what it was represented to be and what are you supposed to do when that happens? And so I think, like Pat said, we weren’t that scared going into jury selection. There weren’t many people that jumped out as being people. We needed to find a way to get them off.

Tim Cronin:

So then what was your kind of theme throughout the, we always try to come back to this case is really about this one sentence just like giant company lies to and tries to crush small company. Did you do opening Kevin?

Kevin Carney:

I did.

Tim Cronin:

So what was your basic, and so other than saying

Kevin Carney:

What happened, I always like to tell a story and be engaging and start just by telling us the story of what happened. And I think in this one, I framed it in the David v Goliath way and framing it as this big company was making a decision to make more money by taking advantage of small businesses and people around this area. I think setting that up and explaining the dynamic, the difference between the two companies in this case and always, always hinting towards the David and Goliath aspect of it and framing it as like, Hey, we’re here because my client, the little guy got screwed. But also because my client, the little guy has the strength and the fortitude to actually take it this far. And usually people don’t do that. Usually people don’t have the fortitude, the strength, the resources when they’re this small to go this far to come into the Courtroom. And that really helped the framing on punitives because

Tim Cronin:

You’re framing them as a hero.

Kevin Carney:

Yeah, framing ’em as Right, right. Framing ’em as a hero, framing ’em as someone that’s been through a ton. And it was true. I mean it wasn’t like we were making any of this up. I mean this was incredibly problematic for my client, a small family business to go without cashflow for a period of time to have their entire reputation, their name damaged like this. And it was just getting those elements across and showing the disparity between this just not mattering at all to a company this big Lafarge. But then on the other hand, the devastating impact that it had on our client and framing that up was the goal of open, but also really the goal in open. It was a situation where I laid out all the evidence. There’s that much of it. There wasn’t that much. I mean I laid out all the testing, I laid out what happened and yeah, that’s it. So you did a good

Pat McPhail:

Job of, you did a good job of setting the tone that this was not just an isolated incident at one quarry of this company. So that was important to our case because of how big Lafarge is, they have quarries everywhere and this was just one quarry that was at issue. We really had to make it about the company itself. And so Kevin started this off with starting with the CEO, a picture of them in opening, I mean to start this as a top down problem.

Tim Cronin:

They’re doing this everywhere and they think it’s okay to do it everywhere. They’re not going to stop. He did

Pat McPhail:

Job of framing this, right? He did a good job of framing this and not just a David versus Goliath, but David was the Goliath from the top.

Kevin Carney:

That was the problem. The way I did that was through telling a story and the story was of executives in a big conference room at a big company and a big building who are starting to get reports that the rock in their quarry is unusable and they have a decision to make. It’s either stop selling it or lie. Well, I didn’t say lie, but keep doing what we’re doing and keep the status quo and basically, hey, we’re here because they chose option B. Yeah,

Tim Cronin:

Like an actuarial analysis. Who’s going to be able to afford to fight

Kevin Carney:

Us? Exactly. Framing it as which I believe it was a conscious decision to continue to do this because of the power imbalance and starting immediately to get to the jury, this idea that they did that and they would continue to do that until someone balances that out and makes it not worth their while.

Tim Cronin:

Yeah. Change the balance sheet.

Pat McPhail:

One thing that we never did, we never used the word lie. We never used the word fraud at all until closing and even in closing, well, it’s

Tim Cronin:

In the jury instructions.

Kevin Carney:

I did use the word lie and close, but it was in a way I didn’t call ’em a liar.

Tim Cronin:

You shouldn’t lie.

Pat McPhail:

We let the jury jury come to their own conclusions about fraud and lying before we ever said those words. So we made sure that we never tried to overstep and you’re not shoving it down their throat. We just gave the facts

Kevin Carney:

And also we didn’t want to make our case harder than it was to win. We actually didn’t need to show fraud or lying because we had our negligence claims or negligent misrepresentation claims. So why raise our own bar? Let the jury come to the conclusion that this is fraud and it’s not like we didn’t lead ’em there.

Tim Cronin:

Well, and if you went on fraud, if you happen to get punitives, then if you went on fraud, you’re not getting your punitives overturned. If they find fraud,

Kevin Carney:

Fraud, fraud goes hand, hand in hand, hand punitives basis. I don’t think there’s much dispute about

Tim Cronin:

That. So the trial actually was pretty short, right? Was it three or four days?

Kevin Carney:

It was four days. Days, four days. And that was

Tim Cronin:

Purposeful, but was one of ’em just a half day for a jury instruction conference or

Pat McPhail:

Yes. So Thursday was mostly closing arguments, jury deliberation, we had the verdict by the

Tim Cronin:

Early afternoon. How much did you get done on the first day? Did you get jury selection done opening and some evidence on or was jury selection first day and then the second? So

Pat McPhail:

The only evidence that we put on the first day was just playing some admissions from the depositions, which worked out kind of perfectly for us because

Tim Cronin:

Start Strong

Pat McPhail:

Started the case off with the very basis of the claim being admitted.

Tim Cronin:

So you played, as I understand it, you had just enough time and the judge let you play like a 10, 15 minute clip of the corporate rep. You’d taken Pat, it was even less than that.

Kevin Carney:

Our videos were tight. The whole case was tight, very, very purposefully.

Pat McPhail:

So we also played some admissions from the sales lady who said a very important claim or very important part for our reliance issue that she, I just asked her, well, what did you think people want people to think whenever you were calling this type five? And the answer was that it was the rock that they

Tim Cronin:

Needed. Yeah. Was it two videos, type videos you played on the first day?

Pat McPhail:

It might’ve been 10 minutes total of admissions and videos and that was it. Then we watched for juror reactions, which was fun. Did they look to do that? Yes. So as soon as you start seeing people shake their heads and at important admissions and look dumbfounded by what they’re hearing, I’m going to

Tim Cronin:

Ask what was kind of the story from defense counsel in opening

Pat McPhail:

That this was a misunderstanding, a simple arms length transaction that from two sophisticated companies and one of ’em got the wrong idea based on the naming and it was just a misunderstanding at most there was no fraud.

Tim Cronin:

And so we always want to, you start strong. So the first witnesses you’re putting on or video, you play, you play and you don’t want to play a real long video first in the case you bring ’em, but if it’s You never want to play a real long video. Well yeah, sometimes you don’t have a choice. We can’t compel corporate reps to come in, but I usually want to put on someone right away that establishes everything we set in opening is true and a significant portion of what they just said that they’ve known the whole time this evidence existed was not true. So you had short video clips basically what was in those video clips to end your first day?

Pat McPhail:

Well, the corporate rep who was the actual tester, the quality control guy who knew I had ’em admit that they were selling it as type five. They knew they could not meet the type five requirements and they’ve known that that quarry has not been able to his knowledge ever if it had been there was maybe 30 years ago that they were able to make these requirements, but they knew it and they sold it anyway. And then the sales woman, the sales lady said the reason why she quotes type five is that she wants them to think it’s the rock that they need and she also got to have her live testimony and I’m sure we’ll get to that, but she was just really important because she was the person that I believe once they really saw where we were going with the case and making this about a bigger issue than just one quarry, they really tried to make her the fall lady that she wasn’t forgot to send along test reports that showed that they weren’t really making the type five gradations, but she was important because she was our point of contact, our client’s point of contact, and she was deliberately telling them it was type five and gave them a test report

Tim Cronin:

For them to rely on it being type five

Pat McPhail:

And gave them a test report that showed that not only that they were meeting the type five requirements, but also that each and every one of the five requirements was put into the test report as their target range that our client was looking for. And

Tim Cronin:

So those guys sound like in five minutes of video clips at the end of the first day, the jury heard all of the elements of fraud admitted. That’s what it sounds like they did.

Kevin Carney:

And I think it’s important what Pat just mentioned. I think that’s the first time we brought that up that it wasn’t like this company was just calling this type five. They actually sent out on our request, and it was common in the industry to do so spec sheets where they actually ran a test on the rock on a particular day to show its specifications and they provided that to our client and if you look at that spec sheet, it meets the specs we need.

Tim Cronin:

Oh, I didn’t know that.

Kevin Carney:

And that’s the testing evidence that we have. But then if you look at all the testing from other days and all the testing around those other days, so they just happened to send one that showed that it met the specs we

Tim Cronin:

Needed

Kevin Carney:

When if you would’ve done sent the one from the day after the day before. And so that we really used that as a point of contention. I mean it’s like, so you just happened to send them one that shows it meets the spec,

Tim Cronin:

So you got a positive feeling from the jury’s reaction in the little five minute clipse and that’s how you send them home at the end of the first day.

Pat McPhail:

Absolutely. So we had a good jury that we felt good about each and every one of the jurors, the one individual in the middle of the jury that I think we all kind of had in mind, not just me and Kevin, but also Caitlyn who was there. We all kind of thought that he was going to be the foreperson. He was probably the most animated of the jurors. I like to get an idea if they are paying attention, if they are reacting to the parts of the clips that we want them to react to, then I know we’re doing good. I know we don’t need to change something if you’re not getting reactions, if they’re not paying attention to the important parts of the video that you’re trying to play for, well at least you can do something about that. You can get that across in some other way. Reactions were great ended the first day we thought we’re well on our way.

Tim Cronin:

There was two more days of evidence before closing on the fourth day. What were some of the most, if any, impactful moments that you think really resonated with the jury the most over the next couple of days of evidence? What witnesses or what?

Kevin Carney:

Well, I think our crosses of the defendant’s witnesses were probably the most impactful, and that’s not uncommon, but I do really think the client testifying in this case was, I think that was really impactful on the jury to really put a face on this family business and to get to meet one of the owners of the company and hear his story. I think that was really impactful on them. And we know that for a fact. We know that for a fact. Yeah, mean in talking to jurors afterwards, they really cared for and got to know our client and they really connected with him I think. And so that I think was really impactful, a business case, but the business in this case really had a face, a family face, which is just a great connection with the jury compared to the other side, which they sent a plant manager to be their corporate rep at trial

Pat McPhail:

Who never spoke to them.

Kevin Carney:

It just didn’t. We kind of played with that a little bit too. No offense to him. I think Pat said at one point, but this is who they’re sending. Do they really care about what’s going on in this Courtroom whereas

Tim Cronin:

This is a real member of this community that is harmed and they don’t seem to care. Right. Was there anything unexpected that happened during the trial that you didn’t see coming and had to kind of adapt on the fly and oftentimes when that happens you’re able to get a win out of it? That

Kevin Carney:

I don’t remember anything unexpected. It sort of went according to plan. I mean, the real challenge of the case that we haven’t talked much about is that there really is something called a type five certified rock and Certified quarry. Certified quarry. And so they’re producing rock that’s been tested by the state of Missouri to meet the specifications and they’re certified. So if you go to that quarry, you’re getting the actual type five certified stuff that goes under our roads, the asphalt tunnel, our roads. And there was no dispute that this quarry was not certified and that our clients knew this

Tim Cronin:

Quarry. So they’re like, well, you could have gone to a,

Kevin Carney:

So that was the real dispute. They were saying, well, you’re just coming here to save money. If you really needed type five, you should have gone to one of the certified quarries that send you these sheets of paper with certifications on it and signed and dated and all this stuff. So that was the real defense. The real defense was, look, we never told anybody we had the good stuff, the certified stuff, we have this type five commercial. Everybody out there knows that it’s not the same that we can’t guarantee that it meets the specs. This is where people come when they want to save money and they don’t need the certified stuff. So that was the real defense. And I think we maybe at the beginning of our talk, we kind of shorted ’em on that a little bit, but that

Tim Cronin:

It kind of sounds like a, so you should have expected that maybe we would lie to you.

Kevin Carney:

Yeah, it does. That’s what it sounds like. Well, it kind of does. Our response to that was, well what were you saying that this was? Could you just show up with a pile of mud and dump it for us? And that would be rock. But because you can’t guarantee that it meets the specs. Well, what is it? What specs does it meet? And they admitted they were trying to meet the specs of the certified rock, but we saw from their testing that they really, really weren’t meeting it very

Tim Cronin:

Frequently except for the selective test that they sent that

Kevin Carney:

Said they did. Well, to be fair, you could look and find maybe one out of 20 or 25 that met the specs, but that was the real challenge. It wasn’t a surprise, but it was just constantly pushing back on that

Pat McPhail:

And it was also kind of a red herring. The reason why you have a certified quarry is strictly for jobs that MODOT is purchasing the rock on and

Tim Cronin:

They have

Pat McPhail:

To go to a certified, okay. Correct. So highway jobs require the rock to come from a certified quarry. That’s because MODOT is the one who is footing the bill and they are not going to buy rocket unless it’s from a certified quarry. For commercial jobs like this one, they don’t require, I mean you can require whatever you want to, but they did not require a certified quarry give this rock

Tim Cronin:

The people they were pouring the lot’s for.

Kevin Carney:

Yeah, I mean every job when you bid on it, they send you specs and it says, Hey, this is the kind of rock you need to use under the asphalt. There’s contracts, there’s bid packets, that kind of stuff. And so that’s what Pat’s saying. I mean the bid packets and the contracts that our client had here didn’t say you need to use Certified rock. They said you need to use a type five rock with these specifications. The specifications were the same as the certified stuff. Yeah, it just didn’t say the word certified.

Tim Cronin:

So I want to take us to closing argument, and I’m sure you were hitting the same points. We’ve talked about your underlying claims, so I want to focus on punitives, the court let you submit on punitive damages.

Kevin Carney:

Yes.

Tim Cronin:

So how did you and Pat, as I understand it, you did the initial close and then Kevin, you did rebuttal,

Kevin Carney:

Right? Both in the initial phase and in the punitive phase.

Tim Cronin:

We initial and punitive phase. So because in the initial phase you don’t get to put on financial information or ask for a number for punitives, you’re just asking them to find his punitive conduct.

Kevin Carney:

And I almost messed that up and said and asked him reading the transcript, I did almost cross that line, but I didn’t. So you didn’t draw an objection

Tim Cronin:

Combining ’em. We don’t need to do one at the time, but how did you each focus, your arguments in on the punitives are justified and what the right kind of number is? What evidence did you use for that and how did you frame your argument?

Pat McPhail:

Okay, so let’s start with the first phase then just punitives are justified. We need to define them liable for punitives. And my approach on this was to just make it about punitives from the start. The beginning of close was what I’ve done before in cases involving intentional torts. And that is to point out what the standard is in a way that people will remember In this case, you got to find outrageous conduct to find an intentional tort to be punitive. And so I just told the jury, listen, start off the case, start off my of close by saying I think the most important word that we have all heard here this morning is outrageous. It’s not important because I’m telling you that or anybody else’s. It’s important because that’s what the judge has told you and here’s the reasons why I think it’s outrageous, right?

So you go through and you start off the close with all of the best evidence you have of outrageous conduct at that point then you’ve got ’em focused in on what the real purpose is here because I’m pretty sure John told me this the afternoon before close. If that jury thinks that you’re there about rock, that’s going to be a big problem for you. So you had to make about something more and you start off and make the punitive conduct the most important part about the case. Why we’re here, make sure that you’re not going to let this go without

Tim Cronin:

Squeezing and screwing over small businesses all over our communities. All over

Pat McPhail:

The country. Exactly. And I think Kevin did a fantastic job. I’ll tell you what he did with kind of taking that, what I had put the foundation down with what the legal requirements are, what all of the crazy evidence that you heard, and then at rebuttal, taking that as an opportunity to just have a little bit of moral outrage over the way that they defended it and what they

Tim Cronin:

Did. Yeah, well rebuttal is more fun because the other side doesn’t need to talk anymore. So what’d you do in your first stage rebuttal?

Kevin Carney:

I mean, I viewed it as more of the emotional component of the closing argument in the case. It was really focusing back on that story and explaining to the jurors, look, we’re here. We got this far with all this really straightforward evidence that you saw and it gets this far because big companies like this, it doesn’t matter to them.

Tim Cronin:

They didn’t think they can do whatever they want.

Kevin Carney:

They think they can do whatever they want and that you won’t find them responsible for punitives and that even if you do, the number won’t be big enough for it to change the calculus for them.

Tim Cronin:

Is that the line you got real close to

Kevin Carney:

Right there? I came close a few times. I I almost started talking about that point about, I almost started talking a little bit too much about how big the number needed to be, and so I came close to that, but I think I reigned it in and kept it appropriate. But I mean it was really tapping into the emotional aspects of the case and empowering the jury and explaining to them that they’re the law, right? It’s them, it’s not us. They’re the ones that get to make the decision that can make a change

Tim Cronin:

To make a change. So you guys then, once you got the jury came back, you won on your underlying claim, did you win on all of your underlying claims negligence

Kevin Carney:

Fraud? Yes. It was unanimous, unanimous, unanimous, unanimous.

Tim Cronin:

Different

Pat McPhail:

On all six counts causes of Yeah, there was. And then yes, for punitives, correct. And the damages were to the penny, the exact amount of, oh, the compensatory of compensatory damages that we put into

Tim Cronin:

Evidence. You asked for an exact amount to the penny and they gave you that precise and check the box for punitives. So you go to a second stage in Missouri where you can put on evidence. It’s usually pretty short. Did you just read some financial statements?

Kevin Carney:

So I took financial statement that they’d filed with the SEC and just read portions of it to them. Reading net income revenue, cash on hand. Cash on hand was a big one.

Pat McPhail:

500 plus million dollars in cash on hand, 10 billion in revenue last year. 1.3 billion in profit, net profit last

Tim Cronin:

Year. So then how did you argue an appropriate amount? Did you suggest a number or did you just say, here’s different ways you can look at it to reach enough?

Pat McPhail:

The latter. So I was up most of the night the night before thinking through how this was going to go down and I ended up sending Kevin my close at three o’clock in the morning in an email, which is not weird for me at all. In trial it happens, man. No, for close. Yeah, I’m like that pretty much throughout trial. I’ve been asleep for like six hours at that point.

Tim Cronin:

Yeah,

Pat McPhail:

He’s probably waking up.

Tim Cronin:

It takes different strokes for different

Pat McPhail:

Folks. I enjoyed trying cases with John for the reason that one of us is always awake during trial.

Tim Cronin:

He gets up at three in the morning and

Pat McPhail:

He goes to bed at 10, and so I usually go to sleep at three and get a few hours. Anyway, I came up with the way to frame closing and finally that late and then got the opportunity to explain to ’em several, you go through and you borrow from a lot of different arguments and you do all kinds of things you want to do, but I think in this case, the most effective thing was what ended up working, so I know it was the most effective, was that looking at this from what kind of harm did they do to our client and how should that be punished? And so what happened to our client was they spent over a month losing out on all the other work they could have been doing. So they lost out on all that revenue and they had to pay back to redo these jobs, but I just focused in on it took over a month to fix all these projects and otherwise they could have been working on something. They lost gross revenue for over a month. If you look at how much money Farge made last year, 1.3 billion, how much was it every month in pure profit it works out almost perfectly because 12 months it’s a little bit over a hundred million dollars in pure profit. If they would’ve had the same thing happen to them

Tim Cronin:

For the same month that our client’s not making any money.

Pat McPhail:

It’s not even, and I said, this isn’t even really a fair comparison. It’s not apples to apples because this is all the money that Gleason, our company had to be coming in and we’re just talking about if they just lost their pure profits and their pure profits would be over a hundred million dollars and it’s just giving them ways to think about it. And that is eventually what they did. They came up with exactly one 12th of $1.3 billion, which was 108.3 something million dollars. So that was the way, it was an interesting way to put to frame it. I think that stuck with them, but that was how we did,

Tim Cronin:

What did you add in rebuttal and the chapter, pat laid out the different ways and we know now the one that work that they attached to.

Kevin Carney:

I think I went back to what I was talking about before. I just kept my same theme continuing talking about how this was David v Goliath, how the number had to be big enough to change the calculus here. I went back to that CEO because actually they mentioned my mentioning of the CEO in their close. So I wanted to talk about it again, and I really honed in on the idea that, well, thank you. You’ve found now they’re CEOs. I guarantee he’s going to know about this right now.

Pat McPhail:

Yeah, he’s

Kevin Carney:

Waiting, but whether he’s celebrating or whether he’s saying We need to make some change, all depends on what you do next. And so I used it as an opportunity to say, look, the job’s not done. This number has to be big enough. You can’t thank you. But

Pat McPhail:

We went in there

Kevin Carney:

With we’re not there yet. You’ve got work to do and now is what really matters because if this is a number that they can just brush off champagne

Tim Cronin:

Popping tonight, business as usual tomorrow.

Kevin Carney:

That’s exactly, that’s exactly it. If this is a number that can just brush off, then we’ve wasted all this time here.

Pat McPhail:

We went into the second phase close with an even more sober tone and serious

Tim Cronin:

Tone. We already

Pat McPhail:

Know you got ’em on your side, but I mean, I started off and obviously the first thing you want to do is just say thank you and we appreciate that and obviously our company does, and you might wonder why I’m taking this sort of tone with you real quiet and making sure that they’re on every word that you’re saying, and you might think that I would be up here celebrating, and I do appreciate what you did, but the job isn’t done. The reason why we’re all here is because how important this number is. If it’s going to be a little number, then this is for N. So what was the verdict? What

Tim Cronin:

Was the

Pat McPhail:

Compensatory

Tim Cronin:

Verdict and then what were the punitives? The

Pat McPhail:

Compensatory verdict was $942,000 and then the punitives was 108.3 million, which a month of profit from the

Tim Cronin:

Fart. So just under 109 million verdict

Pat McPhail:

Over $109 million total.

Tim Cronin:

Okay. How’d the client

Pat McPhail:

React when they were at the news? There was tears in his eyes.

Kevin Carney:

There were tears.

Pat McPhail:

Yeah. Hugging him after the verdict was very rewarding, and that’s what we do. That’s why we do this. Just kind of dumbfounded. This is a long time coming. So that was the feeling in that room.

Tim Cronin:

So beyond the dollars specific in this case, what do you think this verdict could mean, not just for your client, but for the business community in this industry maybe actually might make a change and hopefully, at least for this company?

Pat McPhail:

Well, you like to think that, I think in this company, certainly the jury did their job and they did exactly what we wanted them to do.

Kevin Carney:

I think it does have an impact on the business community. I mean, I think when people open up the business journal and they see this, I think a lot of people celebrate a big win when somebody’s committing fraud and they finally get caught because I think there’s a lot of other businesses out there that end up on the short end of this and they don’t have the resources or the fortitude. They just might not be able to do it given their financial condition to get this far to go that far. I think it’s important for everyone out there to see that there is a way and there is a path to hold people like this accountable and that oftentimes it’s through a contingency fee model, like the one that we offer to businesses when they’re in this situation.

Tim Cronin:

Because if you’re doing hourly with your big firm against the other side’s, big firm it, it drowns it out and you can’t do it.

Kevin Carney:

They can’t do it. They wouldn’t have been able to float this thing to pay us hourly. So I think mean just selfishly, obviously we want people to come to us when they’re in that situation. We’d love to handle that business, but I think it shows people that there is a path, and I think that that helps as a deterrent method number one, to deter other people that think they can get away with stuff like this. That there are firms out there, that there are businesses out there that will take action and do something about it,

Tim Cronin:

And that there’s a way that otherwise you, through a contingent to fee arrangement, there’s a way for small businesses to

Kevin Carney:

Actually do it right. It would be a blocked road for a business that small if you had to pay hourly for attorneys to handle a case like this that took six years.

Tim Cronin:

Do you guys have any other kind of final reflections for our audience of lawyers who may face their own commercial litigation battles send tomorrow a,

Pat McPhail:

We’ll make those cases that over $5 million cases, a hundred million cases? Yeah. Well, not all of them,

Kevin Carney:

But we’ll try. So I mean, my reflection on this is simplify, simplify, simplify. I think I’ve been involved in a lot of commercial litigation and it can just get too complicated. You can just kind of get lost in the weeds a little bit in a lot of these cases. And I think what really made this a palatable case for the jury was how we were able to simplify it, make it very short. We could have easily made this a two week trial, but why? I think some people think the jurors, if they’re going to return a big verdict, need to see a lot of evidence. It needs to be a long time so that the jurors think this is a serious matter and I just don’t think that’s the way it works. I think that we’re more programmed to digest things quickly in the era of social media that you just don’t need all that, pick the important stuff and run with it.

Tim Cronin:

We learned, I think from a case last year, Kevin, and I think there’s studies have been done about this, that if you have something that the jury will get, you expect them to get very angry about the subject matter of the case. If you let that trial drag out long enough, the anger will subside and you’ve lost them and they’ve forgotten

Kevin Carney:

It’s subsides and I think they get, it gets normalized, desensitized to it.

Tim Cronin:

Yeah, normalized, desensitized where, get in

Kevin Carney:

Quick,

Tim Cronin:

Get what you need. If it’s something that makes ’em mad,

Kevin Carney:

Get out. I wanted them deliberating as close in time as possible to hearing the good evidence that we put on.

And

As the plaintiff, I mean, we go first and then if a number, a lot of time goes by and there’s a week of the defendant trying to soften things. You’re right, that anger dissipates. So

Pat McPhail:

We’ve always known that too in trial. We just haven’t done as good of a job or we needed to. I think people have changed, but certainly when you think about cross-examination, right? What are you thinking about? Get what you need, get your best points in. I mean, that’s just a microcosm of what you want to do overall case,

Tim Cronin:

Don, swat every mosquito. You don’t have to put on every single good thing you got in discovery in your trial just because you got, and it’s hard to narrow it down like, well, yeah, but I can put this person on and they said this and this and it’s like, yeah, but is it really going to make a difference? Well, tremendous result. Guys, thank you for coming on. Again, this is Hat McPhail and Kevin Carney from our office talking about the recent big verdict win. Thank you again guys. Thank you. Thank you. This has been another episode of The Jury is Out. We’ll see you next time.

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