1 Think Like a Plaintiffs Lawyer Wednesday, April 29, 2015 Presented By the IADC Trial Techniques and Tactics Committee Welcome! The Webinar will begin promptly at 12:00 pm CDT. Please read and follow the below instructions: For you information, this Webinar presentation is being recorded. If you have not already done so, please join the conference call. Mute your phone line. If you do not have a mute button or are on a cell phone, press *1 to mute your phone. If you are on a conference phone, please move all cellular or wireless devices away from the conference phone to avoid audio interference. If you have questions during the presentation, you may utilize the Q&A pod on the upper-right-hand side of your screen. You may type questions here and it will be sent to the presenter for response. If your question is not answered during the presentation, our presenter will answer questions at the end of the webinar. Visit the Files pod in the lower-right-hand corner of the screen if you would like to download a copy of this PowerPoint presentation.
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5 The Proposition: PERSONAL INJURY DEFENSE LAWYERS SHOULD THINK LIKE PLAINTIFFS PERSONAL INJURY LAWYERS
6 The Reptilian View 1. The reptile or reptile brain is a primitive, subcortical region of brain that houses survival instincts. 2. When the reptile brain senses danger it goes into survival mode to protect itself and the community. 3. The courtroom is a safety arena. 4. Damages enhance safety and decrease danger. 5. Jurors are the guardians of community safety. 6. Safety rule + danger = reptile is the core formula.
7 Elements of the Reptilian View: 1. Safety is always the priority. 2. Danger (hazard/risk) is never appropriate. 3. Protection is always top priority. 4. Reducing risk is always top priority. 5. Sooner is always better. 6. More is always better.
8 Principles (A Product Liability Case) 1. This product can cause injury or death to the user and members of the public. 2. The safety of the consumer, user, or public should be the primary consideration concerning the design and manufacture of this product.
9 3. A product manufacturer should never expose the user or the public to the unnecessary risk of harm. 4. A product manufacturer is in the best position to understand the risk of harm associated with it s product to the user or the public. 5. The product manufacturer should endeavor to eliminate the risk of harm to the user or the public associated with it s products. 6. Compliance with government regulations and standards is not enough.
10 Rules 1. Before designing a product, the manufacturer must review similar existing products, their features and their safety history. 2. Before putting a product on the market, the manufacturer must make sure it performs safely. 3. The potential hazards/risks of a product must be identified by the manufacturer. 4. A hazard/risk is anything that can cause personal injury or death. 5. A manufacturer must design out, guard against, or warn about the hazard or risk.
11 Rules 6. A manufacturer must analyze the post-sale performance of its product. It must understand the type and extent of injuries associated with the use of its product. 7. If a manufacturer learns that a product does not perform safely, it must change the product.
12 Principles and Rules can be Written for any Circumstance 1. Malpractice 2. Auto accident 3. Slip and fall 4. Amusement park 5. Athletic events
13 This Just In
15 Thoughts about Thinking
16 Draft Jury Instructions and Jury Questions at the Beginning of the Case
17 Use the Instructions and Questions to Write out the Plaintiff s Principles and Rules
18 Dealing with Principles and Rules 1. CONCEDE THE OBVIOUS: Safety is important. A manufacturer is in a better position. Compliance with regulation is not enough. Accident and injuries can happen. 2. RE-PHRASE THE PRINCIPLE OR RULE: No injury is acceptable.
19 Dealing with Principles and Rules 3. DISAGREE WITH THE PRINCIPLE WHERE APPROPRIATE: No is a good answer. I cannot agree is a good answer. Your statement is not correct is a good answer. The explanation of the No is the key. A well planned out, truthful, precise answer that reflects reality. Example: Design, Guard, Warn, and the Hunter s Knife.
20 Dealing with Principles and Rules 4. AVOID AGREEING TO ABSOLUTES Always Never Must Shall Should IT IS A SET-UP AND DOES NOT REFLECT REALITY. 5. Good for the Goose, Good for the Gander- Think of Your Own Principles and Rules
22 Think Like a Plaintiffs Lawyer Wednesday, April 29, 2015 Thank you for Participating! To access the PowerPoint presentation from this or any other IADC Webinar, visit our website under the Members Only Tab (you must be signed in) and click on Resources Past Webinar Materials, or contact Melisa Maisel at
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