By Michael Hoenig - New York Law
Journal - July 11, 2016
In my June column1I specified some practical tips lawyers might
consider regarding trial preparation. For simplicity, that
column assumed the perspective of defending a major products
liability case. The instant column also offers practical "tips"
but the scene shifts forward from the defendant's trial
preparation to actually putting on the product liability defense
case itself. Before this trial phase, the plaintiff's lawyer has
presented his evidence. Now it is the product defendant's turn.
Because of space limitations here, we are going to skip details
about presenting expert testimony—a copious subject in itself
that involves lots of variables and depends on the expertise
involved. That topic merits its own discussion. Nevertheless,
there are plenty of other practical considerations besides
experts that warrant attention.
Presentation of the defendant's case in the modern products
liability trial is the major opportunity to set the record
straight and demonstrate to the jury that the plaintiff is not
entitled to recover. Until now the defendant's product has
probably been cast in a very poor light. Possibly, it has been
referred to as a device, product or instrumentality unfit for
use; one capable of unleashing sudden catastrophe upon an
unsuspecting user or bystander; a product woefully behind the
"state of the art;" one that could have been made safe for a
nominal amount of money, etc. Quite possibly, the defendant's
manuals, test reports, advertisements, email correspondence and
other records have been shown to the jury, out of context, and
with distorted emphasis. Perhaps some jurors have been
influenced to the point of tears by sympathy for a
catastrophically injured plaintiff.
Until this moment, defense counsel has attempted to limit the
plaintiff's proof, discredit the plaintiff's witnesses, raise
inconsistencies and elicit favorable points. He has tried to use
all his skills to keep the case manageable. Now, however, the
defense can tell its story; demonstrate the distortions;
convince the jury about the integrity and reasonable safety of
Most jurors view the commencement of the defense case with
anticipation. They expect to be given an answer. Counsel early
on urged them to keep an open mind. He promised them another
side of the story. Now is the time he is expected to deliver.
There is unusual attention focused upon the defense attorney,
and there is a sense of drama attached to the moment. How is
counsel to proceed?
No hard and fast rules exist. There is no magic formula for
success. The seeds of a defense victory must have been planted
earlier by preparation and hard work well before trial.
Counsel's personality, imagination, charm, preparation and sense
of organization and timing will influence the course of the
defense presentation. In discussion of the following thoughts,
no attempt has been made to set forth a guide or an exhaustive
As the plaintiff's
case-in-chief draws to a close, counsel should fully evaluate
what plaintiff has really proved. What has the jury really been
told? What have they seen? There may have been numerous
evidentiary disputes, speeches by plaintiff's counsel, arduous
examination and cross-examination of witnesses. Some, however,
may have been out of the jury's presence. There may have been
voluminous expert testimony and introduction of demonstrative
exhibits, but much of it may have been incomprehensible,
unimpressive, unconvincing or minimally relevant. Among the
questions counsel should ask himself are the following:
a. How has the defense been hurt?
b. What was plaintiff's trial plan? Did it succeed?
c. How effective was it?
d. What about the plaintiff's case requires response or
e. What were the vulnerable points of plaintiff's proof?
f. Were there inconsistencies among plaintiff's lay and expert
witnesses which should be exploited?
g. Were there witnesses plaintiff elected not to call? Why?
h. Has the plaintiff's theory, as reflected by the proof,
changed from that indicated in interrogatory answers, pre-trial
statement or expert depositions?
i. Are there gaps in the proof that need to be filled by the
j. What points appeared to impress the jurors or provoked
Other pertinent, self-reflective questions will readily come to
mind. By making this kind of evaluation, counsel can
appropriately refer to his own trial plan to determine what
needs to be modified, eliminated or supplemented. He will get a
better feel for the points which need emphasis by the defense.
Of course, counsel has at
this point already given great thought to what proof to put on.
In connection with the evaluation suggested in the preceding
section, counsel finalizes his plan. Naturally, he has kept his
client and witnesses informed of the progress of the trial and
the dates they must be present for final preparation and
testimony. By maintaining such contacts, counsel may have
obtained further input from his client or the defense experts.
It is helpful to have a defendant's expert, familiar with the
product, present throughout the trial. If this presents a
hardship, he should at least be present for plaintiff's expert
testimony to lend assistance.
In finalizing his plan, counsel should give due consideration to
logistics. Counsel should budget his available time properly so
that enough time is set aside for productive discussions with
his witnesses. Nothing is more frustrating to other members of
the defense team than a witness flying great distances to be
present several days before testifying, only to find that
counsel does not have time to meet with him until the morning he
is scheduled to testify. If counsel cannot meet with the
witness, it is helpful to have a trial assistant do so.
Remember, the start of the
defense case can be a rather dramatic moment, when juror
anticipation is high. Thus, counsel should consider putting on a
strong witness to present an effective, brief and hard-hitting
direct testimony. The witness' testimony should be logical,
orderly (though not necessarily chronological) and should build
toward some sort of climactic impact. If counsel uses brief,
clear and cogent questions the strong witness' testimony may
satisfy the jury's anticipation of drama.
In preparing his order of proof, counsel should consider
starting and ending with his strongest witnesses and call the
weaker ones in between. However, not all planning can be
implemented exactly as desired. Logistical problems can easily
set in when a key defense expert, for example, has been
unavoidably detained elsewhere because his testimony in another
trial has been prolonged. By keeping a cool head and considering
aspects like timing, counsel may find an approach that minimizes
the problem. For example, if it is well along in the court day,
counsel should ask for a recess for the rest of the day until
the witness can perhaps appear early the next day. If the
problem materializes late on a Thursday, counsel might consider
requesting a recess until after the weekend. Many judges will
understand that experts are involved in other cases and will
grant brief postponements so long as there is no abuse.
Assuming counsel is not presented with such a crisis, most
lawyers prefer that the strong witness should lead off. However,
no rigid rules control. Something in the plaintiff's case may be
so fresh in everyone's mind that it justifies treatment at the
outset. It may then be advantageous to put on an effective
witness with respect to the specific issue, though he is not the
strongest or "best." In such a situation, it is not the witness
who provides the drama but the effect of what he says on the
specific issue. Sometimes, the strong witness needs preliminary
foundation testimony. Counsel will then call the preliminary
witnesses at the outset but will try to keep their testimony
hard-hitting, short and sweet.
Sometimes, because of the complexity of the product, the jury
first needs to be properly introduced to it. This can be done
effectively by a witness familiar with its design and
construction even though trial counsel does not feel he is the
"best" or strongest testifier. The effectiveness of a witness to
project knowledge, honesty and sincerity on the issue is anyway
a rather subjective matter. Trial lawyers sometimes make up
their minds too quickly about a witness' abilities, a trait
probably resulting from the lawyer's need to make snap
decisions. Such impressions can be erroneous.
Excellent trial lawyers often say that they had reservations
about a particular witness' ability, only to later report that
the witness testified very well. Similarly, there has been
positive juror reaction (by interview after trial) to a witness
who some thought might be ineffective. The point to be made is
that the first witness should be a good witness—and
effective—even if not necessarily the "best." A good witness'
testimony can be made more effective by use of demonstrative
materials such as slides, blow-ups, models or the product
itself. However, finishing the case with a strong witness is
desirable to leave a positive impression with the jury. Such a
witness can also "clean up" some matters that require
Effective presentation of
the defense case often hinges upon counsel's instinctive ability
to properly time important developments. If something is
important for the jury to know and attention is required to
grasp the matter, it makes sense to put the evidence on in the
morning when many of the jurors are fresh and attentive. Counsel
should keep an eye on the clock. Many dramatic developments have
been dissipated because progress to a climax was interrupted by
a recess or because plaintiff's counsel was given overnight or a
weekend to prepare a countermeasure.
Timing also involves an instinctive appreciation of when counsel
is overdoing something, unduly prolonging it or not maintaining
interest. Sometimes, however, counsel has no choice but to
proceed because certain evidence must come in no matter how
undramatic it may be. Also, just because jurors may look
disinterested does not mean they are. They may just be
uncomfortable or temporarily distracted. They may be listening
casually. The evidence may later strike a responsive chord.
Timing is also a factor when a trial is lengthy. Many products
trials last weeks and even months. That is a long time for
jurors to be away from their jobs or other activities.
Understandably, jurors get "antsy," particularly after a lengthy
plaintiff's case. Counsel has to be sensitive to the "antsy"
problem and avoid creating a feeling by the jury that the
defense is stalling. Many an experienced trial attorney has
found it necessary for this reason to abbreviate the defense
testimony and even omit witnesses. Obviously, no general rules
can be fixed on this. However, counsel can go a long way toward
minimizing the problem by maintaining momentum. A hard-hitting,
brief, direct case can project a sense of movement. In such
cases an intensive or laborious cross-examination by plaintiff's
counsel can frequently be turned into a decided plus for the
defense. The jury may become irritated or annoyed at the
protracted nit-picking and repetition associated with a lengthy
Even a great defense witness starts to become less effective at
a certain point in time. Counsel should keep the timing and
momentum factors very much in mind.
Plaintiff's case will
often focus on a specific part or feature of a product which,
for a few dollars, could have been made or designed differently.
The attempt may be to portray that feature as a relatively
simple item to remedy. In projecting this image, plaintiff's
counsel will frequently disregard the other features of the
product or will take the criticized component out of context of
the entire product. The defense plays into the plaintiff's hands
if it fights the battle only along the lines demarcated by the
claimant. Merely refuting the plaintiff's experts on the
specific matters they chose to discuss just creates a "swearing
contest," pitting one expert against another. Such a contest is
likely to be decided for the plaintiff on grounds of sympathy,
especially if the experts' duel amounts to a kind of
However, if the defense tells its own story about the product,
describes its positive features, demonstrates its functions,
illustrates its advantages, familiarizes the jury with the
complex design or construction problems, shows that it complied
with standards, that it met or exceeded the "state of the art"
when it was built, and that it was "reasonably" safe, a valuable
theme will have been communicated. The defense will want to
project the defendant's confidence in the integrity of its
product and the reasons why this is justified. Through the
defense witnesses, the utility and features of the product can
be considered in their positive aspects.
In conveying the defense theme, the defense witnesses have to be
prepared to "own up" to the possibility that injuries might
occur during use of the product. They should particularly be
prepared to answer "loaded questions" on cross-examination. The
possibility that injury might occur does not make the product
"defective" or "unreasonably dangerous" or "unsafe." An element
of "reasonableness" must be projected in positive fashion to the
jury. If a product is a reasonably good one, the defendant,
counsel and independent experts will find quite enough to say
about its good features, and these ideas should be bound
together into a positive theme. Don't fight the case simply on
the plaintiff's lines. Tell a positive story.
As part of his theme, counsel will undoubtedly wish to show that
there exists no "defect" in the product. In addition, counsel
likely will wish to demonstrate that the injuries were not
caused by the feature complained of but by other causes not
attributable to the product. Sometimes, the plaintiff's own lack
of care makes him the author of his fate. Although the effect of
a plaintiff's negligent conduct upon strict tort liability is
sometimes unclear and may only diminish a recovery, a
plaintiff's negligence could nevertheless be most relevant on
the question of proximate causation. This issue can be a very
vital element in the defense theme.
1. M. Hoenig, "Some
Practical Tips on Trial Preparation," New York Law
Journal, June 13, 2016, p. 3.
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