Ghost of Pennzoil-Texaco: hidden risks of arguing alternative damages.
Defense Counsel Journal › Vol. 67 Nbr. 4, October 2000
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Ghost of Pennzoil-Texaco: hidden risks of arguing alternative damages.
Should the defense sponsor alternative damage numbers? There's no one answer because it depends on the strength of the defense case
IMAGINE this: The plaintiff's case has been presented to the jury, and the defense is under way. The defense trial team evaluates the shots it has taken and examines how well it can respond to the key liability issues. There is concern about exposure to a large verdict and the need to offer an alternative damage number. But what about the other side of the coin? Will that course undermine the liability case? After evaluation, the defense concludes it can safely critique the plaintiff's damage numbers without sponsoring an alternative for the jury to consider. It is going for a zero verdict. The defense has decided to work without a safety net, and yet it has made a reasoned decision, fully taking into account the risks and benefits of its chosen strategy. If this example sounds like fiction, it should. Because of the fear of another runaway Pennzoil-Texaco verdict, many defense counsel believe that not providing an alternative damage theory in a jury case is tantamount to malpractice. As a re...See the full content of this document
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