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Breaking it Down

Litigators must thoroughly explain to jurors all concepts regarding product liability in order to win big verdicts.

BY MARSHALL L. HENNINGTON AND MELISSA L. WHITSON

When presenting a product liability case to jurors, it is important to present a comprehensive array of information. There are many issues to consider regarding product liability and unfair business practices. Key points in the case investigation and preparation should be foresee ability, duty to warn, responsibility, burden of proof, malicious intent, oppression and disregard for consumers' well-being. It is important for litigators to fully explain these concepts in lay terms to jurors, in order for jurors to fully grasp the case dynamics and understand the argument.

Was the Problem Foreseeable?
     To begin with, jurors will want to know how long this problem or defect has existed and especially if there is no injury, why it is now an issue. Proof that an unfair or injurious practice has been going on for a long time will usually appeal to a juror's sense of justice. It will enhance the idea that the defendant has been "getting away with it" for far too long. Jurors need to have a reference point to gauge the enormity of the problem(s).
     It is also important to show that a pattern of misconduct by the manufacturer has emerged. Demonstrate that your case is not an isolated incident. Show that the company's culpable actions have been occurring (or a significant amount of time). Jurors are more likely to rule against a manufacturer if they understand that this was clearly not an accident or fluke but was a preconceived act intended to cover the company's bottom line, regardless of the potential danger it posed to individuals.
     For liability involving personal injuries, the law requires that the manufacturer foresee to some extent potential misuse of the product by the consumer. Consequently, the manufacturer must take precautions to minimize possible harm from misuse or abuse of its product. Plaintiffs' attorneys should explain such responsibilities, or lack thereof, to jury members. If jurors understand that manufacturers need to foresee potential misuse when designing, manufacturing or promoting a product, they will be less likely to blame consumers simply because they used the product.

Warning Labels
     Odds are that jurors will not be aware that guidelines exist concerning a manufacturer's duty to warn. Often jurors, especially if they are highly educated, will assume that common sense should lake on a bigger role than it actually does with consumers (e.g.. all consumers should be aware of certain inherent dangers).
     Generally speaking, jurors should know that providing a warning label for a product lakes little time but often makes a world of difference. Warning labels are often the safeguard against the defendants' strict liability. If a product does not have a warning label, drive this fact home. Manufacturers are accountable to the consumer. It is the duty of the attorney to get this point across to jurors.

A Manufacturer Has Responsibility To Provide Information About Its Products
     The big question jurors will wrestle with is: Whose responsibility is it to educate the consumer about the product?
     Often if jurors discover that consumers have access to the truth about a product, through items such as manuals, instructions or a Web site, then they believe it is the consumers' responsibility to know about all aspects of the product. However, deceptive packaging practices occur on a frequent basis. This contributes to the lack of information about the merits of a particular product. Therefore, if manufacturers do not provide this information to consumers, it is imperative that the jurors are told about this substandard, unethical practice and are reminded about the manufacturer's duty to warn. When a product lacks information, jurors often believe that the manufacturer consciously set out to defraud the consumer(s).

Prove the Consumer Lacked Information
     For unfair practice cases, you want to prove that nowhere on the product(s) do the manufacturers inform the consumers about the truth. To avoid any problems in this area, it is often better to try a case in which an unfair business practice is beyond the consumer's power of choice (e.g.. company has a monopoly on the product) and there is no way that the ordinary consumer will ever discover the truth. If this is not possible, at least demonstrate to the jury that the information is provided in such an obscure manner that the average person would have difficulty locating it and that this was done intentionally to deceive and defraud consumers. Jurors always want to know the truth.
     To demonstrate that this product is the exception, and not the rule, a price-and-product comparison with other companies should be provided. Along the same lines, if there is a standard for the product and the standard was breached, bring this to the jurors' attention, as well. Otherwise, they will tend to minimize the damages and assume that like companies operate in a similar manner.

If the Manufacturer Disregards Consumers Well-Being or Acts Maliciously, Assign Responsibility
     If an unfair practice or defective design intentionally targets or excludes a certain race, gender, class or age, demonstrate this to the jury. Jurors today are especially sensitive to discrimination, racial profiling or the possibility thereof. Proof, or even a reasonable suggestion, that a group is being discriminated against may have a significant influence on how jurors feel about your case.
     In addition, try to prove that the company was aware of the impact its defective or unfair product had on consumers and that it knowingly failed to warn or inform (tests are usually conducted on all products before going to market). As always, some juror will naively think that the manufacturer or company may not have realized what it was doing or that the product was not deliberately designed to cause any harm. To avoid this problem, provide proof of the manufacturers' prior knowledge and, if possible, show intent as well. Even without proof that the companies or manufacturers were aware, they can be liable for not warning or informing consumers. Jurors will need to be told that, whether a manufacturer or company was aware, it nevertheless had a duty to warn.
     It is often advisable to assess a cases' value before deciding to try it. This can be done by conducting a focus group or conducting a community attitude survey. This will result in a better understanding of the extent of the damages incurred and how typical jurors feel, think and react to the issues associated with your case, enabling you to strategically use such information to obtain a favorable verdict.
     In order to convince the jurors that someone is to blame for this unfair practice and that all consumers are the true victims, a plaintiffs' attorney must be accusatory when it is appropriate. Companies and manufacturers should be portrayed as the "bad guys." Most important, you want the jurors to identify with the plaintiff. Emphasize how each one of the jurors could easily be in the plaintiffs position. Nothing inspires people to demand action more than a threat to their own rights and pocketbooks.

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