Trial Tactics: How 3 Litigators Won $4.82 Billion

To win a case, a litigator chooses strategies and tactics that fit the particulars of the situation and the outcome the litigator seeks to achieve. Here are three proven trial strategies that played out successfully for attorneys who deployed them in recent cases.

How Organized Trial Notes Helped Win a Massive Talc Case Verdict

No one has an infinite attention span during a conversation or presentation. Some statistics indicate the average human’s attention span is only eight to 10 minutes.

For trial attorneys, accounting for a jury’s attention span is essential. Jurors who are overwhelmed with information will likely tune out at some point during the trial. They’ll miss key points, and they may be unable to make sense of the information they do retain.

In a multi-plaintiff trial against Johnson & Johnson, attorney Mark Lanier helped focus jurors’ attention by sharing his notes. During the five-week trial, Lanier used an overhead projector to handwrite notes for the jury to follow in real time. At times, Lanier began with a blank page; occasionally, he used preprinted demonstratives or other documents to highlight key information.

This approach proved particularly useful when Lanier questioned a key expert witness specializing in materials science. During the course of more than three hours, Lanier kept the witness’s information organized for the jury. The resulting $4.69 billion total verdict in favor of the 22 plaintiffs benefited in part from Lanier’s sharing his organizational skills with the jury in the form of trial notes.

How a Relatable Closing Argument Backed a $12M+ Verdict Against a Florida Rehab Center

Certain vivid words and phrases tend to stick in our minds – which is why attorney Keith Mitnik refers to them as “stickies.” Stickies also help litigators like Mitnik organize compelling closing arguments around terms that are already familiar and relatable to jurors.

In a case against a Florida rehab center, Mitnik’s client developed pressure sores that worsened until they reached the client’s bones. At trial, Mitnik argued that the rehab center failed to take the proper steps to prevent the pressure sore from forming. Once the pressure sores occurred, Mitnik argued, the rehab center failed to treat them adequately.

Much of the case focused on the development of the severe pressure sore damage on the plaintiff’s backside. In closing arguments, Mitnik “stuck” the image in jurors’ minds with an equally powerful verbal image: “They said ‘Come on in, we’ve got your back.’” Similarly, he deflected defense arguments that the plaintiff should have been taking care of herself by saying, “This was not a do-it-yourself job.”

These phrases made the plaintiff’s situation relatable to the jury, driving the case toward a $12 million verdict in her favor.

How Staying Composed and Likeable Helped a Neurosurgeon Prevail in a $120M Malpractice Trial

In every human interaction, our minds examine information on how people behave as much as what they say. Attention to comportment can help jurors avoid becoming distracted by a witness’s behavior, allowing them to focus on the witness’s communication.

Such was the case for Dr. Marc Schwartz, who found himself facing a medical malpractice claim related to the removal of an acoustic neuroma, a tumor that can cause hearing loss and harm the brain if left untreated.

In the medical community, Dr. Schwartz is recognized as a leading expert on acoustic neuromas. At trial, however, Dr. Schwartz and his attorney, Louis “Duke” DeHaas, had to ensure that the jury saw the same seasoned professional the medical community did.

According to DeHaas, jurors appreciated Dr. Schwartz’s ability to stay calm and answer questions thoughtfully on the stand. They also responded to the doctor’s willingness to acknowledge his own shortcomings at certain points during the two and a half days he gave testimony. Dr. Schwartz’s ability to stay composed and likable on the stand contrasted sharply with the demeanor of the plaintiff’s expert witnesses, neither of whom fared as well in the jury’s opinion. The jury decided the case in Dr. Schwartz’s favor.

Key Takeaways

Trials can encompass an overwhelming quantity of information. How that information is organized and conveyed can determine how judges and juries understand the case – and rule on key issues. Employing effective trial strategies and supporting tactics can help litigators guide those rulings favorably toward their clients’ needs.