In my June column1 I 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.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
