Litigation Efforts to get BANG for Your Buck
BY Patricia Baxter
| May 1, 2019

Show Notes

What litigation efforts get you the most bang for your buck? Do you always take a plaintiff’s dep? What about serve discovery? In the next episode, host Patricia Baxter is joined by Wendy Smith, Oliver Brooks, and Nate Bohlander. Join them as they discuss how to “pick your battles” and which efforts get you the best return on your client’s monetary investment! What do you think? Let us know! We want to hear from you!


Speaker 0:01
We had a very big trial in New Jersey. And plaintiff’s counsel who comes from a, an exceptionally well funded, big, powerful plaintiffs firm, multi million, maybe even hundreds of millions of dollars in verdicts strolled in wearing the front beiste outfit you have ever seen. She looked like a like she went to Goodwill and bought her her clothes. However, you

Speaker 0:31
do know this is 2020 We can’t say that.

Speaker 0:36
I can see it because she did it intentionally. She he orchestrated this image for the jury of the Erin Brockovich against the big, giant, multinational corporations,

Speaker 0:51
welcome to the defense never rests with Morgan miniguns, your monthly dose of Uncommon Sense about all things legal, and some that are not. Hey, everybody, welcome back to the defense never rest. Joining me today is the normal crew neat Wendy and Oliver. Hey, guys, Morning.

Speaker 1:07

Speaker 1:08
Good morning.

Speaker 1:08
So today we’re going to talk about litigation and discovery efforts that get you the most bang for your buck. You don’t do everything in litigation, but what really gets you the best return on your investment. And for this, we’re going to kind of go through the different stages of litigation. And I want to first throw out to you guys, from just a 10,000 foot view, litigation strategy. Do you do everything that you can? How do you pick and choose what you do? Why?

Speaker 1:40
No, I was gonna say it depends on the case. I mean, I have some cases that just came in where I think that I can cut the litigation right off at the pleading stage. You know, the complaints are defective, that I have a guy that just filed his second amended complaint, and is calling me asking me how to what kind of counts I need, he has to put into the complaint. And I keep telling him, I’m a defense attorney, I don’t tell people how to sue my own clients.

Speaker 2:09
What about you guys,

Speaker 2:10
I think one of the things that we do especially is every 30 days, as we talked about before we do a comprehensive status report to our clients and carriers. And that gives us an opportunity to kind of reconvene, get our mind right look at the thing, kind of not getting the nitty gritty of the case. But step back up to a 30,000 foot view and say, do you know what do we need to prove our case where we need to, to have on the record here to mount our defense, and we don’t just blindly throw money at every deposition? At the same time? We don’t, we’re not lazy, and we don’t not take deposition. So we kind of look at it and say, we here’s what ultimately we need to prove our defense here are the elements we need, how do we get there? And then we strategically pick the depositions we take based on that. And I think that 30 day window over and over and over throughout three or four years of litigation really does help, you know, kind of ground you and get you back to a good a good spot.

Speaker 2:58
Yeah, I agree. So I mean, that to me, the the phrasing Do you do everything that you can is kind of tricky, because on one hand, that makes it sound like do you do everything? In your clients best interest? versus Do you do everything that would be legally permissible within the confines of litigation? The latter, I don’t think is, is really a good way to be practicing. In these bigger cases where you have lots of witnesses, lots of documents, lots of experts, if you just did everything, you know, it was a it’s not just picking a one or two fleas off the dog, it’s a flea dip procedure, if you did that your bill would be so catastrophic Lehigh, and the return on investment will be disproportionately low. So we have to really think about where do we want to expend our efforts in an effort to position ourselves to prove and I say prove, because we don’t disprove things, that’s a kind of a fallacy to prove what we need to in order to either get out of the case via dispositive motion, or to position for resolution that is tolerable. Yeah,

Speaker 4:15
I agree. And I think it is picking your battles. It is a first identifying the battles that and the issues that you do need to prove. And then what’s the shortest line to that? You know, sometimes we can zigzag in this litigation and it wastes money, but going figuring out how we get there, do we need an expert or can we get it through witnesses, that sort of thing. So that’s what we’ll talk about today. So let’s start with what most cases start out with his pleadings. What do you think gets you the most bang for your buck in the pleading stage? I’ll throw it to you Oliver.

Speaker 4:47
Probably, if we’re going to include venue removal, that sort of stuff, that’s probably your biggest bang for your buck. Beyond that, I think punitive gives gets you Get a lot of bang for your buck in the products where we don’t actually see a lot of punitive is being awarded. I mean, in some of the mass torts, you do see that, but they’re always

Speaker 5:09

Speaker 5:10
But But in our cases, they love to throw them out there. And I think that that’s largely a leverage point a button push against your client like, Well, you know, there’s always these punitive zz hanging out there. So if you can wipe those out early, that’s the way to go. I’ve been finding more and more that my the better opponents that I’m going against voluntarily let them out. They understand that it’s kind of a long shot, particularly when they have other defendants in the case who are like negligence defendants. Because it’s really hard for them to get punitive against a manufacturer not impossible, it could be could happen. We’ve seen it come pretty close a couple of times. But beyond that, I think those are your biggest things. A lot of people like to gripe over konnor objections. And the only reason I ever do those and then

Speaker 6:03
explain what they are.

Speaker 6:04
The counter objections are it’s named after the seminal case on the issue. But Pennsylvania, at the it’s basically where a plaintiff will say any other such conduct that we discover that we think that you shouldn’t have done it, it’s it’s general, it doesn’t mean anything. In my humble opinion, whether they assert it or not in writing that’s always in there. Anyway, it’s improper. And because under our Rules of Civil Procedure, you have one shot at preliminary objections per pleading, you got it, it’s it’s user lose all or nothing, put them in or put don’t always put them in for that reason, if they you know, if there is a potential spam caller. I put like the preliminary objection to the Connor issue, only because you’re required to I don’t want to waive that and have somebody say that you should have done it. But in reality, if that’s the only issue I’m not going to do,

Speaker 7:05
well, you can always pick up the phone and call and negotiate that. But that’s an issue. So in Pennsylvania, we have this mechanism called plumber objections or pios. It’s similar to 12 b six, or in federal court or motion dismiss another jurisdiction, which is you can challenge the complaint on legal and technical deficiencies. I have yet to see a complaint where there was an appeal and there somewhere, but I rarely find file them unless it’s something big, like jurisdiction, and probably the biggest thing, personal jurisdiction, or for the products, world product ID being a big thing. But I really, you most the time, you can pick up the phone and call the plaintiff’s counsel, it’s a point five on a time sheet to get them to dismiss it versus filing preliminary objections or motion to dismiss or 12 b six, or whatever it may be. And that’s, I think, the bang for your buck that you get, it’s really figuring out, yes, I can pick that battle. But do I want to because it’s money on my clients bill, what do I get from picking that battle? And that for me at the pleading stage, I agree with you, I think removal if you can get a case from a bad venue to a better venue, you’re talking about a decrease in pure exposure, you’re talking about an increase in likelihood of dispositive motions being a viable exit strategy for you. Those are real value drivers for decisions. So that’s kind of what what about you guys? What do you think in the pleading stage?

Speaker 8:24
Yeah, just a quick add on to that. I mean, if you can, one of the things I’ve done in the past is kind of contacted the carrier and said, Listen, here’s what could potentially happen with a PEO. Who’s appealable issue? And they’ll say, what does that mean for us down the road? Well, here’s, here’s if it’s granted, here’s what happens. Here’s if it’s not granted, here’s what happens and put it in their court and say, do you want to incur the cost of doing that pa and of course, that is what we always do, as best practices called the plaintiff’s counsel and try to get them to stipulate certain things out or it sometimes it’s just as simple as a word or phrase to get out to really change things. But in all over basically, you both laid it out pretty well. But the only thing I’ll add is that, you know, you, you, when in doubt, always contact the person paying the bills and say, here’s a chance of success. Here’s what that would mean. And do you want to take on this the risk of getting denied bit versus this cost or not? Ultimately, down the road? So that’s that’s what I was only I would say, in addition,

Speaker 9:17
yeah, the only thing I can add, again, is when I look at the complaint that comes in, you have to look at the the counts that are there. I mean, I don’t just file Plumeria objections for the hell of it, you know, I filed them because there’s deficiencies in the complaint, the damages that they’re asserting, you know, I had a case recently where I’m found, I found peos because of the motional distress counts that are in there. You know, the win off of that pulmonary objection has set up my case now, going forward into discovery and then on and sets me up for a good dispositive motion on the back end. So those things you can kind of identify right off the bat

Speaker 9:56
when you look at the pleading. What about punitive damages Do you? Do you always challenge them at the pleading stage? Do you have any steadfast rules as far as what you do in response to those sort of allegations?

Speaker 10:10
Now, there’s no hard and fast rule like this not from my practice. I mean, if there is a, even like a one or 2% chance that there could be punitive damages in the case, I’m not going to file up to over that issue, because even in very conservative venues, you’re likely to not succeed in that. And, you know, I almost always ask plaintiff’s counsel if they’re willing to dismiss without prejudice. And most of the time, I’m seeing that they are willing to do that. Because, like I said earlier in products cases, they’re a little bit unusual. The one thing that you got to be careful with with preliminary objections is depending on your judge and your venue, if you lose those preliminary objections, you could end up with with bad quote, law of the case. Now, I’m in the middle of that that issue right now, I won’t say too too much about it, but one of plaintiffs claims, has no legal or factual basis possible, there is no set of facts that could be proven where this person can recover on that claim. Unless somehow, during litigation legislation changes the law of the Commonwealth, retrospectively, or retroactively. Rather, there’s no way that this it’s not a claim. And I have a PO on that issue right now. Because co defendants won’t withdraw their appeal on that issue. And I want to have a say, on the odd chance that we get oral argument that, you know, Judge, at least if you’re going to deny it, do it without prejudice so that we can re address this later in the case, and we don’t face an issue, or someone saying, hey, this has already been ruled upon. This is this is a good client, which it cannot be.

Speaker 11:53
I don’t know if I agree with you on that. I think the preliminary objection phase is very different standard. I mean, I see the arguments happening where you raise it early on, and then you reread it and mSj level or at the motion eliminate level. And they make that argument at law, the case thing I’ve never seen that actually work for a plaintiff’s counsel, it

Speaker 12:14
never works, but it’s it. It’s repeatedly used. And when you’re trying to explain to your client, you know, whether that’s your your carrier or your you know, the CEO of your insured. You know, they want to say were you to chew he on the trigger with this issue, and you wanted to put it before the court before we had any facts, you know, that’s why in the particular case, I’m referencing with I’m not going to say the name of but I would have rather been quiet on that issue. And then readdressed, either through a motion for judgment on the pleadings to close a pleadings, or more than likely a motion for summary judgment, partial summary judgment, at least, I think that’s that would have been a preferred way of doing it. But were backed into a corner because of the actions of others in the case. Now, I could still have done what I would normally do, however, I run the risk of not being heard, during, you know, the the fight over the preliminary objections in the odd chance that they’re actually going to give oral argument which they I don’t know what 20% of the time do maybe.

Speaker 13:26
Well, you also raised a pleading that I don’t is used a lot, maybe there’s a reason for it motion for judgment on the pleadings. So pleadings closes, and then you can fight you have the opportunity to file a motion, we don’t find them a lot. Do you guys see this in your practice?

Speaker 13:41
I don’t think I have in the last two years. I can’t think of a time the last couple years have

Speaker 13:46
I’ve done it twice in my whole entire career. And it’s very fact specific. And it has to do with how the case again, you have to look at how the case was brought in as dollars. You know, what happens on the onset, when you get the complaint. The other defendants how they respond, defendants get out of the case they come in. So again, it’s something rare that you see, but it is very fact specific to the case itself.

Speaker 14:10
And I think if you have a really strong, tight legal arguments, sometimes motion for judgment on the pleadings can be a valuable tool, but you have to approach how you file your answer. And what you attach to your answer, as you know, is advancing your cause. So I’ve done it a handful of times, but more for leverage than anything more for settlement lovers than anything but it’s not something that we tend to use. So that’s interesting. Anything else about pleadings that you let’s say what you don’t do in pleadings,

Speaker 14:41
how you answer the pleading and how you make your cross claims. I cannot stress this enough. I’ve seen this happen in my practice over and over again. People like to put boilerplate language in for cross claims and it comes back to bite you at the time of when the discovery is over and trial because Because, you know, if you just say I file a generic cross claim against defendant x, and you didn’t specify what that is, defendant x will use that against you when you go into trial. So it’s very you can’t you have to caution, especially young attorneys that are, you know, drafting these pleadings, you really have to teach them that, you know, you don’t just take, you don’t just crib off of another person’s pleadings, you really have to think about carefully how you’re answering the complaint and how you’re making those allegations and cross claims.

Speaker 15:29
Don’t think that the new matters are from a defensive, same thing, depending on where you are, if you’re new yorker or Pennsylvania State court or federal court are called different things. But you know, you can’t do that, that, you know, tourney’s sometimes say, do you have a good premises liability set of new matter or firmer defenses? And you can’t just cut and paste that into something and say, That’s good enough? Because, you know, there are there are things all over and I had a case recently where plaintiff’s counsel missed a allegation and a complaint. And it came back to bite him in a in an oral argument on a motion dismiss that we filed, that they just they forgot to mention something. So that was something the court really took into account. So you know, in my aviation cases, I have preemption, new matters and firmer defenses that are based on federal statutes based that are that are aviation based. So you have to tailor those things and take your time, because you get one shot I’ll ever mentioned before user lose it. There’s no you know, you can maybe amend it later if you have a motion for leave to do so. But be careful at the outset. Because that’s once that’s filed. That’s, you know, you may be looking at that two years later,

Speaker 16:29
I think you have to be very cognizant of waiver, you know, if you don’t include some of the cross claims, so cross claims, but the affirmative defenses or new matter, you can be deemed to have waived that my worst story that I ever saw was not me, but it was a co defendants counsel, probably 510 years ago, where they answer the complaint and didn’t have any new matter in it not no affirmative defenses whatsoever. And then they went to file an MS. J, on something that should have been asserted in the affirmative defense and the judge and we raised it, we said you waived it, and the judge agreed and dismissed, that has MS. J because he waved the issue. So you have to be cognizant of what you need to put in there just to preserve any waivers just because we do have some standard stuff just for that reason. But beyond that, I think you do have to get case specific.

Speaker 17:18
And just from a sort of a logical standpoint, you know, we see with young attorneys, they want to do a cross claim against every single defendant. Well, it doesn’t always make sense to do that. If you have a if you’re representing the the manufacturer of a product you want to cross claim against the distributor of that product. You might not want to do that, because you may be sending mixed messages in to the jury when if and when that’s read back that? Oh, yeah, the products defective, but it’s really this dealer’s fault that it’s defective? No, no, it’s not defective. You also may be alienating a potential ally in litigation, you also may be really pissing off your client by monkeying with their, their business relationship with with one of the CO defendants. So, you know, you need to be cognizant of that and not just do something because it’s it’s a knee jerk reaction.

Speaker 18:21
And always question well, do I do it? Can I do this? And if I can, should I and why? I think those are, especially in the pleadings phase. Because once that’s done, it’s done. You can always amend it, but it’s the further away you get from the pleading stage, the harder it is to amend. Well, let’s talk about discovery. Written discovery. Do you always serve written discovery to always serve raags? and request production?

Speaker 18:45
Yes. That’s one of those check the box I practice. Yes,

Speaker 18:49
yeah, I think you have to, you know, always serve the same stuff you don’t always serve. The deluge of written discovery that we do in our big cases, you may only serve one set of rugs instead of five or six or seven sets of rugs. And also, I think, is venue dependent because some courts are more likely than not to allow supplemental sets later as you go. And some are like, No, no, this is this is a machine you go through these stages. You know

Speaker 19:28
what, like in Pennsylvania, you’re not limited when placed in a major jury ARBs you are but in federal court You are so you really do have to pick and choose which ones you serve.

Speaker 19:38
I’ll give you an example. And I know you guys talk about the products round, but I’ll talk about from an reason auto case that we had. The a lot of times before the suit is ever brought. a plaintiff contacts their attorney, the attorney sends out a demand package, pre suit and that contains a number of medical bills, documentation. This attorney thought plaintiff’s attorney thought that the demand package that he sent was sufficient, and said, Why do I need to answer your written discovery? Well, and the attorney looks at me and says, What do I do? And I said, you go file a motion, and you get them to respond to the written as whoever you think that they’re going to be honest. And they’re going to include everything in the demand package that they get. Or I’ve seen people who just file, you know, see attached to the answers to discover the answer to interrogatory. And they just attach a bunch of documents, but they didn’t answer the pertinent questions that you asked there. And, you know, we have mechanisms here in Pennsylvania, you can file a motion to compel to get the information that you need, because that’s how you properly defend a case.

Speaker 20:47
And I think when it comes to ranking, the most expensive things in litigation serving written discovery is not on the top. It’s such a cheap tool, not cheap, but one of the cheaper tools to employ that serving one set of rocks, one set of rpds, or just RPGs, whatever it may be, isn’t going to have a huge bill. So

Speaker 21:08
even if you have to do two or three motions to get that stuff, which we often do. You know, it’s still not that expensive. It’s nothing compared to doing a, you know, battery of depositions that you have to travel to do that you may have to serve in a foreign venue, you know, the subpoenas that as a written discovery is cheap. It’s fairly easy.

Speaker 21:34
Well, if you get insufficient or our answers that are not satisfactory, do you always file a motion to compel more specific? No,

Speaker 21:42
no, one times a bad answer is better than then a fully expressive and responsive answer.

Speaker 21:48
If it’s a substantive response, it’s bad, let it sit until the depth and then I usually bring it up at the depth. I always send discovery deficiency letter before I do that, and I’ll call the person to me, I think that that oftentimes plans councils that are aware of their case and know where this is going anyway? Well, we’ll say, well, they want to do the bare bare minimum to meet the requirement not to get a motion compel filed against them. And some of them don’t even care if that happens. So but I always do you know, call first send an email, let’s chat on the phone. Hey, here are the four issues I have we take care of two on the phone, put 200 discovery efficiency letter to get that memorialized. And then wait 10 days or 20 days follow up. And, you know, after all that, then file a motion compel, because while it’s not extraordinarily costly, it still takes time to draft it, file it walk over there or argue it. I mean, there’s there’s a cost associated with it. So if you can take care of that over the phone or with a letter, that’s much better.

Speaker 22:44
And I think you’re right, I think that and to go back to that theme filing and and drafting it actually isn’t where the bulk of the money is. It’s attending the hearings, if you’re in a county like Philadelphia, where it’s a court call in New York, same, I understand it that you could be waiting six, seven hours, sometimes

Speaker 22:59
I’ve been heard at 3:42pm. In New York, yeah.

Speaker 23:02
And then you have a 10 hour day before, you know, and that’s where the money comes in. So you try to avoid them as much as possible. And then if you can’t, you really have to ask yourself if that is an expense to be had.

Speaker 23:13
Well, I like Nate’s idea of trying to be civilized and call and work it out. But we have a couple of opponents that they don’t give you discovery, not one word of discovery, not one page of document unless there’s an order compelling them to do that. So I’m not going to waste the point one or point two or point three on the phone with those people. I’ve worked with them enough to know what their mo is. And I’m not going to bother. It’s a very small minority of my opponents, though, but they’re there on the list. Comes emotion.

Speaker 23:46
I did speak to an attorney in New York once I said, Where’s your discovery to do it was due a month ago? And I’ve sent you three emails about it. Where is it? And they said, well know what you do. I mean, he’s like that, like, it’s just a declarative statement, what you do is it’s you just follow motion come up, and then I get 30 days from that point. I mean, like, it just happens that way. It’s a game to them. And I was like, well, we should have told me that, you know, but anyway, it’s just, you know, to look at that way, I think is certainly in bad faith. And we could talk about motion for sanctions and what you do in that sense later, but you know, some people just look at it. Like, I’m not, I’m only going to give you the bare minimum, and only when the court screams at me to do so. Yeah. And that’s, you know, we don’t we don’t operate that way. And we don’t like when other people operate that way.

Speaker 24:26
Yeah, I think for me, the most bang for the buck in written discovery is the documents themselves, right? I would rather have the subpoenas out I’d rather have the medical records in or the witness statements or whatever it may be than actual substantive written discovery. So if I get poor written discovery responses in if it identifies documents or things that are people that I can subpoena, I’ll just go to that source and see if that answers my question,

Speaker 24:53
and I think there’s a very real difference in how ordinary people perceive Written discovery responses of a plaintiff versus that of a corporate defendant? You know, I just got discovery in a significant plaintiffs case where the responses that they’ve given me are patently incorrect. They it’s where did you get this document? Right here? No, you didn’t. It didn’t come from there. I know, because that’s my website. Like, I know, I know, you didn’t get it there. But whereas, you know, and I think the jury can look at that and go, and it’s just some regular guy, he probably forgets where he, where he got that or where it came from. And it’s not his fault, you know, he all he did is sign up with this lawyer, you know, and, but contrast that with with a large corporate entity, if you say something wrong in your responses, they beat you over the head with that incessantly. And a lot of times it’s it’s actually more difficult to deal with, particularly if they’re in another country, there’s a language barrier or something like that, it can be more difficult to communicate, then for a plaintiff to pick up the phone, plaintiff’s counsel will pick up the phone and say, Hey, you know, john plaintiff, what happened here? Okay. All right, we’ll put that down. I’ll send you the verification, you know, I always find that to be a really Stark, sort of double standard.

Speaker 26:31
Well, let’s talk the second part of discovery, which is depositions. And, besides experts, I think this is one of the biggest ticket items, financial items in a lawsuit, because you’re dealing with prepping for it, traveling to as many situations and attending and for the largest cases, some of your depths can last a couple days. So how do you approach which depths that you take, depending on the case that you have?

Speaker 26:58
Well, I think, plaintiff plaintiffs if it’s a you know, husband, or wife or family, and then you have, you know, not any eye witness, I mean, if Joe was around the corner and heard a noise and and that’s all that that person is going to give you. And it’s a it’s a relatively minor case, maybe don’t take that. But I, you know, I take, I can’t think of a case where I haven’t taken an eyewitness step. as just a matter of course. And I think that we can all speak about this around the table. But that’s the that’s the one thing that impacts the value the most. It’s the one thing that the client and carrier always want to hear about. You know, is the person likable? How did they present did it What did they wear when they showed up? What did they How did they act? If it’s on video, show me Show me sections of the video that you know, I think are important. And so as a matter of course, it’s it’s plaintiff and I witnesses. And then beyond that, you know, usually we have a corporate designee to put up and potentially other defendants do as well. But I can’t imagine a case where the plaintiff and everyone you can find that was around what happened, you don’t depose?

Speaker 28:05
Yeah, I think the two biggest groups of opponents most important, of course, is point if you know, the injured party, if that person is not alive, then the people close to that person, family members. Even if they’re not married, we may do a, you know, boyfriend or girlfriend’s deposition or something like that. But eyewitnesses to me are the most important. And ironically, we know statistically that they’re the least reliable. I mean, human memory is not great. It’s just particularly when a person is observing something, and they weren’t intentionally prepared to remember it. You know, when you went into school, if you’re a good student, you walked into that room intending to learn something to remember it. But if if I asked you who walked through the revolving door downstairs before you this morning, there is no way you can remember that. No. However, if someone gets to you beforehand and says, Is it true that Nate walk in right before you look at him, Doctor, you remember that? That happens more often than I think it should in cases. Either way, the eyewitnesses are the most important bit of discovery in your entire case, as my old boss said, one half blind, drunk and ya know on the corner who says that car went through the light beats 10 PhD experts that have been paid 10s of 1000s of dollars, because he saw it.

Speaker 29:45
I hope you all do this with a caveat though. I mean, I believe in the obviously plaintiff, plaintiff Sue’s you, you take their deposition, I witnesses but I want information before I just take depositions for a lot of strategic reasons but one meaning that sometimes you, you might know something about the opponent, the potential opponent, that maybe you don’t want to take the deposition right away. It sounds odd. And it’s not something that you do very often, usually depose people that are identified by the plaintiff. But if there are people, I don’t offer people on my side, unless you’re asking for them. It’s one for cost reasons to for strategic reasons, things that maybe that, you know, you don’t necessarily think will be helpful to the case and will convolute the case. So just keep that in the back of my mind when I decide who and what you’re going to who you’re going to depose.

Speaker 30:40
And I’ll go back on a little bit of a different point of view. I’m not sure that you always take plaintiff step. Can I say that like there are certain situations where let’s say, you know, Philadelphia county has an arbitration program as a lot of the surrounding counties, where cases that are valued less than 50 grand go into the arbitration program, you go to our if there’s an appeal is to de novo you start from scratch, although with a lot less of a timeframe. I think some situations on those cases where it’s an arm level case, maybe it’s like a stubbed toe, I’ve had those before a stubbed toe, they probably should be in the municipal court level, but it’s not. Do you take the point of step I’ve I have given the advice, sometimes where Let’s wait till after the ARB, let’s roll the dice at ARB because it’s going to cost you way more than this case is worth. If we can get to our we can settle it. Or we can you know, if there’s a judgment and we can settle that, that maybe we don’t, I’m not sure that you always take the point of step. I think there are just carve out situations for when you don’t. And I’m not sure about eyewitness eyewitnesses, either. I think the larger exposure cases, absolutely. But I think when it comes to if you have a client, where cost is a number one their priority, I think it’s a conversation that you have with them. You say, here’s what the list of eyewitnesses how many we have, can we do them all in one day? Right? Can we bang them out all in one day? Do you need the transcript because a transcript is the second most expensive part of taking depths? They’re typically around 1000? if not more, depending on if it’s more than a for our for our dap? So some things to consider. But I mean, for the most part, I agree with you. But I think there are some times where you say you know what, we could probably get away with either waiting or not doing it on this particular case.

Speaker 32:22
So when I was early in my career, when I did a ton of arbitrations. I always took their depths. And I always brought a court reporter to the deposition to the arbitration itself. Because, you know, one of my old bosses says, How do you know when they’re lying or mouse moving? You know, so you’ve got your building this this ongoing record. And more often than not, I found some some big holes in their, in their issues, that disc internal discrepancies. Which, you know, I think really did help on a couple of cases. I’m thinking of one who was a plaintiff’s counsel was actually one of the professors who taught one of the bar prep courses I took. And he had an absolutely awful plaintiff. And it was a rear end case. I mean, I’m like a second year associate, um, you know, doing this stupid rerender in Philadelphia, you’re gonna pay on it, you know. And she, you know, plaintiff just couldn’t keep her story straight. And so we took the deposition, I cross examined director or at the arbitration, and at the end, she, you know, made up some nonsense like, Well, I was wrong at my deposition, because I had taken a whole bunch of oxy cotton, and I couldn’t remember what was going on. And I’m like, really, because I asked you right at the beginning, I’m gonna read my part, you read yours? You know, are you under the influence of any drugs, alcohol or medication? And what was your part? I said, No, you know, so and the case went away for like, I think it went away for like, 1500 bucks. So that was money well spent.

Speaker 34:03
Would it have gone away? For more? If you hadn’t done that? And that’s the question. I think, you know, in 2020 hindsight you have,

Speaker 34:10
yeah, I think it I think it was worth it in that case. The other thing too, that I haven’t disclosed here is I was I was in house for a major insurance company. So, you know, the cost of doing that really wasn’t a huge issue. You know, the, they had a contract with the court reporter where they were paying a really low amount, um, I was being paid a really low, you know, I mean, and it in the end, it was a different business model, a different litigation model altogether. So, but I still, I still feel weird about walking into a courtroom having never heard directly from the plaintiff.

Speaker 34:51
I’ve done it and it feels weird. It feels anti everything you’re taught in law school is to do everything that you can in the best interest of your client. I think once you get out of law school, and you been practicing 510 years and you’ve had the conversations with the clients about the bills and why you spending this and why you spending that. It becomes less uncomfortable. So

Speaker 35:08
especially if they’re complaining about the bill, right.

Speaker 35:10
All right. Well, let’s move on to experts and expert reports. You know, we do with a lot of I mean, most personal injury cases, you have to have some sort of expert products we deal with a lot aviation you have your experts? Do you get experts in every case? And how do you decide which ones deserve expert authority?

Speaker 35:32
Well, what I always ask is, can a layperson understand this? on a jury? If not, you know, we would need an expert to support our position or defense, we have cases, I mean, we have lots of cases, we have zero experts, or you know, usually one at least for damages. And then we have case, I don’t know what the what the record is all over 1413 and 15. And, and, you know, I think every time I’ve needed more than two, I would I mean, we calibrate the office, I’ll pop into people’s office and say, Here’s give me give you this case, in three minutes, I’m thinking these four. And it’s almost say you need a life care expert, or some will say you don’t need a an expert. And if you have an engineer, you don’t need an expert in this little sub engineering industry. And so I think that we knock that around all the time. And that changes during the course of the case. I mean, I think oftentimes, after two or three steps, you say, Okay, we have three, and then maybe after 10 steps, you have six or seven, because other things have come up. But just on the damages side, you can usually figure out what you need at the beginning, based on the the allegations and the medical bills. And you know, for instance, we oftentimes go back and forth about a prosthetics expert or a life care planner, or a vocational expert if there’s a lost wage claim. So I think you can kind of set that earlier on in the case, then you can the liability stuff, which seems like the opposite should be true. But it’s not because the liability changes over the course of the case more than the damages do. But we we do collaborate quite a bit on making sure because experts are expensive, the most expensive part, right? And lawyers are not necessary. I’ve you know, you don’t want to send a bill to the to the client on an hourly basis, there are a lot that we know we got this, you know, you always ask for authority to do that. But you know, it’s anticipated this expert will be about 8000. And at the end between all the reports and supplemental reports and their time and everything, it’s 30. And they don’t want to get that bill, if that doesn’t, you know, if the needle doesn’t move on settlement value, or verdict value. So

Speaker 37:32
it what with the products liability, defense, you run the risk of not being able to put forth facts that are critical to your defense. If you don’t bring them in through your own expert, you will always be allowed to cross examine opposing experts. But as I said earlier, we are not in the business of disproving plaintiff’s claims, we’re in the business of proving what our narrative wants to establish. So do I always get experts in products cases? Absolutely. I can’t remember a single one where I haven’t gotten an expert. You know that that might not be true, there may have been one or two where it was clear that the product was mis identified. It’s not our product, I’m not defending somebody else’s product. You know, and we’re not dealing with some weird market share theory of liability in these types of cases. So barring a mis identification of the product, I’m getting experts now on the damages side. You really should make every effort that you can to share damages experts with your co defense because number one in many venues such as Philly, you’re going to get one eye me per discipline one neurological ima one orthopedic guy me one prosthetic eye me if that’s what you’re doing? You’re the judge is not going to say oh, well, the plaintiff has to go to seven different orthopedic II Emmys because they’re seven different defendants. As much as I dislike that it kind of makes sense and seems a bit equitable. But more importantly, you don’t want seven defense damages experts in the same field because they are going to have discrepancies. And discrepancies do not help you want a unified damages front. I don’t care if Nate and I are co defendants. And we are going against each other on liability tooth and nail we are allied in terms of keeping the damages down. So

Speaker 39:44
we should essays both our clients 10s of 1000s of dollars. Oh my god. Yeah.

Speaker 39:49
Yeah, I think you know, for me the damages side of the expert equation. The Volk claim is always something that I go back and forth on so for when a plaintiff alleged If lost wages or future lost wages, do you always get an econ and invoke? I mean, that’s the combination that you normally get to round out your defense, but do you always need them? I think it depends on the case, sometimes you the vote claim is so weak that all you need to do is cross examine the opposing expert, I find that’s probably less, the least likely the situations you more often than not do want your own person up there. But the number sometimes if it’s a four or $500,000 vote claim, maybe you can get away with cross examining, and those issues you can talk about with your client on on whether you get that stuff.

Speaker 40:38
You also have to take into consideration who is plaintiff putting up? You know, when you take go through the discovery process, you know, sometimes plaintiff doesn’t put a liability expert up. So then do you go get an liability expert, because you’re, you know, I always tell my clients, I’m not here to make claims or playing case, you know, that’s not our job, we’re not there to bolster their case. So you have to weigh out who they’re putting up, you know, if they’re not putting up those types of experts, maybe we don’t, you know, and you weigh that decision out and discuss that with your clients.

Speaker 41:12
I agree. Alright, let’s talk dispositive motions. Ms. js means really what a dispositive motion is right. Do you always file Ms. J’s, if they’re available to you?

Speaker 41:22
No. Especially not in Philly. I, you know, and I’ll give a big secret here on this podcast, we follow this JS as a as a way to leverage mediation. Plans councils know that I’ve I’ve heard I mean, when we walk into mediation, five times out of 10, they’ll say that, they’ll tell me that I did that. So it’s not like a big secret as being unveiled here. But you know, oftentimes, if we mediate a case, we’ll set mediation for a month or two after discovery ends, and then we’ll find him astray sometime in that interim period, so that it’s open and hasn’t been ruled upon when the mediation goes forward. So, you know, depending on the venue depends on the strength of the mSj, depending on the subject matter, depending on the how good the plaintiff’s counsel is, or how you know how much he’s made his he or she has made their case, that can be a really, really valuable tool, certainly, for granted. It’s a it’s a, the biggest win, you could have short of a genome defense verdict, the jury or from a jury. But there are a really, really good leverage tool for either knocking out all the claims, or two of the five or three of the four or eight, you know, and it does make a difference in mediation, I think,

Speaker 42:26
I think it It tends to make a difference in terms of plaintiffs counsels, you know, interaction with his or her client as well, because a good plaintiff’s attorney is going to have to explain what the pending mSj means to his or her client, and what a granting of that motion would mean. And perhaps that’s the first time that the plaintiff has heard these issues. You know, I don’t I can’t say for sure that players councils that sit down and say, Look, they filed this motion, if they win, you’re sunk. I don’t think they’re gonna win. But here’s what they’re saying. I don’t know, if they do that. I think that they probably are obligated to do that. And again, that that’s getting that issue in front of the of the plaintiff to, you know, bring back the expectations to ground level. You know, are you going to win very many Ms. J’s? No, not really. It’s a really high standard. And judges are going if they’re on the fence, they’re almost always going to lean against granting it. I think you got to be beyond over the fence, you got to be out of the park, you know. But I think that they’re valuable tools. But at the same time, they’re hard to win. They’re hard to draft, I find msgs to be very difficult to do effective drafting of. Because you’re you have to argue such a narrow confines, you know, you can’t just say, well, and then Johnny says this, well, that’s an issue effect, you know. So they’re there. They’re powerful, but they also have limited application, I think. And if I’m not sure I’m going to win it. You’re never really sure. But if I’m not sure that it has a really good basis, I’m probably going to opt not to do that just save those issues for for trial.

Speaker 44:33
And I think it matters what venue you’re in and knowing your venue, because in Philadelphia are not going to get a hearing. I mean, if you guys ever had oral argument on mSj, maybe on venue on one coos, but you know, you’re not likely to get a hearing on an MSA so it’s decided on the paper so it’s drafting, initial motion and brief and then receiving plaintiffs opposition and then maybe a serve reply and that’s it. But in federal court, much more extensive jersey, you’re going to get a hearing on that. The hearing is oftentimes a, again, a call of the list. So you could be there all day. And that’s, I think, where it starts to tick up in terms of costs. So if you have an iffy, mSj, and a venue where it’s just just filings, it’s cheaper. So maybe you take a chance, on on that mSj in that venue versus the more expensive one, again, conversations we have with the client, but that’s something that we weigh, as well

Speaker 45:26
see, I like the ones where you get oral argument, because

Speaker 45:28
why do to me

Speaker 45:30
back? I think it’s better. Yeah, it

Speaker 45:31
is better, but it is also more expensive.

Speaker 45:34
I would say that what top three questions I get from our carriers or clients is what’s the chance to segment j? Miss j wins? That’s, that’s it’s not the most frequent question. It’s top three. And we you know, I can’t imagine a time where I’ve ever said 50% or more. So usually 10 to 40. Ish, buddy. Well, I’m a really good writer. Yeah, anyway, ah, yeah. So but oftentimes, they say, well, then one of the benefits if it’s, how much is it going to cost? What will that entail? And what are the benefits and the benefits oftentimes will not be what we’re getting granted, but it’s all these other things we’ve talked about? and usually they usually they say, Well, okay, let’s, let’s shoot for it. Why not? We have one shot at this, let’s, let’s go for it.

Speaker 46:13
And why wouldn’t you if you know, like, if you’re in a venue at Philadelphia, it’s not going to be hurts on the papers, it raises the issue. And again, you use it as if you lose, it’s still used as the issue doesn’t go away, you know, the issues that you bring up the NEMA Shea, you use it as leverage from when you’re talking about settlement, you know, and hopefully getting the numbers down. From the plaintiffs perspective.

Speaker 46:33
We’ve talked about plaintiffs realizing for the first time you said all over that there that they may get no money. But I’ve had cases where I finally Miss Jane and plaintiff’s counsel realizes the deficiencies in their case, I had a case recently in New York, that the the name partner of the firm was on the case. But the associate did all the depositions. And I found them to stay at the end saying, your client never identified the defect. And, and mediation, the partner said, What do you mean, that’s, that’s ridiculous. And we went through the transcript, which he had never seen. And he was like, Oh, crap, if even if this mSj is denied, I gotta go to afford a trial. There’s nothing. There’s no defect. I mean, so, you know, it’s like when he was saying, it’s not just that moment where the image is decided it’s going forward. Plans, counsel, some don’t sometimes don’t realize the deficiencies in their case. Yeah.

Speaker 47:19
My favorite are plaintiffs motions for summary judgment, those are my absolute favorites. It should be like relabeled, like, motion for automatic win, or something like it’s it. I’ve only had him filed against me once or twice. And it’s so transparently nonsense that, I mean, I just, my response is like a one paragraph like, no, this is not how it works.

Speaker 47:44
Well, let’s we have two final categories to go through. The second to last is motions and lemony, which I think probably the biggest tool to shape trial, a lot of cases don’t get there. But if you if your exit strategy, desired exit strategy is trial motions and limiting or what’s going to make or break your case. Agree, not agree. Yes,

Speaker 48:04
yeah, absolutely. Yep.

Speaker 48:06
I mean, it’s not just a shape trial, but it’s again, to, to draw people out of the stratosphere back to reality. I mean, if if your opponent is saying, Just wait until so and so takes a stand and says this, and you’re like,

Speaker 48:25
he’s not taking the state board

Speaker 48:26
or says he ain’t taking a stand, or he’s been ordered not to talk about this. If that’s what you’re resting your case, if that’s your foundation, maybe our offer looks a little bit better to you. You know, it’s particularly powerful with limiting, limiting witness testimony. Especially with experts, because some of these experts that we come up against, will say anything for a nickel, you know, and there’s no foundation I had one two years ago in Essex County where plaintiff’s expert is actually co defendants expert against my, my client had no factual basis for his report whatsoever. None. And we were able to eliminate him out of the case, that changed the dynamic dramatically. It actually led to, to granting of summary judgment, because they didn’t have a case at that point. So I think motions eliminate are super powerful tools, but you should use them like a scalpel. Because if you put 15 or 20 in front of a judge, they’re likely to just deny all of them, even though there’s two or three in there that are like, absolutely should be granted.

Speaker 49:50
Yeah, it’s one where you don’t you don’t throw everything up on the wall to see what sticks. You really have to pick and choose which ones you file.

Speaker 49:56
Yeah. And I’ve actually had a trial couple years ago where I debated Somewhere on an expert report that had no basis to it, and I was debating whether or not I let the expert in, it actually would make my case, I still won the case. But I made my, what he was saying actually helped me even more. So I’m like, Do I want him in? You know, I filed a response or whatever, he he never testified in the case. But those things I weigh out to, you know, like, What are you? What do you want to see go into trial? What do you want to see? Get out of trial?

Speaker 50:28
Yeah. Okay.

Speaker 50:30
last topic is kind of the miscellaneous courtroom shenanigans extras that don’t fall neatly in any of those categories. What sort of things would you add to the list of this acts gets you a really great ROI on value or whatever it may be big bang for your buck, what are the some of the things that we should consider,

Speaker 50:48
it’s your quality of presentation, how you how you appear to that jury. And that doesn’t mean that you have to be flashy, you don’t have to come in with, you know, fancy AV equipment to show demonstrations, but just how you how you present. And I largely think that that has to do with how you interact with your opponent in front of the jury. You know, if you’re glaring at them, and when they’re making, giving their opening or doing cross examination you’re like, like, I think that comes across as like weak. mean, sometimes we all do it, not intentionally, but like, it’s important to to appear as though you’re in control of this situation. And not to flinch whenever they say something ridiculous in the courtroom. I also am a believer in limiting your objections to the greatest extent possible, because all you’re doing is really drawing attention to things you may want to draw attention to a certain thing. But that’s important. How you present is super, super important. One, some of it is just your posture and how you behave. One of the really great attorneys that was at my old firm was since left I understand. He had the greatest courtroom move I’ve ever seen when a witness would go off the rails on a tangent saying stuff that he shouldn’t be. He would be standing anyone just go. For those just listening. He just put his hands up like whoa, he wouldn’t say anything. And most of the time, the person would would sort of back off. And if they didn’t, they look like they were being like adversarial towards counsel. And it really was a really powerful tool. Similarly, we had a very big trial in New Jersey. And plaintiff’s counsel who comes from a an exceptionally well funded, big, powerful plaintiffs firm, multi million, maybe even hundreds of millions of dollars in verdicts strolled in wearing the front beiste outfit you have ever seen. She looked like a like she went to Goodwill and bought her her clothes.

Speaker 53:13
However, you do know this is 2020 I can’t say that.

Speaker 53:17
I can say it because she did it intentional. She he orchestrated this image for the jury of the Erin Brockovich against the big, giant multinational corporation, she dragged with her, her one associate. And we had a team of up to there was up to 10 of us in the courtroom at the at that time, we had cases in cases of evidence, she had one little Rolly bag, she reminded me of my elementary school librarian. Nothing could be

Speaker 53:53
who obviously is going to play well in front of a jury, right? Yeah,

Speaker 53:56
nothing could be further from the truth. She had like the crappiest exhibits that look like arts and crafts had been, you know, cut out with like the play school scissors. And she, she rented a cheap car to drive the injured and she personally drove injured plaintiff to the front gates of the front door of the courthouse where the jury also came in, you know? Sure. So she’s not driving. I believe I could be wrong, but I think she either had an S Class or a Bentley that she drove around, and instead she’s had like a Chevy Cruze.

Speaker 54:33
That’s awesome.

Speaker 54:36
To meet this person, that’s great.

Speaker 54:38
And, you know, it was it was absolutely obscene. And the jury bought every morsel of it. They were like eating it up. So the moral of the story is, that stuff works. So

Speaker 54:56
what about I’ll add mine real quick, but I think early Online mock mock juries for the right case can really give you a good bang for your buck, you can learn a lot about whether your story will play, what pieces of evidence, the jury latches on to what themes you should develop. It’s a little expensive. But for the right case, I think that is an expense that people should be considering, especially in the age of nuclear verdicts, this new term that we’re everyone’s using now, I think, for those right cases, it’s a great tool.

Speaker 55:27
What about you guys? Any

Speaker 55:28
closing statements?

Speaker 55:29
Yeah, just I think the two things you could do and they cost one, not nothing, but next to nothing, or one be in complete control of the evidentiary record, know everything that does take time to review and make notes and things. But if you go to a plan step, and you’re super well prepared, and you can quickly move to a tab and say, Nope, interrogatory response number 52. Remember, you said this, and does your signature at the end and use testify if you can do that and look the part and act the part of Be confident in front of the client in front of plaintiff him or herself. That does wonders. I mean, I’ve heard family members talk in the hallway about you know that not It wasn’t me, I wish it was a co defendants counsel, saying he’s really he really knows his stuff. Oh, man, they’re, they’re really prepared. They’re not just going to roll over and settle this case. So that’s, that’s number one. The other thing you can do is act in good faith and be kind to plaintiff’s counsel, if you act if they say Listen, I need this. It’s not it’s not objectionable in any way. Don’t play the games were send me a written response, a written request. If you say, Sure, no problem I have that. I’ll get that to you right away. I’m just gonna redact this welcome if you if you act and are in control of your knowledge of the record, and you act kindly and in good faith with opposing counsel, that projects a lot of confidence and strength, and they’ll respect you back. And I think it changes the value of the case over time. I really do.

Speaker 56:44
I think it changes, you know, it changes the bill too, because you are going to get favors that you probably wouldn’t get you you’re not gonna have to spend money on certain fights.

Speaker 56:54
Nothing when we’re talking about bang for the buck, you know, you’re here trying to save client money. But when you’re getting into trial, one of the biggest things that I put out there is technology. A lot of courtrooms are not, don’t have the technology as others still do not have the technologies others had an argument years ago about getting something called an Elmo that you set up in front of the court to show your exhibits. Because that time you don’t want to be fiddling around with your laptop, something it’s like a projection screen, you can just put your medical document, you can talk to the witnesses, you can ask the questions. It just that amount of money, even though it’s an expense trial is expensive, that makes you look better for in front of the jury and makes you look organized. It makes your court your court case run more efficiency efficiently. And also you can talk to your opposing counsel. Hopefully you’re not have not alienated them by the time you get to that case and you share the cost. Well, I

Speaker 57:51
love it guys. Great podcast. Before we wrap up any other closing statements,

Speaker 57:58
I wanted to address a concern concerned viewers comments. We’ll call him we’ll call him Bob. Let’s Let’s leave it at that. Apparently, I got some facts wrong in the legal movies podcast. The judge in my cousin Vinnie was not lurch from The Addams Family. It’s

Speaker 58:23
Herman Munster.

Speaker 58:24
It was Herman Munster, who is played by Fred Gwynne. Sorry, I don’t know that The Munsters was even in syndication when I was alive. Oh, please. Oh, yes. Thanks.

Speaker 58:39
Me, and it was when I was growing up.

Speaker 58:42
Alright, that’s

Speaker 58:44
concerned viewers said that I got jack Nicholson’s character wrong and a few good men, which I looked up and did. So, Bob, I’m sorry. On that note as well.

Speaker 58:52
I say kudos to Bob for bringing it to our

Speaker 58:54
attention. someone’s watching with the Wi Fi. Yep, listening.

Speaker 58:59
All right, well, listen, great podcast if you guys like what you hear, really appreciate a comment or subscribe or like whatever you prefer. But until next time on the defense next, never rest. See you then.

Speaker 59:13
Do have a good day.

Speaker 59:14


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