CHAPTER 7 DEFENSE TRIAL STRATEGY

• Jurisdiction: United States
• Publication year: 2018

After completion of investigation, written discovery, oral depositions, and retention of necessary expert witnesses, the trial preparation part of the case begins. The adjuster should, at this stage, receive a detailed pretrial status and evaluation report prepared by the defense attorney for the adjuster and the client/insured. This report should include, at least:

• The trial date;

• The date of each mandatory settlement conference or mediation;

• A brief description of the facts;

• The plaintiff's theories of recovery (e.g., why the plaintiff thinks he or she is entitled to money from the defendant);

• The affirmative defenses;

• A description of the damages claimed;

• A listing of pretrial matters yet to be determined by the court, such as:

o Motions in limine to limit evidence that can be presented;

o Prelabeling of documents that will be offered into evidence;

o Witness lists; and

o Stipulations (agreements) with plaintiff's counsel to limit the need to present live evidence on issues not disputed;

o An indication as to which of those might be outcome determinative (for example, if a motion in limine is granted, preventing the plaintiff from putting on evidence of liability, the case may be won before it starts); and

o A description of any settlement negotiations that have taken place.

The adjuster should get the attorney's opinion on whether:

• Reserves need to be changed;

• The case should be tried;

• Mediation should be attempted;

• Any other form of alternate dispute resolution (ADR) should be attempted (such as arbitration); or

• Settlement negotiation should be instituted.

The defense attorney's response should include the settlement value, or range of values, he or she places on the case.

After reviewing the report, the adjuster should confer with the attorney to discuss strategy in depth. They should agree on the cost of a potential settlement versus that of an actual trial. If they decide that settlement should be attempted, the adjuster should give the attorney settlement authority within the agreed-upon range.

A. Pretrial Motions

1. Motions in Limine

The motion in limine is defense counsel's very best tool to confine the scope of inquiry at trial is a motion in limine that will narrow matters of relevance. One important aspect of the motion is to limit all references or evidence of punitive damages at trial until such time as the plaintiff makes a prima facie showing of entitlement to such relief. The motion should include a request that the plaintiff be restricted in the opening statement [and during trial in questions posed by plaintiffs' counsel] from making any reference to or providing a full factual discussion of the issue of punitive damages.^[1]

Defense counsel should also consider filing a motion in limine if there is any reasonable basis to ask the judge to delay reference to the punitive damages claim because of its weakness and the likelihood that it might be subject to a motion for a directed verdict.

In addition, the motion should include

a request that any evidence of other misconduct on the part of the defendant, including evidence of other lawsuits, be barred. Motions in limine may perhaps be a defense counsel's very best tool in confining the scope of inquiry at the time of trial to narrow matters of relevance.

One of the issues that repeatedly presents itself is the plaintiff's attempt to introduce pattern and practice evidence. Under this theory, the plaintiff will attempt to introduce evidence of other claims against the defendant that, although not necessarily similar to the claim in the case [about to be tried], nevertheless bolsters the plaintiff's case that the defendant is a horrendous entity worthy of punitive damages punishment. ^{[ 2 ]}

This attempt was quite successful in State Farm v. Campbell in the trial court, only to be overturned by the U.S. Supreme Court. The Supreme Court reversed the trial court's multi-million-dollar punitive damages award because, for one issue, the Supreme Court concluded that it was wrongful to take the case out of the jurisdiction of the locale where the case was tried and seek damages for conduct by State Farm in other states.

[When plaintiffs' counsel refuse to disclose] the identity and nature of the other claims they intend to try to put into evidence at trial, defense counsel should use a motion in limine to exclude evidence of other claims. [The basis for the motion can be] as a sanction for discovery abuse or to force the court to establish what the evidence of other activities can and cannot be used to prove at the time of trial [in accordance with State Farm v. Campbell]. ^{[ 3 ]}

Defense counsel must be ready, before trial begins, to present to the trial judge appropriate motions in limine and any other motion in limine that the facts of the case require to properly protect the defendant.

2. Motion to Bifurcate or Trifurcate

Before the trial begins, defense counsel should consider whether a motion to bifurcate or trifurcate the trial will assist in the defense of the client.

If the court orders the trial bifurcated, the jury first hears evidence on liability and the amount of actual damages [and does not hear about punitive damages].

If the jury finds liability exists for punitive damages, the same jury then hears evidence relevant only to the amount of punitive damages and makes its findings based on the evidence presented during both phases of the bifurcated trial. ^{[ 4 ]}

If liability is not found, the jury never hears evidence concerning punitive damages.

If the trial is trifurcated, the jury first decides liability, then compensatory damages, and then punitive damages.

Most courts have the power to order a bifurcated trial. Some states require bifurcation of the entire punitive damages claim, including liability and amount, ^{[ 5 ]}

to avoid plaintiffs' counsel bringing in evidence of malfeasance or willfulness during the basic issue of liability, so as not to poison the jury against the defendant and limit their initial deliberations to the issue of liability. Judges often prefer bifurcation because the trial may be easier and quicker since if the jury first finds no liability, the testimony about damages, including punitive damages, becomes irrelevant.

In the majority [of cases presented with a motion to bifurcate], only the amount of punitive damages is bifurcated. The ability to bifurcate the trial is important because it can block harmful evidence that may not be admissible on issues other than punitive damages [since the evidence relating to punitive damages may so prejudice the jury that it will affect the decision on liability]. It also promotes efficiency in that if the jury finds for the defendant on the liability question, the punitive aspects of the case need never be tried.

The basis of these motions is that the plaintiff's proof of compensatory damages does not involve evidence of defendant's aggravated conduct or, just as important, wealth. When presenting a motion to bifurcate, defense counsel should argue to the court that trying the punitive damages claim with the compensatory damages claim would introduce evidence that would unfairly prejudice the defendant in the jury's consideration of the basic liability and compensatory damages issues. ^{[ 6 ]}

Many defense lawyers dislike bifurcated proceedings because they believe bifurcation reduces the leverage of pro-defense jurors to secure a compromise in which liability is found but little or no punitive damages are awarded. In addition, if the second phase consists of nothing more than evidence of the defendant's finances and closing arguments, that may prove to be a formula for disaster, focusing the jury's attention on the large financial numbers. On the other hand, a unitary trial can have even more severe disadvantages for the defense. It is entirely consistent with the plaintiff's case to hammer away at the defendant's conduct and demand a severe punishment; conversely, it is virtually impossible to put on much of a defense against large punitives when liability is being contested, just as it would be difficult for a criminal defendant to address sentencing issues before guilt has been adjudicated. ^{[ 7 ]}

Defense counsel, in coordination with the defendant or defendant's management, must evaluate the pros and cons of bifurcation before a motion to bifurcate the trial is filed.

3. The Advantages of Filing Motions in Limine

By filing carefully reasoned and judicially supported motions in limine, the issues presented at trial will be narrowed. The narrowing of issues at trial [allows defense counsel and the jury to gain] a more thorough understanding of the plaintiff's trial strategy. Pretrial motions also are designed to make the plaintiff reveal as much as possible about the theory of the claim and the tactics plaintiffs' counsel will present as part of the attack against the defendant.

An effective pretrial motion strategy also may acquaint the defense team with nuances of the plaintiff's case [that were not visible during the discovery] process that ultimately can be helpful during the trial. ^{[ 8 ]}

4. Trial Briefs

When it becomes clear that the case will not settle and the punitive damages case must be tried, defense counsel must immediately thereafter begin preparation of a separate trial brief that, at least, will

be submitted solely on the punitive damages aspect. The trial brief should outline arguments supporting the delay of all statements from the plaintiff's attorney about punitive damages until the necessary evidence has been produced to justify placing the claim before the jury. It also should state the requirements to be fulfilled by the plaintiff before submitting arguments and before the court instructs the jury on the issue of punitive damages. ^{[ 9 ]}

Of course, in addition, a thorough trial brief should be prepared on the basic liability...