Articles by Levick Experts
Did you know that professional sports teams are compelled to play half their regular season games in somebody’s else’s ballpark? Unfair! There ought to be a law against it or at least a well-financed reform movement.
But wait a minute . . . Some teams also have winning records on the road. How do they do that? How’s that possible?
Forgive my over-extended metaphor but, at this point in the history of our civil litigation system, hostile venues are as poor an excuse for losing law suits as hostile crowds are for coaches who let conference titles slip through their fingers. Of course, fans aren’t jurors. They don’t decide outcomes. But their influence is such that, as the saying goes, the visiting team must often “take the crowd out of the game.”
Recent events show that defense lawyers can take the crowd out of the game as well and that that crowd includes the jury pool. Recent events also show that plaintiffs’ lawyers, who may now be less able to rely on what were once friendly venues, know how to effectively change their jurisdictional strategies and adapt to changing attitudes.
Most important, perhaps, recent events suggest neither side can necessarily rely on forum-shopping as an easy and decisive advantage in litigation. Demographics will always be a significant factor in case strategy but it’s no longer as simple as it was even three or four years ago.
The whole issue needs to be reformulated.
A Message For Merck
On August 19, 2005, a jury, finding Merck & Co. liable for the death of a Texas man who had used Vioxx, stuck an exclamation point on their decision with a $253.4 million verdict. They didn’t know that Texas caps awards at around 10 percent of that total, but no matter. In a 10-2 decision, the jurors had sent the defendant a stunning message in what disinterested observers depict as one of the weaker plaintiffs’ cases among the myriad Vioxx actions pending.
One likely knee-jerk reaction among observers was that, after all, this case was tried in Texas. For many years now, the tort reformers have been identifying certain jurisdictions as “plaintiffs’ hellholes,” bastions of angry working class folk who are prone to blame corporations for product-related tragedies and to reward victims with staggering sums in compensation.
Texas has always been high on the list of places you don’t want to be if you are a corporate defendant. So has Mississippi. So has Madison County, Illinois.
However, the problem for Merck as it assesses fallout from Ernst v. Merck is that Texas is actually a rather large state. The case was tried in a town called Angleton, around 30 miles south of Houston. It does not seem to be a seething cauldron of populist sentiment. No insistent demagogues haunt this relatively becalmed, rather suburban environment. So forget forum-shopping as a decisive factor. This case would have as likely been lost in Orange County, California.
It is additionally to the point that, reviewing their post-trial comments, it seems clear that the only jurors who had made up their minds before the trial began — who brought any kind of hard bias to court with them — were the two that voted for Merck. Based on what I’ve read, the ten others sound like they were much more willing to hear both sides of the case.
Enemy Territory
Now let’s go back to 2003, to the first trial of Bayer Corporation for the cholesterol drug, Baycol, also blamed in the deaths and severe illnesses of multiple users. As with Vioxx, this first trial was a real bellwether and it was held in Texas.
But unlike Ernst, Bayer was going to trial in Corpus Christi, which by any interpretation is a prototypical plaintiffs’ haven, demographically, culturally, and politically. Plaintiffs counsel was a Corpus Christ native named Mikal Watts. He is a most talented and successful lawyer as his two airplanes and private airstrip attest. His mother was a local judge and his client was a sympathetic 82-year-old victim. Throughout the trial, he kept reminding the jurors that Bayer isn’t even an American company.
Watts’ opponent was a big-city lawyer, Philip Beck of Bartlit Beck Herman Palenchar & Scott in Chicago, and big-city lawyers are, proverbially, anathema in such smaller Southern cities. All the elements were thus in place for a corporate decapitation of epochal dimension. But Beck effectively presented his facts, used technology to simplify and dramatize his points, and — no small matter — he effectively presented himself as a fair-minded and credible advocate.
Verdict: 12-0 for Bayer.
True, Beck is an unusually good lawyer — but why would a major corporation go to court with anything less than an experienced trial attorney who is able to counter home court advantages in any jurisdiction? For years now, defense lawyers with less stellar reputations than Beck have been writing and speechifying about how to win in plaintiffs’ havens. How to humanize the corporate client. How to appeal to jurors’ honest instincts to do the right thing. In a truly populist milieu, those instincts are blessedly commonplace.
Major law firms in the Southeast now have offices in Mississippi. They’ve opened there to try cases in local jurisdictions. In enough instances, they’re winning those cases.
Double-Edged Sword
For corporate America, this juxtaposition of the Vioxx and Baycol cases offers a crucial, double-edged lesson. Forum-shopping is now an unpredictable game and blaming defeats on ostensibly hostile venues is a very dangerous habit of mind to get into. Voir dire must always be local and matter-specific.
Many plaintiffs’ attorneys have already learned this lesson and, as a result, they may right now be gaining a step ahead by reformulating their own jurisdictional strategies. To be sure, they will always be attracted by an opportunity to go to trial in Texas towns like Beaumont, Galveston, or, even post-Baycol, Corpus Christi.
But they are also taking a different and, in my view, wholly admirable tact. They are no longer relying solely on friendly jurisdictions but consciously filing cases in the backyards of their corporate targets. And, they are using that choice of venue as a strategic weapon, reminding the jury pool that, by filing in the corporate venue, they are cutting straight to the chase, they are seeking speedy results, and they are winning on the facts and just the facts.
Many of these plaintiffs’ lawyers are switching strategies in response to some very telling developments.
On June 26, 2005, the St. Louis Post-Dispatch reported the image of Madison County as a plaintiffs’ haven has caused a local backlash. Jurors there don’t want to be thought of as shills for either side. These jurors have also become acutely aware that cases filed in their local courts have no direct link to Missouri, and that is something they truly resent.
According to the article, “[t]he plaintiffs bar ... is blaming the shift on negative media coverage and an advertising campaign sponsored by business groups.”
Well, what do you know! It seems that, with a little spadework in the court of public opinion, the defense bar and the business community can directly turn the attractions of the so-called plaintiffs’ havens against the plaintiffs themselves.
Again, we find the same overall dynamic as when the Vioxx and Baycol verdicts are compared. Neither public opinion nor jury attitudes are set in stone and that certainly includes the so-called judicial hellholes. Public opinion and jury attitudes are up for grabs everywhere.
If proof was ever needed that defense lawyers and businesses can hold their own with plaintiffs’ lawyers in the media and message wars, here it is. The benefits of such persistent engagement in the public fray can total billions in jury awards and settlement costs.
This contestation for the hearts and minds of all jurors is salutary, as I believe honest plaintiffs’ lawyers will concede. For them, it means they can now target less controversial jurisdictions and still have an equal shot at winning. The defense must indeed be wary. Powerful plaintiffs’ advocates are as capable of winning a PR fight in Angleton as in Corpus Christ; in Fairfield County, Connecticut as in Madison County, Illinois.
Most important, this attitudinal sea change in the so-called judicial hellholes gives us realistic cause to renew our faith in the jury system itself. In an age of politically cynical mass manipulation, such diverse and unexpected responses in Angleton, in Corpus Christi, and in Madison County, remind us that human beings are not caricatures or ideologues, and that they cannot be cheaply bought.
In any jurisdiction, there are intelligent and honest jurors. Events now prove that it is in the interest of both sides to treat them accordingly.
Richard S. Levick, Esq., rlevick@levick.com, is President of Levick Strategic Communications, which has directed the media in the highest-profile matters, from Guantanamo and Napster to the Catholic Church controversy and the Rosie O’Donnell Rosie magazine lawsuit. Larry Smith is the Director of Strategy for the Firm. Their latest book, 365 Marketing Meditations: Daily Lessons for Marketing & Communications Professionals, is available at Amazon, com. Copyright 2005 by the authors. Replies welcome.
But wait a minute . . . Some teams also have winning records on the road. How do they do that? How’s that possible?
Forgive my over-extended metaphor but, at this point in the history of our civil litigation system, hostile venues are as poor an excuse for losing law suits as hostile crowds are for coaches who let conference titles slip through their fingers. Of course, fans aren’t jurors. They don’t decide outcomes. But their influence is such that, as the saying goes, the visiting team must often “take the crowd out of the game.”
Recent events show that defense lawyers can take the crowd out of the game as well and that that crowd includes the jury pool. Recent events also show that plaintiffs’ lawyers, who may now be less able to rely on what were once friendly venues, know how to effectively change their jurisdictional strategies and adapt to changing attitudes.
Most important, perhaps, recent events suggest neither side can necessarily rely on forum-shopping as an easy and decisive advantage in litigation. Demographics will always be a significant factor in case strategy but it’s no longer as simple as it was even three or four years ago.
The whole issue needs to be reformulated.
A Message For Merck
On August 19, 2005, a jury, finding Merck & Co. liable for the death of a Texas man who had used Vioxx, stuck an exclamation point on their decision with a $253.4 million verdict. They didn’t know that Texas caps awards at around 10 percent of that total, but no matter. In a 10-2 decision, the jurors had sent the defendant a stunning message in what disinterested observers depict as one of the weaker plaintiffs’ cases among the myriad Vioxx actions pending.
One likely knee-jerk reaction among observers was that, after all, this case was tried in Texas. For many years now, the tort reformers have been identifying certain jurisdictions as “plaintiffs’ hellholes,” bastions of angry working class folk who are prone to blame corporations for product-related tragedies and to reward victims with staggering sums in compensation.
Texas has always been high on the list of places you don’t want to be if you are a corporate defendant. So has Mississippi. So has Madison County, Illinois.
However, the problem for Merck as it assesses fallout from Ernst v. Merck is that Texas is actually a rather large state. The case was tried in a town called Angleton, around 30 miles south of Houston. It does not seem to be a seething cauldron of populist sentiment. No insistent demagogues haunt this relatively becalmed, rather suburban environment. So forget forum-shopping as a decisive factor. This case would have as likely been lost in Orange County, California.
It is additionally to the point that, reviewing their post-trial comments, it seems clear that the only jurors who had made up their minds before the trial began — who brought any kind of hard bias to court with them — were the two that voted for Merck. Based on what I’ve read, the ten others sound like they were much more willing to hear both sides of the case.
Enemy Territory
Now let’s go back to 2003, to the first trial of Bayer Corporation for the cholesterol drug, Baycol, also blamed in the deaths and severe illnesses of multiple users. As with Vioxx, this first trial was a real bellwether and it was held in Texas.
But unlike Ernst, Bayer was going to trial in Corpus Christi, which by any interpretation is a prototypical plaintiffs’ haven, demographically, culturally, and politically. Plaintiffs counsel was a Corpus Christ native named Mikal Watts. He is a most talented and successful lawyer as his two airplanes and private airstrip attest. His mother was a local judge and his client was a sympathetic 82-year-old victim. Throughout the trial, he kept reminding the jurors that Bayer isn’t even an American company.
Watts’ opponent was a big-city lawyer, Philip Beck of Bartlit Beck Herman Palenchar & Scott in Chicago, and big-city lawyers are, proverbially, anathema in such smaller Southern cities. All the elements were thus in place for a corporate decapitation of epochal dimension. But Beck effectively presented his facts, used technology to simplify and dramatize his points, and — no small matter — he effectively presented himself as a fair-minded and credible advocate.
Verdict: 12-0 for Bayer.
True, Beck is an unusually good lawyer — but why would a major corporation go to court with anything less than an experienced trial attorney who is able to counter home court advantages in any jurisdiction? For years now, defense lawyers with less stellar reputations than Beck have been writing and speechifying about how to win in plaintiffs’ havens. How to humanize the corporate client. How to appeal to jurors’ honest instincts to do the right thing. In a truly populist milieu, those instincts are blessedly commonplace.
Major law firms in the Southeast now have offices in Mississippi. They’ve opened there to try cases in local jurisdictions. In enough instances, they’re winning those cases.
Double-Edged Sword
For corporate America, this juxtaposition of the Vioxx and Baycol cases offers a crucial, double-edged lesson. Forum-shopping is now an unpredictable game and blaming defeats on ostensibly hostile venues is a very dangerous habit of mind to get into. Voir dire must always be local and matter-specific.
Many plaintiffs’ attorneys have already learned this lesson and, as a result, they may right now be gaining a step ahead by reformulating their own jurisdictional strategies. To be sure, they will always be attracted by an opportunity to go to trial in Texas towns like Beaumont, Galveston, or, even post-Baycol, Corpus Christi.
But they are also taking a different and, in my view, wholly admirable tact. They are no longer relying solely on friendly jurisdictions but consciously filing cases in the backyards of their corporate targets. And, they are using that choice of venue as a strategic weapon, reminding the jury pool that, by filing in the corporate venue, they are cutting straight to the chase, they are seeking speedy results, and they are winning on the facts and just the facts.
Many of these plaintiffs’ lawyers are switching strategies in response to some very telling developments.
On June 26, 2005, the St. Louis Post-Dispatch reported the image of Madison County as a plaintiffs’ haven has caused a local backlash. Jurors there don’t want to be thought of as shills for either side. These jurors have also become acutely aware that cases filed in their local courts have no direct link to Missouri, and that is something they truly resent.
According to the article, “[t]he plaintiffs bar ... is blaming the shift on negative media coverage and an advertising campaign sponsored by business groups.”
Well, what do you know! It seems that, with a little spadework in the court of public opinion, the defense bar and the business community can directly turn the attractions of the so-called plaintiffs’ havens against the plaintiffs themselves.
Again, we find the same overall dynamic as when the Vioxx and Baycol verdicts are compared. Neither public opinion nor jury attitudes are set in stone and that certainly includes the so-called judicial hellholes. Public opinion and jury attitudes are up for grabs everywhere.
If proof was ever needed that defense lawyers and businesses can hold their own with plaintiffs’ lawyers in the media and message wars, here it is. The benefits of such persistent engagement in the public fray can total billions in jury awards and settlement costs.
This contestation for the hearts and minds of all jurors is salutary, as I believe honest plaintiffs’ lawyers will concede. For them, it means they can now target less controversial jurisdictions and still have an equal shot at winning. The defense must indeed be wary. Powerful plaintiffs’ advocates are as capable of winning a PR fight in Angleton as in Corpus Christ; in Fairfield County, Connecticut as in Madison County, Illinois.
Most important, this attitudinal sea change in the so-called judicial hellholes gives us realistic cause to renew our faith in the jury system itself. In an age of politically cynical mass manipulation, such diverse and unexpected responses in Angleton, in Corpus Christi, and in Madison County, remind us that human beings are not caricatures or ideologues, and that they cannot be cheaply bought.
In any jurisdiction, there are intelligent and honest jurors. Events now prove that it is in the interest of both sides to treat them accordingly.
Richard S. Levick, Esq., rlevick@levick.com, is President of Levick Strategic Communications, which has directed the media in the highest-profile matters, from Guantanamo and Napster to the Catholic Church controversy and the Rosie O’Donnell Rosie magazine lawsuit. Larry Smith is the Director of Strategy for the Firm. Their latest book, 365 Marketing Meditations: Daily Lessons for Marketing & Communications Professionals, is available at Amazon, com. Copyright 2005 by the authors. Replies welcome.