Battling for Big Bucks

"It's not over till it's over," Yogi Berra once explained. For us, trial isn't over until we've fielded the post-verdict phone calls. The outcome determines the kind of calls: congratulations or condolences. It's part of the rich fabric of our civil justice system. And it's the perfect way to wind up a big trial. You're too tired to start anything new, yet you hesitate to let go. So rehashing with friends is a good way to gain a perspective on the preceding weeks. It's a eulogy for the trial, allowing one to remember the case with fondness and also to come to grips that it's really gone.

When we finished the Levenberg trial, however, our experience was different. Levenberg is reputed to be one of the largest verdicts ever awarded in a commercial airplane crash. Not only were the phone calls significantly more numerous, but also qualitatively different. They were less congratulatory and more pointedly inquisitional. Exactly how did we get a $4 million wrongful death verdict for a 71-year-old grandpa, long since retired from any gainful employment, and $24 million for his 71-year-old wife, who had survived the crash?

At first we assured our callers that it was nothing special. A big case was much like a small case, only bigger. Our callers were unsatisfied with this answer and, after contemplation, so were we. The more they questioned, the more we realized that a big case was different in many ways.

The first realization seems self-evident, but evades many practitioners who are in a big case for the first time. It is simply this: while the rules of law may be the same, big cases really are different. A young lawyer once told of reading a transcript from a trial for civil battery where the defendant was asked whether he hit the plaintiff. His answer in his broken English was: "Hit him? Hit him? Wadda ya think? Was this dance? This was fight."

Yes. Certainly the first rule of a large damage case is to realize that "this is fight." The case is a fight, even before the complaint is filed. And everything that happens after is "fight." Issues of discovery, sufficiency of pleadings, and even lawyers' conduct, which would never stir a feather in an ordinary case, become matters of monumental conflict and importance once the case's dollar value passes a certain threshold. Memoranda and their invariable appendices resemble the Manhattan phone book. Efforts to seek interlocutory review crop up like tulips in April.

The reason, of course, is that the larger a case, the more it's leveraged. As the value of the case increases, every part of the litigation has a correspondingly larger potential to translate into significance at verdict time. Face it, in an automobile case where there is a $100,000 policy limit, no foul-up (regardless of how egregious) or no master stroke (regardless of how brilliant) can ever make more than a $100,000 difference in the outcome. Not so in the case that features giant damages. There, a mumbled answer may be worth $100,000, and a compromising document ten times that amount. This leveraging effect is a reality, and its practical effect is that the case is a fight from the beginning to end. Every legal skill and resource will be taxed, every point will be challenged, nothing will be taken for granted. O.J.'s defense provides an example. Was there ever an instance when, a prosecution examination having been concluded, the defense rose and, with a benign smile, stated: "No questions." On the contrary, the defense had a theory for every witness, some spin to give the testimony or some point to make.

In a civil case, when the realistic damages move into seven figures, this spirit operates. At eight figures, the law clerks have already researched the Statute of Edward II. And while every issue will potentially cause a major conflict, predictably, choice of law questions, especially where varying jurisdictions have very different damage laws, may be expected to produce a great flurry of activity which the plaintiff's team must be prepared to handle.

We say "team," for no one handles these cases alone. In the ordinary damage case, what a lawyer does or does not do is largely a function of the economic realities. In a $10,000 case, the depositions of the parties, the medical records, and accident report are probably sufficient. In a $100,000 case, you will do more. But when the value can exceed seven and then into eight figures, it is not the economic realities which limit what you may be willing to do. The case now justifies, and in a sense demands, anything and everything. This is the second feature of the big case-it involves more: more work, more cost, and more creativity. More everything!

The big case involves more work, not only because of the higher degree of conflict involved, but because the same leveraging process that attaches to law or strategy attaches with equal force to the facts: both real and illusory.

Real facts are those which are actually relevant and material, something to assist the plaintiff in establishing liability or enlarging damages. Illusory facts are those which might be relevant, but on inspection prove not to be. (Or, as will shortly be discussed in connection with focus groups, are technically irrelevant but nonetheless important.) One chief source is document production by the defendants. Where there are liability or punitive damage issues, the production of thousands of documents has become commonplace. To say that not all of these will be useful understates the matter. If one of a thousand is useful, it is a very productive review. In every case there are about 100 "hot" documents, documents that are central and essential to the outcome. To find the "hot" ones, however, Sherlock Holmes is needed.

In the Levenberg case, the documents were limited, since liability wasn't an issue. Thousands of pages of medical records, however, had to be reviewed. A team of attorneys had to become the document specialists for receiving, analyzing, and archiving the documents, obtained either in discovery or through our own investigation. Every document must first be Bate-Stamped, i.e., consecutively numbered. It will then be known by that number. Each document is reviewed, usually by the "document attorney," who will evaluate its importance based upon previously determined criteria. If the document is significant, three things immediately happen. First, a note will be made summarizing the document and its perceived importance. Next, the document will be magnetically copied This process amounts to putting a photo of the document into a computerized data base. In that form, it may be viewed at any time and printed in hard copy.

In ordinary cases, treating a document in this way, even an important one, would make no sense. If you wanted a copy, you'd go to the photocopier and make one. But the more documents, the longer it takes to retrieve one. Even when well organized, it can take 15 minutes to fight through the various files to the document you need. The computer copy, however, can be retrieved in seconds and printed in less time than it takes to walk to the photocopier. Such a time differential means the savings of an hour for every five documents reviewed. Multiplying this by the thousands of documents involved explains why technology is essential.

The last step is to add the attorney's note explaining the significance of the document. All this must be done immediately. The number of documents does not permit repeated document examinations to assess their worth. The trick is to touch something only once, at least until you've concluded that it fits into the puzzle. Other solutions do not work, least of all failing to consider all the documents or facts available, for the leveraging effect of large damages operates with respect to the facts in the same way as it does with respect to the law: every point has an increased value, every fact you've mastered has potential to translate into a large amount at verdict time, every fact you can't account for can mean a marked and significant loss.

"Real Time" Depositions

The same philosophy operates with respect to witnesses. Every witness, like every fact and every issue, has the potential for influencing a multimillion dollar verdict. Result: every potential witness is not only deposed or interviewed, but prepared for carefully. One team lawyer may be responsible for preparing for the deposition or interview, but the deposition will also be the subject of discussion and consideration by the team. Again, technology allows possibilities which only a few years ago did not exist. Even faxing is cumbersome and passŽ in an environment when a single e-mail message can have a whole file of material attached. Documents, even extensive in size, can be moved back and forth across the country almost as easily as handed across a table. Attorneys can work together from remote locations in a thorough, meaningful and economical way. Accordingly, one can expand the case's ravenous quest for resources far beyond the boundaries of the office. That's the good news. The bad news is that leaving town, whether for vacation or otherwise, is a meaningless act.

Technology plays another significant part in depositions, and that is the incredibly useful (and incredibly expensive) device called "real time" depositions or transcripts. Essentially, one of the team lawyers sits before a screen in which a transcript of the deposition is presented virtually at the same moment as the testimony is being given. Matters can be highlighted, tagged or indexed, during the deposition. The highlights are then all separated and available before everyone has put on their coats to leave. The whole transcript can walk out the door with you, all while fresh in your mind. Its substance can be included in the matrix of the case (the growing fabric of fact and law which will ultimately be presented at trial) and can be placed in the hands of experts and other attorneys instantly. Again, it allows you to touch something, even something as large as a deposition, only once before analysis, summary and assimilation. In Levenberg, we took more than forty depositions in a number of states in less than two months. This couldn't be done if one had to linger over anything, but the "real time" deposition system avoids that, while heightening mastery of the case.

This aggressive posture doesn't stop with legal arguments or discovery. It attaches to every aspect of the case, especially the use of expert witnesses. In every large case, experts are essential. Where liability is disputed in a products liability or malpractice case, one has the classic "battle of the experts," in which the quality of the witness is every bit as important as the expert's scientific credentials. But even where an expert is not absolutely necessary to establish liability, it is advisable to use one, not only to add credence to the plaintiff's theory, but because experts can discuss facts that would not be feasible to present as fresh evidence. The same reasoning applies with respect to damages, especially the huge damages being asked in cases involving catastrophic injuries. The economist's report stands at the center of the damages case. It is that which quantifies the myriad elements involved, dignifies what might appear to be mere calculation with the cloak of learning, and transforms what might otherwise be regarded by the jury as speculation about future costs into positive facts. The damage expert can summarize vast quantities of facts which, if one had to develop as direct evidence, would take the trial into the next century.

Get the Experts Early

These experts, like technology used with discovery, are expensive. Thousands of dollars are routinely expended. But a good damage expert is well worth the cost, and should be consulted soon and often. Most importantly, soon. Lining up the expert must be done before the ink is dry on the retainer, before you advise the defendants of your involvement. Certainly before you file suit. The reason came painfully clear in Levenberg where one of our most valued experts was already retained by the defense. The experts you generally retain are, after all, largely a matter of public record. Such names will be revealed from reported decisions and verdict reporters. To avoid this unpleasant experience, consider experts before you do anything. If you're not trying to phone them before your new clients reach the elevator, you do not have the spirit of big case litigation.

The right experts are crucial, but so are lay witnesses. One error that defendants make is that they use only experts, and plenty of them. Don't forget to use "real people" too-they give the case heart and flavor, and allow the jury to feel at home with you and your client.

In addition to the sagacious use of experts, use focus groups, which are, in effect, mock juries. Professionals put together mock trials by selecting representatives of the jury likely to be encountered where the case is venued. The skill and professionalism of the focus group company are important, for you will rely extensively on the information the focus group will provide. Despite their significant expense, you need more than one, for the information derived is invaluable and creates fodder for further experimentation.

You conduct a focus group trial by presenting your case to the model jury. Lawyers from the team will adopt different roles, including your adversary's. Witnesses can be used, and while we've never actually called a live expert, videotaped depositions can bring evidence into consideration.

Typically, the worst-cast scenario will be presented.

A defendant wants to know its highest possible exposure, while the plaintiff needs to learn what is the least amount a jury would award. In other words, focus groups can tell you the "floor" of value, not the "ceiling." This importance cannot be overemphasized, and to obtain the best results you must be brutally honest with the focus group and with yourself about the shortcomings of your case and the strengths of your opponent. Evaluating your case for settlement purposes is the most important use of focus groups, and is also the reason that more than one focus group must be used. The aberrant result must be weeded out, and a truly representative number arrived at which you can feel comfortable discussing with your client.

Multiple focus groups dress rehearse your trial. Kinks can be ironed out, pitfalls identified. But what is not self-evident is what you can learn that you never previously suspected. In the early days of our use of this technique, we had a case which involved horrible brain injuries to a young boy, a passenger of a car which turned, belatedly, in front of an oncoming truck. The issue of the relative fault between the driver of the truck and the car was key, since our plaintiff was being taken on a Boy Scout outing, and the insurance coverage from that organization would become available if the driver of the car was sufficiently at fault. The plaintiff and another boy were riding in the front seat with the driver. This fact never made an impression on us. But the focus group jurors had a different view. In their minds, the boys should have been in the back seat. Traveling with two boys in the front seat indicated a nonchalance and indifference to safety. At trial, we emphasized this point, which would never have occurred to us but for the focus group. The result was an eight- figure verdict. When we talked to the jury after the trial, they confirmed the importance of this point.

Focus groups are important both for trial and settlement. So are demonstrative exhibits. Just as experts must be liberally used, so should demonstrative exhibits. First, they aid the jury by explaining and highlighting points of expert testimony. Next, as the jury pool becomes younger (by the year 2000, the Generation X population will exceed 40 percent), there is a preference for visual evidence along with a concomitant distrust of the rhetorical. Finally-and this is most important-a parade of well-prepared exhibits projects to the jury the effort and concern of the attorneys offering them, along with their regard for the importance of the case. As trial attorneys, we are not always permitted to comment directly on the evidence or the witnesses, but the exhibits we supply to explain that evidence or assist those witnesses speak volumes. Therefore, no blackboards please. And leave the easel, pad, and magic markers at the office. All these are reminiscent of grammar school, the recollection of which is pleasing to a few and suggestive of authoritativeness. Equally important, these tools do not project that the lawyer believes the case is particularly important.

In a few days, you will be asking the jury for millions of dollars. The quality of your exhibits communicates that you honestly believe the case important enough to discuss numbers like that. And don't limit yourself to blowups of photos or hospital records, useful as these are. Be creative. One of the unusual features of the Levenberg case was that, unlike most airplane crashes, the victims had 45 minutes to contemplate their circumstances-that's how long it was from when the engine blew until the plane crashed at Sioux City, Iowa. One exhibit featured a videotape of the crash correlated to the audio between the tower and the pilot. A transcription of the conversation was subtitled along the bottom of the tape for added clarity and reinforcement. Expensive? For sure. But this is the presentation a big case mandates.

Because of pretrial disclosures and conferences, most demonstrative exhibits will be previewed by the other side. One loses the element of surprise, but may gain a disquieting sense of malaise which can translate into an enhanced settlement position. No matter how much the defense has spent in time and cost, it will be quite clear that you, too, are prepared. Like the show of force before a military battle, this display will make your adversaries think. They will gain an enhanced respect for your case and skill once they view your innovative and professional exhibits. In a much earlier judicial environment, showing the examinee the implements of torture often secured the desired result without ever having to use them. So too here. Deadlocked negotiations often start to move as soon as the defendants are shown the exhibit package.

In fact, most techniques which produce a big verdict produce a big settlement. An aggressive posture toward documents and depositions can overcome the early hurdles which are invariably, and often artfully, placed in the way of the large damage claim. Aggressive use of experts and exhibits cause the defense to sense the wrath to come. Experienced defense counsel will not have to play the hand to know where the trump cards are. All ultimately translate into settlement dollars.

A good settlement is usually better than a great victory in court. But you seldom obtain a fair settlement until your opponent can foresee your victory in court. All the preparation, the effort, the cost are not wasted because the case settles rather than being tried. They are equally necessary for both results. We always try, early and late, to encourage negotiation. You should never try a case for the wrong reason. It shouldn't be tried for publicity. The client's recovery should never be endangered for ego. Certainly it should never be tried because you don't want to waste all your work.

Fifty Million Dollars

There's only one reason to go to trial-you couldn't extract a fair settlement. And that provides the answer to the question that we're asked most. How can you look the jury in the eye and ask for 50 million dollars in a noneconomic wrongful death case? It's unthinkable, unimaginable, ludicrous. Where do you get the audacity, the bald temerity, the chutzpah, to ask for money like that! We get it from the defendants themselves. The defense's failure to recognize the case's potential and to make a fair offer empowers us to go after the brass ring. By refusing the fair settlement that justice and decency require, they make us try the case for the right reason-to get justice. When you've turned down the fair offer, you can't ask for these numbers, not without some intangible note of falsehood which the jury almost always senses. But when you have tried to resolve the case, when you're standing there because the defendants made you stand there, then you can ask. And we always have the backup of the Clifford firm rule, also known as the "blink" test. If you can look yourself in the mirror and ask for the damages without blinking or hesitating, you're not asking for too much.

This brings us, finally, to the last element you need to win the big damage case. It takes no extra time and it doesn't cost a cent. It is, simply, the sincere desire to do right by your clients, to obtain the recovery they deserve and the justice to which they're entitled. This desire directs your decisions, exhausts your adversaries, encourages your friends, and sustains the fight to conclusion, whether settlement or trial.