1 DEFENSE NEWS Fighting for Justice and Balance in Civil Courts Late Spring 2010 IN THIS ISSUE How Jurors Think: Using Both Reason and Emotion to Attack Damages 4 Social Media & the Workplace 7 Call for Auction Items 20 WDTL Officers 22 WDTL Membership 23 Calendar of Events 24 Tegman Update: The Washington Supreme Court Lets Rollins v. King County Metro Transit Stand By Erin H. Hammond, Fain Anderson VanDerhoef, PLLC 1 The Case Law Leading up to Rollins. Tegman v. Accident and Medical Investigations, Inc., 150 Wn.2d 102 (2003) is an important Washington joint and several liability case. It grew out of nonattorney Richard McClellan s decision to practice plaintiff s personal injury law through his company, Accident and Medical Investigations, Inc. ( AMI ). A host of ethical transgressions occurred, including unauthorized settlement of cases and pocketing of settlement funds. AMI clients including Maria Tegman sued McClellan, AMI, and real attorneys and others employed by AMI. Plaintiffs prevailed against McClellan and AMI on intentional tort claims, and against the remaining defendants on negligence claims. The trial court entered judgment jointly and severally against all defendants for all compensatory damages, including those remedying the intentional torts. It also entered judgment separately against McClellan and AMI for exemplary damages. The negligent defendants appealed, arguing among other things that joint and several liability for both negligent and intentional acts violated RCW Division One considered the case. Tegman v. Accident and Medical Investigations, Inc., 107 Wn. App. 868 (2001). It rejected the appellants contentions, focusing its analysis on Welch v. Southland Corp., 134 Wn.2d 629 (1998). Welch had involved a robbery and shooting at a convenience store, and a subsequent lawsuit against the store. The store pleaded an affirmative defense of a right to allocation under RCW The goal of such an allocation was to make the store liable for only its own proportionate share of the damages, which is a recognized purpose of RCW Welch, 134 Wn.2d at 633 (citation omitted) (acknowledging the Legislature s goal in providing for allocation of fault is...that generally an entity be required to pay that entity s proportionate share of damages only ). Welch moved to dismiss the affirmative defense and the store resisted. Understandably, the store did not want to be on the hook for damages caused by the criminal; not only did it have no control over the criminal, but it was a victim of the criminal too. The trial court denied Welch s motion, and held that the store was entitled to the allocation. The Supreme Court accepted interlocutory direct review of decision, and reversed. Continued on Page 2 Editor: A. Grant Lingg T F Editor: Jody K. Reich T F
2 Tegman Update From Page 1 DEFENSE NEWS Editors A. Grant Lingg Forsberg & Umlauf, P.S Suite Fifth Ave Seattle, WA Alfred Frank Bowen III The Gilroy Law Firm, PC Ste SW Beveland Tigard, WA William L. Cameron Lee Smart, P.S., Inc One Convention Place 701 Pike Street Seattle, WA Nathan L. Furman Forsberg & Umlauf, P.S Ste Fifth Ave Seattle, WA Melissa Kay Habeck Forsberg & Umlauf Suite Fifth Ave Seattle, WA Scott Harrington Husbands Patterson Buchanan Fobes Leitch & Kalzer Suite Third Ave Seattle, WA Carol Sue Janes Bennett Bigelow Leedom, P.S Suite Seventh Ave Seattle, WA Marc A. Johnston Hiefield Foster and Glascock SW Macadam Suite 300 Portland, OR Laurie D. Kohli Porter, Kohli & LeMaster, P.S Suite Fifth Ave Seattle, WA Bert W. Markovic Schwabe Williamson & Wyatt, P.C Suite th Ave Seattle, WA The Defense News is published bi-monthly by the Washington Defense Trial Lawyers, c/o WDTL, 800 5th Ave., Suite 4141, Seattle, WA All rights reserved. Reproduction of any material appearing herein without permission is prohibited. SUBSCRIPTION: Included in dues of all active members. EDITORIAL POLICY: Defense News is edited for members of the Washington Defense Trial Lawyers. Publishing and editorial decisions are based on the editors judgment of the quality of the writing, the timeliness of the article, and the potential interest to Defense News readers. The views expressed in the Defense News are those of the authors and may not reflect the official policy or position of WDTL or Defense News. SUBMISSIONS: All submissions must be typewritten, double-spaced (including citations). Include with the article an electronic format either by or disk. Articles may be submitted to or ADVERTISING: All advertising inquiries should be directed to: Kristin Lewis, 800 5th Ave., Suite 4141, Seattle, WA 98104, (206) or Defense News does not screen its advertisers/advertisements and does not vouch for the quality of the services offered for sale herein. 2 Editorial Board Jody K. Reich Dethlefs Sparwasser, PLLC Suite Second Ave. Edmonds, WA Michelle Menely Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim LLP Suite University St Seattle, WA Peter E. Meyers Durham Meyers Jeffers PLLC Suite B 5413 Meridian Ave Seattle, WA Katrina Elsa Mulligan Stafford Frey Cooper Ste Union St Seattle, WA Stacy J. Plotkin George W. McLean, Jr & Assoc Suite Olive Way Seattle, WA statefarm.com Aaron Paul Riensche Ogden Murphy Wallace PLLC Ste th Ave Seattle, WA Jeremy H. Rogers Forsberg & Umlauf, P.S Suite Fifth Avenue Seattle, WA Michael H. Runyan Lane Powell PC Suite Fifth Avenue Seattle, WA Margaret Sundberg P.O. Box Seattle, WA Lydia A. Zakhari Gordon Thomas Honeywell Malanca Peter Ste Pacific Ave Tacoma, WA It held that the definition of fault found in RCW unambiguously included negligent and reckless acts and omissions, but excluded intentional acts and omissions. Because intentional torts do not constitute fault under the statute, the store was not entitled to an allocation of fault to the intentional tortfeasor under RCW Id. at 634 (...the Legislature did not intend an entity who commits an intentional tort to be considered at fault for purposes of RCW ). The Court of Appeals in Tegman read Welch s effect to be that, if the plaintiff chose to proceed against only the negligent actor, and omitted filing suit against the intentional tortfeasor, the negligent actor would be liable for the entire harm sustained by the plaintiff. See Tegman, 107 Wn. App. at 883 ( That joint liability by the three negligent tortfeasors was the correct result is indicated by the result in Welch, which left [the store] exposed to liability for the entire damage sustained by the plaintiff ). Late Spring 2010 Continued on Next Page
3 Tegman Update From Page 2 From that reading of Welch, the Court of Appeals in Tegman found no reversible error in the trial court s decision not to segregate the compensatory damages caused by the negligent tortfeasors from those caused by the intentional ones. The court found that, at most, the way judgment was entered may have skewed the percentages of fault allocated, but that it made no significant difference in light of the negligent actors broad liability for the entire harm. The Supreme Court accepted review, and reversed: We hold that under RCW the damages resulting from negligence must be segregated from those resulting from intentional acts, and the negligent defendants are jointly and severally liable only for the damages resulting from their negligence. Tegman, 150 Wn.2d at 105 (emphasis supplied). This was the only possible correct holding because the Legislature had sought to abolish joint and several liability in most situations. As the Court explained, this was shown by several decisions the Legislature made in drafting RCW 4.22, including the ultimate decision that when joint and several liability does apply, it applies only to the damages attributable to those against whom judgment is actually entered. As the Supreme Court noted, under this statutory scheme, even a fault free plaintiff may not be made whole by filing suit. Id. at 114 n. 7. The Court continued: Once the damages due to intentional acts or omissions are segregated, then, as to all remaining damages, i.e., those damages resulting from fault-based acts or omissions, all the negligent defendants causing those damages are jointly and severally liable. Id. at 115 (emphasis supplied). And: Segregating fault based damages from those caused by intentional acts or omissions should pose no great difficulty because similar allocations are already part of the statutory scheme. Continued on Page 5 WDTL STAFF Member Services David Penrose 4141 Agate Road Bellingham WA Phone: (206) Fax: (206) Accounting Jackie Mintz PO Box Seattle WA Phone: (206) Executive Director Kristin Lewis 800 Fifth Ave., Suite 4141 Seattle WA Phone: (206) Fax: (206) Late Spring
4 How Jurors Think: Using Both Reason and Emotion to Attack Damages By Andrea Blount, Ph.D. & George Hunter, Ph.D., Dodge Blount & Hunter, LLP Litigation Consulting Our legal system is built upon the belief that we, as intelligent and rational beings, can judge the facts of a case and reach the right conclusion. Juries are instructed to leave emotion out of their decision-making and base their verdicts solely on the evidence. What the founders of this system did not know, and could not have known at the time, is that it is nearly impossible for normal human beings to make decisions based only on reason and logic, yet this is what jurors are tasked with, particularly when it comes to considering damages. Not only is the separation of emotion from decision-making nearly impossible for people to do, it is abnormal. In fact, the only people who can completely factor out emotion in their thought processes are those who have serious brain injuries. Individuals with certain types of brain damage interrupting emotional cues (but who otherwise have normal IQ scores) are unable to make decisions at all. They cannot even make simple decisions like scheduling appointments because they are unable to decide what day or time would be ideal. Although they can reason and rationalize all the pros and cons of the decision, without the emotional cues to tip the scales in a certain direction, their decision-making is effectively paralyzed. Emotion is an essential element of making a decision. As we make complex decisions in our lives - whether they involve which house to buy, whom to vote for, or how to reach a verdict as a juror in a civil case - reason often collides with emotion. Research examining the 4 brains of people as they process information has shown that the ways we think and make decisions depends on how that information fits with what we already believe. When presented with information consistent with our attitudes, the areas of our brains responsible for logic and reason are most active. When everything fits, no real persuasion is occurring because a consistent belief already exists. The information is simply stored away to buttress this belief. When faced with information that conflicts with our existing beliefs, however, the mental process is entirely different. In this situation, the emotion-centered areas of the brain are the most active as we struggle to make sense of the information. Conflicting information lights up the emotionbased areas of the brain and overrides the areas focused on reason and logic. Just hearing inconsistent information rarely leads to persuasion. Instead, people will most often reinterpret the threatening information so it is perceived as consistent with their attitudes, performing unconscious mental gymnastics so they feel good about their conclusions. We have all heard about similar situations happening with jurors. Whenever we shake our heads and wonder how on earth a jury could possibly have reached that particular decision or awarded that much money when the facts so clearly point the other way, we have seen the collision of emotion and reason. Anytime we learn of a jury reasoning backwards to make the facts fit with the conclusions they had already drawn, we Late Spring 2010 have observed the power of emotion in decision-making. But that is not to say that emotion is irrational. It is rational for one to feel outrage toward abuse, corruption or hypocrisy. It is rational for one to feel grief at the loss of an innocent life or sympathy for one who has been seriously injured. It is rational to feel fear when one s life or well-being is in danger. Understanding how thought-based reason and emotional-reason work together so it can be used effectively gives litigators a strategic edge. A litigator s strategy should never be to rely only on reason, because that is not how jurors think. Plaintiff attorneys often make the mistake of relying too heavily on emotion-based reasoning, which is equally ineffective. Jurors know their task is to base decisions on facts and if they are not given the information supporting the emotional reaction, they get frustrated. Conversely, if a defense strategy ignores the emotional element of a case and relies too heavily on reason, much of the information the defense gives to jurors will not stick and may be distorted based on how that information is processed. Thus, the most persuasive approach is to combine the logical aspects of a case with emotion. This is done by presenting the information at trial in a way that fits with jurors logical and emotional mental frames. Setting the Frame Everyone has many mental frames, or cognitive structures, which are used to make sense of the world. Development of these frames begins in infancy as the neurological pathways in our brains organize the millions of Continued on Page 8
5 Tegman Update From Page 3 Id. at 116. In support of its statement above regarding similar allocations, the Supreme Court quoted with acceptance a law review article that stated: The unitary nature of the harm and the assignment of responsibility are two separate matters. When multiple proximate causes have been determined for a single injury, the trier of fact still must determine and apportion the responsibility based upon the varying degrees of culpability and causation among the actors. Id. at (citation omitted). The Court then reiterated that, while not the same as an apportionment of fault under RCW , a segregation of damages between negligent and intentional tortfeasors is similar, is feasible, and is required. The Tegman mandate was clear. Where there are both intentional and negligent tortfeasors who caused a plaintiff s damages, the first mandatory step is to segregate out the damages caused by the intentional tortfeasor. After those damages are segregated out, if there are multiple negligent parties, an allocation of fault is made under RCW One judgment is entered against the intentional tortfeasor for the damages caused by the intentional acts. And one judgment is entered against the negligent actor(s) for the portion of damages caused by the negligent acts. 1 Division One had interpreted Tegman s mandate precisely as outlined above as well. In September 2007, it decided Jane Doe v. The Corp. of President of Church of Jesus Christ of Latter-Day Saints, 141 Wn. App. 407 (2007). That case arose out of the sexual abuse of minors by their step-father. The church was advised of the situation by one of the victims, but failed to involve the authorities, and sexual abuse continued in the family. The victims sued both the abuser and the church. The jury returned substantial verdicts for the plaintiffs. It also segregated damages, separating out (1) damages caused by the intentional acts of the abuser; (2) damages caused by the intentional acts of the church; and (3) damages caused by the negligent acts of the church. Division One held that the segregation was appropriate. Supporting this determination it emphasized that the Tegman Court had held,...the damages resulting from negligence must be segregated from those resulting from intentional acts... Id. at 438 (quoting Tegman, 150 Wn.2d at Continued on Page 6 Late Spring
6 Tegman Update From Page 5 Rollins v. King County Metro Transit: In January 2009, Division One of the Court of Appeals revisited Tegman once again in Rollins v. King County Metro Transit, 148 Wn. App. 370, 199 P.3d 499 (2009). In September 2009, the Supreme Court denied review. The case arose out of an incident on a Saturday night in Columbia City. A large group of unruly teenagers boarded a long, articulated bus. In the back of the bus, out of view of the bus driver, some of the teenagers verbally harassed Plaintiffs Rollins, Hendershott and Umpig. 6 Hendershott talked back to the harasser. He was punched in the face. When the Plaintiffs stood up to get off the bus a larger physical assault by multiple people ensued. According to the witness descriptions, within 20 seconds of it starting, they were either pushed or dragged off the bus, where the physical assault continued. Rollins testified that her injuries healed within about a week. Hendershott testified that his injuries took four to five weeks to heal, and that most of them were inflicted after he was off of the bus. Late Spring 2010 The assailants were never apprehended, and Plaintiffs sued Metro only. The case was tried. Metro asked for a Tegman instruction. Specifically, Metro requested that the jury be required to first determine the total damages and second to segregate out those damages, if any, that were caused by Metro from those that were caused by the intentional tortfeasors. The trial court rejected this request, instead instructing the jury that in order to prevail, Plaintiffs had to prove that Metro was negligent, including that Metro proximately caused Plaintiffs injuries. The trial court also instructed that there may be more than one proximate cause of an injury, and that Metro could only prevail if the sole proximate cause was some cause other than Metro. Finally, the trial court instructed: In calculating a damage award, you must not include any damages that were caused by acts of the unknown assailants and not proximately caused by negligence of the defendant. Any damages caused solely by the unknown assailants and not proximately caused by the negligence of defendant King County must be segregated from and not made a part of any damage award against King County. Id. at 379. The jury found in Rollins favor in the amount of $138,520 and in Hendershott s favor in the amount of $127,196. Metro appealed. On the segregation of damages issue, the Court of Appeals focused its analysis on Welch, pointing out that in that case, the Supreme Court had ruled that an allocation of fault to an Continued on Page 9
7 Social Media & The Workplace By Geoffrey M. Boodell, Forsberg & Umlauf, P.S. 1 What s All The Twitter About? For many of us, it is hard to remember a time when our waking hours did not consist of surfing the Internet, sifting through an endless stream of s, hearing the alltoo-familiar hum of cell phones and PDAs, and being able to remotely access our office desktops via laptops and other electronic devices. Now we have another resource (or curse) to add to the mix: social media. The phenomenal growth of social media over the past few years is altering the way people communicate, share ideas, and disseminate information. Social media - characterized by accessibility, interactivity, and technology - includes blogs, wikis (interlinked collaborative web sites), photo-sharing sites, and Internet forums, and extends to social networking platforms like MySpace and Facebook. In addition to access via computers, many social media sites are accessible using mobile phone-based applications, or, like Twitter, through mobile phone SMS messaging. This allows for immediate, and often public, broadcasting of users opinions or conduct. The public has turned to these information outlets with surprising speed, and current social media statistics are staggering: Americans spent 73 percent more time on social networking sites in the past year 2 People can create their own personal brand and connect with hundreds, thousands, and sometimes even millions of people who visit the Internet on a daily basis. With Twitter, for example, a person can offer almost instantaneous commentary on the news of the day, whether it s personal, professional, communal, or political, all with a couple of keystrokes and without any filter. In conjunction with social networking sites, employees (and seemingly everyone else) have taken to blogging to record their thoughts, impressions, observations, and opinions on webpages that can be accessed from virtually anywhere in the world. This enhanced world of connectivity is rapidly blurring the lines between professional and private lives, with profound consequences for employers. It does not take much imagination to conclude that a significant amount of the daily social media activity takes place within the workplace, leading to questions aplenty, including: Should employers care or monitor what their employees are doing or saying on social media sites? And should employers Continued on Page 13 Facebook has more than 400 million active users 3 20 hours of video are uploaded to YouTube every minute billion s are sent a day billion SMS texts are sent a day 6 50 Million tweets a day are sent via Twitter 7 More than 3 billion photos are uploaded to Facebook each month 8 Over the last several years, social networking websites like Facebook, MySpace, LinkedIn, and Twitter have evolved to the point where most employees use at least one, if not several, of them throughout each day. Social networking sites provide an easily accessible medium for individuals to stay in contact with friends, colleagues, clients, prospective clients, and the public at large. Late Spring
8 How Jurors Think From Page 4 bits of information we process every day. These neurological pathways form the physical basis for everything we experience throughout our lives including objects (e.g., dog, pie and car) and concepts (e.g., safety, trust and love). When frames are encountered together their structural networks connect so that when one frame is triggered it automatically actives related frames. For example, if apple pie and grandmother were often experienced together in your childhood (i.e., your grandmother made an excellent apple pie), smelling an apple pie decades later can still trigger thoughts of your grandmother and evoke emotional associations as well. This process happens instantly, unconsciously and with everything we encounter. Cognitive scientists and psychologists have known about the power of cognitive frames, and advertisers have been making money off of it, for years. Commercials are designed to trigger our mental frames. Snuggle fabric softener, for example, uses a teddy bear in its advertising campaign. Why? The image of a teddy bear fits a universal frame signaling comfort and security. If we think, even unconsciously, that Snuggle can comfort us, or help us feel more secure, we are more likely to buy it. Without a doubt, advertisers use frames to influence how we perceive their products. The advertisers who make the best use of our mental framework sell more products; they win the battle for the marketplace. So, what do apple pies, grandmothers, and teddy bears have to do with trial strategy and attacking plaintiffs damage arguments? The battle for control of the story in a trial is, at its root, a battle for control of how each side s case fits into jurors mental framework. If you want to win the battle, your story has to do at least two main things: (1) it has to make sense within jurors existing framework and (2) it must be distinctly different from your opponent s story. Making Damages Part of the Defense Story Every time we hear someone say, Ah, that makes sense it is because it fits within his or her existing frameworks; it is a familiar narrative. If your case story does not make sense within a familiar narrative jurors will struggle to understand the point of your case, which rarely (if ever) results in the desired outcome. Because most civil trials are about the plaintiff seeking recovery for an alleged injury, that injury is always part of the story for both sides but its role in the story can vary dramatically. The role of the injury, and damages, in the plaintiff s story can be quite obvious, emphasizing the functional aspect of the injury, sympathy for the plaintiff or anger toward the defendant or some combination of all three. We often interview jurors following civil trial verdicts to learn what mattered most to them as they were making decisions in a case. Jurors commonly complain that plaintiff attorneys make damages and sympathy the central aspect of their case story without clarifying exactly what the defendant did wrong. We have yet to learn of a trial where this strategy, in absence of a strong liability story, was successful. Here is what one juror in a King County wrongful death suit told us after reaching a verdict for the defense: A good amount of the [plaintiff s] story focused on the personal aspects of how people got along with Tracy 1, how she was a good mother, how people felt when she died, and how her family was coping with her passing. While all of this testimony was very genuine, it provided no additional facts to the case. So, this to me was discounted as part of the story I needed to make a decision on the case. The defense has a wide range of options in how it may chose to incorporate damages into its story. Continued on Page 12 8 Late Spring 2010
9 Tegman Update From Page 6 intentional tortfeasor was not available under RCW , because the definition of fault found in RCW did not include intentional acts. The Court also stated that, though the intentional conduct was a proximate cause of injury in both Welch and in Rollins, no recovery was sought for those intentional injuries and there was no risk that the negligent defendant would be held liable for the criminals share of the damages. It briefly discussed Tegman, including acknowledging that negligent defendants are not jointly and severally liable for damages caused by intentional acts of others, but then distinguished it, stating that Tegman is about joint and several liability. On that rationale, and because Metro was the only defendant, the Court of Appeals found Tegman inapplicable. After also distinguishing Jane Doe and a similar federal district court case, the Court of Appeals found that the trial court had not abused its discretion, and upheld the instructions as a correct statement the law. Metro petitioned for Supreme Court review. The petition was denied in September, The take away in advising clients is that, while we all should still argue for segregation of damages when both intentional and negligent torts may have caused a plaintiff s damages because certainly there are strong and valid arguments to be made based upon Tegman, Jane Doe, and other cases the reality is that Rollins is not a good case for defendants. If Rollins is followed, the practical effect is that the exposure of a negligent defendant is very likely increased if the plaintiff chooses not to pursue the intentional tortfeasor through trial. 1 This mandate is not inconsistent with Welch. The Welch Court used of the term apportioning liability interchangeably with allocating fault. More precise use of these two distinct terms would have been preferable. However, from the context of the opinion, it appears clear that the Welch Court s ruling was only that a negligent actor cannot seek to have fault allocated to an intentional actor under RCW This is precisely how the Tegman Court interpreted the decision as well. Tegman, 150 Wn.2d at In its discussion of Tegman, Division One also quoted with approval an order by Federal District Court Judge Ricardo Martinez in R.K. v. Corp. of President of Church of Jesus Christ of Stronger Witnesses Sharper Themes Smarter Strategies Witness Preparation Jury Selection Focus Groups/Mock Trials Theme Development Dodge Blount & Hunter, LLP Litigation Consulting Latter Day Saints, No. C RSM (W.D. Wa. August 28, 2006), where Judge Martinez correctly explained However, Tegman clearly involved indivisible damages, and the court ordered segregation in spite of that fact. Jane Doe, 141 Wn. App. at Erin H. Hammond practices at Fain Anderson VanDerhoef, PLLC in Seattle, where she focuses on complex litigation, often involving health care claims. She also serves on WDTL s Board of Trustees Fifth Ave., Ste Seattle, WA Late Spring
10 Thank you to all of the WDTL member volunteers who helped at the annual Seattle University School of Law Speed Networking Event on March 24th. We couldn t have done it without you! Jillian Barron, Sebris Buston & James Michael Bolasina, Stafford Frey Cooper Amanda Butler, Keating, Bucklin & McCormack Matthew Wojcik, Mullins Law Group Michael Nicefaro, Office of the Attorney General Melissa Habeck, Forsberg & Umlauf Rebecca Larson, Davis Pearson, P.C. Daniel Ruttenberg, Perkins Coie Stacia Hoffman, Betts Patterson & Mines Heath Fox, Johnson, Graffe, Keay, Moniz & Wick, LLP Thomas B. Nedderman, Floyd, Pflueger & Ringer, P.S. Christopher Nye, Reed McClure 10 Late Spring 2010
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12 How Jurors Think From Page 8 One option for the defense would be to reframe the cause of the injury altogether. In a catastrophic injury case involving an independent contractor on a worksite, the defense might center the cause of the event on worker carelessness and rushing to finish the job because it was a holiday weekend. This narrative is a familiar story for jurors; it makes sense, and invokes jurors frames of personal responsibility and awareness of their own work habits. the waist down. Some things may be done to fix his bowels and enuresis, but he is going to have to live with it. That is the real tragedy of this. But, there was testimony that there is no reason he can t go to college. He speaks two languages; I mean I barely speak one. It is going to cost a lot of money to provide the care he needs, but it is hopeful in the sense that from neck up he is okay. He has the shunt, but he does not have any disabilities in his cognitive functioning. Be Distinctly Different In addition to telling a defense story that fits with jurors view of the world, a compelling and persuasive case story must also be distinctly different from the opponent s story. Here is why - do not think of an airplane. Try it. Can you do it? No one can because just the word airplane evokes a frame that is connected to Continued on Page 15 Another option for the defense is to reframe the severity of the injury. Across all types of tort cases, the amount of damages awarded is positively correlated with the severity of the injury. What matters most to jurors, however, is the extent of the functional impairment over the general physical injury. Jurors attend to the amount of functional harm and whether it can be undone or reduced. Thus, an effective strategy for the defense is to give jurors a reason to feel hopeful for the plaintiff, a reason to believe the plaintiff s situation is not all doom and gloom. The defense story can describe how the family has gotten stronger as a result of the events in question, or that physical therapy has made a difference, or that the plaintiff still does many of the things he used to do he just does them differently. Giving jurors hope for the plaintiff allows them to feel better about reaching a defense verdict, even when the plaintiff has serious physical impairments. Here is what one juror had to say about the plaintiff s injuries in an obstetric injury case in Skagit County, Washington after reaching a defense verdict: [The plaintiff] is going to have chronic and lifetime issues from 12 Late Spring 2010
13 Social Media From Page 7 implement policies and protocols relating to social media? The answer to both questions is yes. All employers, from big to small, need to address these questions head-on because one thing is sure: social media is here to stay. Employers who ignore or are otherwise apathetic to this phenomenon run the risk of finding themselves embroiled in expensive litigation and/or public relations nightmares resulting from their employees activities on these sites - regardless of whether their participation is on the job or during off-hours - in the context of employer liability with respect to defamation, intellectual property violations, and harassment and discrimination claims. Why Employers Should Care About Their Employees Social Media Use According to a recent survey, 60 percent of business executives believe that they have a right to know how employees portray themselves and their organizations in online social networks. 9 However, employees disagree, with more than half (53 percent) saying their social networking pages are not an employer s concern. 10 This fact is especially true amongst younger workers, with 63 percent of year-old respondents stating employers have no business monitoring their online activity. 11 With the explosive growth of online social networks, such as Facebook and Twitter, rapidly blurring the lines between professional and private lives, these virtual communities have increased the potential of reputational risk for many organizations and their brands, said Sharon Allen, chairman of the board, Deloitte LLP. While the decision to post videos, pictures, thoughts, experiences and observations is personal, a single act can create far reaching ethical consequences for individuals as well as employers. Therefore, it is important for executives to be mindful of the implications of this connected world and to elevate the discussion about the risks associated with it to the highest levels of leadership. 12 That said, employees appear to have a clear understanding of the risks involved in using online social networks, as 74 percent of respondents believe they make it easier to damage a company s reputation. 13 One need not look far to find examples of companies reputations being sullied by way of social media. By now, most of us have seen the video of the two infamous Domino s employees (now former employees) playing hide the body excretion in the food. The video was uploaded to YouTube and before Domino s could blink, it was shared by millions of viewers, negatively impacting Domino s public image. Similarly, in a moment of David v. Goliath glory, a United Airlines passenger named David Carroll became an interesting thorn in the side of United s marketing department. During a United flight, baggage handlers damaged Carroll s guitar, valued at $3, After nine months of red tape and an ultimately denied claim for damages, Carroll, a member of the Canadian folk band Sons of Maxwell, produced a revenge video about the incident that went viral on YouTube and beyond. 14 As of the date of this article, the revenge video has been viewed over 8 million times and has generated over 25 million comments. And how about this one: an Internet site that posts a picture of a cute little dog named Toot together with a story about a tragic accident where a Sears delivery truck runs over and kills Toot. It also includes details about how a Sears representative apologized, but then went on to tell the distraught pet owners that it was not the INDEPENDENT MEDICAL EVALUATIONS & CHART REVIEWS The MACHAON team makes your job easier: Scheduling of IMEs when you need them. Communication with the patient or their legal representative to arrange a convenient date and time, decreasing the occurrence of no shows Recruiting the appropriate Physician specialties for your exams. Quality Assurance of reports to make sure all your questions are answered. We will, at your request, arrange Transportation, Interpreters, and Diagnostic tests. A Classic Return To Service MACHAON.org MACHAON Medical Evaluations, Inc ~ Toll Free ~ Fax Continued on Page 14 Late Spring
14 Social Media From Page 13 delivery driver s fault. He tells them this not just once, but on two separate occasions. And all of this played out on a website called...you guessed it: SearsKilledMyDog.com. Despite these widely publicized nightmares, only a scant 17 percent of business executives surveyed say they have programs in place to monitor and mitigate the possible reputational risks related to the use of social networks. 15 Moreover, 69 percent of companies recently surveyed indicated that they did not have a written social media policy. 16 Such approaches to employees online conduct, combined with the ever-increasing presence of social media, create a significant liability risk for employers. Why Employers Should Consider Adopting a Social Media Policy Although communications through blogs, tweets and posts are in many ways no different than traditional forms of communication, an employer s current policies may not sufficiently address the potential issues social media communications raise. In fact, most corporate communications and electronic communications policies fail to address the types of electronic communications that are becoming increasingly popular. Therefore, it is important for companies to not only make their employees aware that their policies on anti-harassment, ethics, privacy and company loyalty extend to all forms of communication, including social media communications, but to also create a separate written policy specifically designed to deal with the unique nature of social media communications. Ignoring the need for responsible guidelines can impede an organization s ability to protect itself, while at the same time hampering efforts to effectively compete in the marketplace. As Forbes.com recently noted about the urgency to establish such policies,... if you think [social media guidelines] don t apply to you, you are probably on the endangered species list. 17 Social media communications policies need to be specifically tailored to a company s business and clearly assert the company s position with respect to their employees use of social media websites both at work and at home. Elements of an effective social networking policy should include the following. Clear statements that other employee policies and their existing obligations apply to all communications, including those made on social networking sites, whether such communications are posted during personal time at work, or at home. For example, comments that would otherwise be inappropriate because they are considered insubordinate, constitute harassment, or result in a poisoned work place, also should not be posted on social networking sites. Continued on Page Late Spring 2010
15 How Jurors Think From Page 12 images, knowledge and personal experiences whether they be positive or negative. Even negating the word, i.e., do not think of an airplane, triggers the frame. The salient lesson to be taken from this is that when you are presenting your case do not use your opponent s language. Because plaintiff s have the advantage of going first, they have the opportunity to frame the story first. The temptation for defense attorneys is often to pick up the frame where the plaintiff left off and refuting the plaintiff s case by saying something like, Despite what my opponent tells you, this case is not about... Even though this strategy may be logical, it still serves to evoke and therefore strengthen the frame you are trying to combat. The goal is to begin by establishing your own frames through narrative before attempting to negate the plaintiff s arguments. Do not help your opponent by triggering their frames - create your own. The same concept applies to damages. Even the term, damages benefits the plaintiff because it elicits images of harm or injury. Instead of accepting this frame, change it by using the term award to invoke associations with a prize or reward. Jurors are much less likely to want to reward someone for filing a lawsuit as they are to fix damage; it is a subtle but important distinction in language and frames. Countering Plaintiff s Emotional Appeals Often, the plaintiff s goal is to persuade jurors by eliciting emotions of sympathy so they will want to help the plaintiff or anger so they will want to punish the defendant. The reflex for many defense attorneys is to remind jurors that their job is not to be sympathetic, but by negating the plaintiff s frame (sympathy). This reminder functions the same way as telling someone not to think of an airplane. Instead, provide a distinctly different emotional frame. Countering the plaintiff s emotional arguments with only facts and reason will not work; it did not work for Al Gore in the 2004 presidential election and it does not work in a courtroom. The most effective strategy is to identify the aspect of your story that resonates with everyday life and familiar narratives. For example, a common way plaintiffs elicit strong emotional reactions in jurors is to trigger jurors frame of a just world - the essential belief that good things happen to good people and bad things happen to bad people. The persuasive goal for the plaintiff is to convince the jury that the plaintiff is (a) a good person who (b) did not deserve this bad thing while (c) portraying the defendant as a bad person who should be punished. By understanding and countering the just world frame, defense counsel has at least three options to counter plaintiff s emotional appeals by reframing jurors view of the plaintiff, the injury, or the defendant. First, let us consider ways of reframing jurors view of the plaintiff. The most sympathetic and compelling plaintiff is a person who was seriously injured through absolutely no fault of his or her own, but this is rarely the reality. In most situations, jurors are eager to learn more about the plaintiff and whether he or she did anything to contribute to the alleged injury. Personal responsibility is a powerful value in American society and the personal responsibility frame is connected to the just world belief because we reason that if we are good people and act in good ways by taking responsibility for our actions then bad things will not happen to us. Continued on Page 17 Late Spring
16 Social Media From Page 14 Confirm that social networking discussions must not disclose confidential proprietary or business information belonging to the employer, its customers, or clients, or disclose private information about co-workers. Clear notice that the employer has the right to manage its public image. Employees should be advised to ensure that they have permission from the employer s management before publishing any information about the employer, including but not limited to information about current or potential employees, clients, customers, or competitors. Guidance that employees should use disclaimer statements to avoid inadvertently attributing their personal views to the employer. Employees who publish information and/or opinions on the internet are creating a public image and may, by extension, create a public image of their employer. To avoid such a result, employees should be encouraged to make it clear, by using a disclaimer statement, that any views expressed are the employee s alone, and do not represent the views of the employer. Because comments posted on social networking sites can spread virally, are searchable, and stay online even if the original posting is removed, it is even more important that employees use caution and good judgment when posting comments or information on social networking sites that can be identified or associated with the employer. Statements that social networking sites are not appropriate forums to engage in differences of opinion with respect to work-related issues or criticism of management or co-workers (constructive or not), or address concerns regarding the performance or competence of employees. Clear prohibition that employees must not post comments that are defamatory to the employer, other employees, or clients, customers, or competitors. Reminder that violation of the policy may result in disciplinary action, up to and including termination. When implementing a social media communications policy, a company should provide training to their employees on the policy and have their employees acknowledge their understanding of the policy. Additionally, employers should consider having someone monitor the various social media websites for postings about the company on a regular basis. Importantly, before implementing any new employment policies, including social media communications policies, companies should first consult with legal counsel to ensure that the policy adequately protects the company s interests and complies with both state and Federal laws. 1 Geoff represents employers in all aspects of labor and employment law and currently chairs the Employment Practices Group at Forsberg & Umlauf, P.S., a Seattle-based litigation defense firm. 2 The Online Global Media Landscape: Identifying Opportunities in a Challenging Market, The Nielsen Company, April Id Social Networking and Reputational Risk in the Workplace, Deloitte LLP 2009 Ethics and Workplace Survey Results. 10 Id. 11 Id. 12 Id. 13 Id Social Networking and Reputational Risk in the Workplace, Deloitte LLP 2009 Ethics and Workplace Survey Results. 16 Social Media: Embracing the Opportunities, Averting the Risks, Russell Herder and Ethos Business Law, August Ross, Joshua-Michelle. A Corporate Guide for Social Media. O Reilly Insights on Forbes.com, June 30, Late Spring 2010
17 How Jurors Think From Page 15 Thus, in jurors minds, if the plaintiff did something to cause this injury then the jurors would be much less likely to suffer a similar fate themselves. Jurors readily place responsibility on plaintiffs because it actually serves to relieve them of the fear or anxiety that the same thing could happen to them; they feel more secure in the world and have less need to take action to make things right again. This is exactly why women are more critical of rape victims than men are; if the victim did something to deserve the assault (e.g., by drinking too much or wearing something provocative) then they feel safer and more in control of their fate. Consider a pharmaceutical product liability case in which the plaintiff, a sweet elementary school teacher, had a stroke after taking an over-the-counter cold medication which did not include any warnings about the risk of stroke despite some evidence to the contrary. No one wants to believe that they could potentially die by taking a pill available at any grocery or drug store; that is scary. To help relieve the jurors emotional reaction to a case like this, the defense can reframe the helpless and innocent portrayal of the plaintiff by framing her as someone who has not always taken good care of her health and has a pattern of poor decision making. For example, the defense could describe the plaintiff s decision to not seek medical treatment for recurring migraine headaches, for choosing to smoke and increase her risk of stroke, and her habit of not thoroughly reading product warnings. If jurors can put responsibility on the plaintiff for not taking preventative action, then they feel less sympathy and less anxious that this could happen to anyone. In addition to reframing the plaintiff s role in events, the defense can also reframe jurors understanding of the injury. In the example provided above, the defense could also neutralize jurors potential anger at the pharmaceutical company by minimizing the extent of injury resulting from the stroke. Perhaps this plaintiff has not returned to work, but demonstrate that it was her choice not to return to work because despite limited physical impairment she has maintained her... a common way plaintiffs elicit strong emotional reactions is to trigger jurors frame a just world - the essential belief that good things happen to good people and bad things happen to bad people. communication and cognitive abilities. Thus, the jurors have every reason to be hopeful that this plaintiff enjoys good quality of life and is able to do nearly everything she used to do. Finally, the defense should always consider how it presents the defendant as a character in the story because it is easier for jurors to hate a faceless villain. Think of the common henchmen in movies and television: storm troopers in Star Wars, ninjas in children s cartoons or bandits in cowboy movies. These henchmen are faceless because it is much easier for the audience to cheer for the heroes if the heroes are not shown attacking other human beings. The same applies in court. The plaintiff will have a much harder time playing the role of the justice-seeking hero and jurors will have considerably more difficulty punishing a defendant that has a human face. Find some aspect of the defendant s story that will make sense to jurors, even (and perhaps especially) when the defendant is a large corporation. If the defendant is a large pharmaceutical company in a product liability case, make the researcher and developer of the medication part of the story. If it is a patent case, talk about the inventors. In a medical malpractice case, have the doctor talk about why she went into medicine, what it means to her and how much she cares about her patients. The more human defendants are, the more difficult it is to vilify them. Providing Context through Alternative Damages One of the biggest questions defense counsel address in shaping their trial strategy is whether, and how, to provide an alternative damage figure. When there is not much of a liability defense or if liability has been admitted, the trial then becomes all about arguing for an alternative damage amount. When there is a liability defense to argue, however, many counsel are concerned that providing an alternative damage amount will backfire by decreasing the defense s credibility or appearing as if the defendant accepts some responsibility. In either situation, it is almost Continued on Page 18 Late Spring
18 How Jurors Think From Page 17 always a smart strategy to provide some alternative to the plaintiff s damage amount, whether or not it is a specific number. It is, after all, part of the story and it can provide an important part of the context jurors will need to reach a decision. It is quite challenging, if not impossible, to put a value on something without understanding the context. How, for example, do you determine the value of a house without knowing the value of similar houses nearby? How do you determine the value of a product without knowing the cost incurred to make that product or what similar products cost? The same is true for jurors in a civil case: How do they determine an appropriate amount of damages if they have not heard both sides of the argument? This context can be presented at different points in the trial. During jury selection, ask whether anyone would assume the defense is guilty if they present evidence on or make an argument about damages. In opening statements, do not offer an alternative damage amount but help jurors in their job as fact finder by telling them what to look for and what questions to ask along the way. Challenge the plaintiff s numbers through rigorous cross examination and/or presenting your own damage expert. When possible, include evidence that contradicts the plaintiff s alleged injury such as MySpace photos of a supposedly traumatized victim partying or surveillance video showing that the leg injury has not impacted mobility as much as claimed. During jury selection, ask whether anyone would assume the defense is guilty if they present evidence on or make an argument about damages. One of the most effective ways of including an alternative damage amount into the defense story is to provide an anchor attached to something concrete that would be meaningful to the plaintiff. For example, we know of one defense attorney in Washington who regularly addresses alternative damage amounts in her closing arguments by connecting an amount to some aspect of the plaintiff s life such as mortgage payments or a commemorative bench. One might think that jurors would perceive this approach as condescending, and plaintiff s attorneys certainly do not like it, but this approach makes sense to jurors because it fits with their personal experiences. When jurors think about money making a difference in their life, they most often think about money to pay off their house or put their children through school. Here is what one juror had to say about this defense attorney s approach to damages in a wrongful death suit in Pierce County, Washington involving a small child: [The plaintiff] even mentioning five million dollars was ridiculous. People need to be fiscally responsible with pain and suffering. If there was actually negligence, asking for funeral costs or therapy costs would not have been extraordinary at all. The defense s suggestion of a college fund, mortgage payments - those were more reasonable. But I think the plaintiff was trying to equate your level of sympathy to a dollar amount. It seemed like he was saying, If you don t give X number dollars, then you don t feel sorry enough and are not acknowledging her grief. That is how it came across in the closings. In this case, the defense was moderately confident in a liability verdict but was also concerned about the impact of sympathy on jurors decision making. Without belittling the plaintiff s grief over the loss of their child, this attorney respectfully and sincerely suggested that helping the family by giving them money to start a college fund in their daughter s name or paying off their house would make a difference and it would have been a tiny fraction of the plaintiff s request for $5 million. In this case, however, the jury decided the defendant was not at fault. Attacking Damages: The Bottom Line In civil defense, effectively attacking plaintiff s damages means much more than deciding whether to suggest an alternative damage amount. Jurors attend closely to the facts of a case, but what determines the decisions they make is how they interpret those facts and shape them into a case story that makes sense. This mental process cannot happen without the interaction of reason and emotion. The more defense counsel attend to how jurors Continued on Page Late Spring 2010
19 Welcome New Members WDTL welcomes the following members who have recently joined our organization. A big THANK YOU to our members who referred these individuals to WDTL. Vasudev N. Addanki Betts Patterson & Mines Referred by Joseph D. Hampton Vivienne A. Alpaugh Allstate Staff Counsel Referred by Anthony Vidlak Geoffrey M. Boodell Forsberg & Umlauf, P.S. Katie D. Buxman Smith Freed & Eberhard P.C. Referred by M. Robert F. Smith Danielle M. Evans Reed McClure Referred by Marilee Erickson Ryan William Gunn Referred by Dan Keefe Nigel S. Malden Nigel Malden Law, LLC Referred by Edward S. Winskill J. Scott Miller Law Offices of J. Scott Miller, PLLC Amy F. Miller Lee Smart, P.S., Inc. Referred by Miranda Aye John F. Salmon Pierce County Prosecuting Attorney s Office Referred by Linda Gallagher Sarah Louise Visbeek Law Student - Seattle University William H. Walsh Corr Cronin Michelson Baumgardner & Preece Late Spring
20 Call for Auction Items Fundraiser for WDTL Convention Speakers The Washington Defense Trial Lawyers (www.wdtl.org) has announced that the organization is seeking auction items for its First Annual Auction for the Annual Convention Speaker Fundraiser which will be held on Saturday, July 10, 2010 at Suncadia Resort. WDTL is accepting items for the event s live and silent auctions. All proceeds for the auction will go towards funding future convention speakers. For more information about auction item donations, Melissa Habeck at or call Melissa at The silent auction opens Saturday, July 9 at Noon and will close at 5 p.m. A live auction of choice items will be held Saturday evening during the convention dinner. Please support this event by donating i(see form on next page) tems such as gift baskets, vacation rentals, dinners, theater tickets, art work and recreational outings (such as golf) are sure to attract bidders. Weekend getaways are particularly popular. We thank you for your support. Business/Donor Name: Address: First Annual Convention Speaker Fundraiser City/State/Zip: Telephone: Item(s) Name and Description: Fax: Date: Saturday, July 10, 2010 Place: Suncadia Resort 3600 Suncadia Trail Cle Elum, WA Tel: (509) Retail value of item(s) $ Expiration date for services: Check one: Item enclosed Item shipped later Item to be delivered at Conference Late Spring 2010
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