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Every lawyer considering the prosecution of a product liability lawsuit must assess the claim’s overall strengths and weaknesses. A less-than-rigorous evaluation of a potential product liability claim, either upon initial intake or as the case progresses, is its own punishment. Almost every lawyer representing plaintiffs in product liability litigation can, in retrospect, pinpoint the overlooked fact or missing expert or technical hurdle that hindered the successful preparation and presentation of an otherwise promising claim. This article offers 10 questions designed to identify and define the strengths and weaknesses in a plaintiff’s product liability claim at the earliest possible stage. While prospective analysis can never match the visual acuity of hindsight, a rational and systematic appraisal of a claim’s chances of success at the threshold of litigation can reduce the likelihood that hindsight will only bring tears of regret to the lawyer’s eyes. Counting down from the least important to the most important, a prospective plaintiff’s attorney should answer the following 10 questions about his or her product liability claim: (10) ARE YOUR POCKETS DEEP ENOUGH? Forget what you have heard about the defendant having deep pockets. The question is: Are your pockets deep enough? Unlike medical malpractice litigation and most business disputes, lawsuits against product manufacturers almost always involve an out-of-state defendant with many employees, multiple offices and dispersed sources of documents and data. Most procedural rules do not allow a plaintiff to force the production of witnesses and documents in the jurisdiction where the case is filed, so the plaintiff will have to find the witnesses and documents where they reside. If you do not have a bank account capable of financing a product liability lawsuit, you should either associate with a co-counsel who does or direct the would-be client to another attorney. (9) IS THERE EVIDENCE OF WILLFUL CONDUCT? Notwithstanding popular misconceptions about corporate greed and intentional cover-ups, it is a rare product liability claim that involves misconduct sufficient to sustain punitive damages. Don’t let visions of punitive damages dance like sugarplums as you fantasize your way to a big payoff. Including a punitive damages claim in an initial complaint without the hard evidence necessary to support punitive damages in your jurisdiction is not likely to make the impression you might hope for. On the contrary, a premature punitive damages claim — especially in cases involving complex or highly technical products about which the plaintiff’s attorney is likely to know little — tells the defendant that the plaintiff’s attorney is a novice. (8) WILL THE JURY’S EXPERIENCE BE A FACTOR? Despite a jury selection process that often seems designed to weed out anyone who might actually have relevant knowledge or experience, jurors will always have greater knowledge of and experience with commonplace and pervasive products. The questions you should ask include: � Will the jury’s knowledge and experience with this product work for me or against me? � Will the jurors be able to hold this product in their hands? � Will they pass it around the room? � Will they demonstrate its use to each other in the jury room? The greater the jury’s ability to rely on its own observation and experience in determining the presence of a product defect, the clearer the evidence of product defect must be. (7) WILL JURISDICTIONAL VARIABLES BE A SIGNIFICANT INFLUENCE? Jurisdictional variables include the judge, the judge’s staff or clerks, the discovery magistrate (if any), local procedural rules, local substantive rules and the demographics of the local jury pool. Savvy lawyers try to find the most favorable jurisdiction in which to file a promising product liability claim. Often, however, the jurisdiction is fixed by the facts before the prospective client walks through the door. When this is the case, ignoring adverse jurisdictional variables is a principal cause of teary-eyed hindsight. If there is a significantly adverse jurisdictional variable that you cannot change, perhaps you should not take the case. (6) IS THE MANUFACTURER SOPHISTICATED OR SOPHOMORIC? Corporate sleuthing is so easy in today’s information age that there is no excuse for being uninformed about a target defendant. A lawyer contemplating a product liability claim should have sufficient information before filing suit to judge the manufacturer’s level of sophistication in areas of design, manufacture, safety and warnings. General Motors, for example, obviously is a sophisticated and experienced product liability defendant, and you can be sure that the General Motors of the world will field competent counsel, conduct thorough discovery, produce qualified experts and defend design choices. All these capabilities must be considered in deciding whether to pursue a particular claim. If, on the other hand, both the appearance of the product and information gleaned about the manufacturer suggest that plaintiff was injured by a product designed and sold without adequate knowledge of contemporaneous industry standards, the potential claim may take on added luster. (5) IS OPPOSING COUNSEL SAVVY OR SLIPSHOD? Except in cases where opposing counsel are identified prior to their appearance and answer in response to a complaint, assessing a claim in terms of defense counsel cannot be done until the engagement is already under way. Nonetheless, plaintiff’s counsel should always weigh the impact that competent (or less than competent) defense counsel can have on the outcome of any particular case. When the time comes to candidly assess the strengths and weaknesses of the claimant’s case, both the likelihood of prevailing on liability and the defendant’s potential damage exposure should be leavened by an unblinking assessment of opposing counsel. If necessary, research opposing counsel’s track record, and talk to other attorneys and judges, but do not fail to take this variable into account. (4) CAN THE NECESSARY PRODUCT KNOWLEDGE BE MASTERED? Another way to phrase this question is: How “expert” does your expert need to be? Over time, a practitioner who regularly handles product liability lawsuits can become the proverbial jack or jill of all trades. A little knowledge of metallurgy, a dash of physics, a touch of chemistry and a big dollop of human physiology will sustain many a lawyer pursuing design or manufacturing defect claims. In a few cases, the retained consultant (called an “expert” whether he or she is or not) is little more than an evidentiary pro forma — necessary only to avoid a directed verdict. More than one lawyer, however, has fatally overestimated his or her technical competence in understanding and � ultimately — explaining to a jury the nature of a product defect. Perversely, common products with deceptively simple designs have tripped up more than their fair share of plaintiffs’ attorneys. An attorney should always keep in mind that the highest and best use of an expert witness may well be to educate the lawyer during the pre-filing and early discovery phases of a case. Knowing the origins of a product’s design and functionality and likely methods of manufacture, and being familiar with industry standards, practices and regulatory requirements (if any) can be critical elements in a favorable outcome. (3) WILL THE DISCOVERY CURVE BE STEEP OR SHALLOW? Attorneys for product liability plaintiffs sometimes find comfort in the idea that there are practical limits on the scope and intensity of discovery that can be conducted against an individual prosecuting a personal injury claim. Plaintiffs’ lawyers can be surprised, therefore, when the defendant proceeds to subpoena every employment and academic record, depose every previous employer or supervisor, obtain medical records and testimony from every treating physician for the last 10 years and otherwise tie up money and resources in seemingly endless discovery hunts. While a defendant’s vigorous approach to discovery may occasionally appear unnecessary or overdone, it is difficult for a plaintiff to conduct too much discovery against a large, sophisticated and unperturbable corporate manufacturer. A plaintiff must be prepared to conduct extensive discovery to find the right people, the right documents and the right knowledge with which to piece together a successful product liability claim. (2) ARE THE DAMAGES SUBSTANTIAL? Let’s be frank: Only substantial damages can generate a substantial fee. Everyone wants to make more money per case and more money per year. Generating a substantial fee also means the ability to set aside money to prime the pump for the next promising case. Even substantial damages, however, cannot make up for lack of liability. Increasingly rare are juries — or jurisdictions — where substantial damages alone are enough to generate a large settlement or verdict. A recent study of medical malpractice verdicts suggests that substantial damages may, in fact, be a prerequisite for winning a plaintiff’s verdict on liability. (1) IS THE DEFECT OBVIOUS OR INDEFENSIBLE? If you cannot describe a compelling product defect in 25 words or less (or illustrate the defect with a simple photograph), think twice about taking the case. If the product is one the jurors use every day, limit yourself to 10 words. Every lawyer who aspires to practice product liability law can argue the existence of a product defect, but arguing does not make it so. Be sure you have a strong case for product defect before you take the plunge. John L. Tate is a partner at Stites & Harbison in Louisville, Ky. His telephone number is (502) 587-3400; his e-mail addresss is [email protected]

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