By: Jack Vales and Kristen Rodriguez

In the best-selling book, The 7 Habits of Highly Effective People, Stephen Covey famously encouraged his readers to “Begin with the End in Mind.” To build a winning defense case at trial, no advice is more important. From the very inception of a potential high exposure case, defense counsel should begin formulating a plan for achieving victory at the end of the case, whether by motion and/or trial. While this plan will naturally evolve as the matter proceeds, every step undertaken by counsel in defense of a case should be undertaken with the end in mind.

So, in the world of high exposure claims and nuclear verdicts, what does this mean in practice?

Prepare and Utilize a Proofs Memo Tied to the Jury Instructions

To begin with the end in mind, it is essential for defense counsel to understand what their client must prove and/or disprove at trial to achieve a defense verdict. The jury instructions, of course, provide the lens through which the jury will decide whether a litigant has proven its case. The jury instructions will define the elements of each claim and any affirmative defenses to such claims. With this in mind, it is extremely helpful to develop a proofs memo -- at an early stage of the case – tied to the anticipated jury instructions. The proofs memo should set forth the evidence necessary to establish or disprove the elements of each claim and defense, as defined by the jury instructions.

With a robust proofs memo in hand throughout the discovery process, defense counsel can best prepare a case for summary judgment and trial. For example, a well-developed proofs memo may serve as a valuable checklist in the planning of any deposition, the formulation of interrogatories and requests for admission, and the development of experts. Not only does such memo focus counsel on eliciting evidence critical to attacking a claim or establishing a defense, but it sharpens counsel’s ability to resist the traps laid by plaintiffs’ counsel to establish standards of conduct untethered to the law governing the case. This memo also provides a blueprint to the trial team to ensure alignment on strategy, themes, and theory.

Anticipate the Plaintiffs’ Strategy at Trial

From the inception of the case, defense counsel should anticipate the plaintiffs’ strategy at trial. Where plaintiffs’ counsel has made a substantial investment in the litigation (with or without third-party litigation funders), it is likely that counsel will seek to build a case that maximizes the risk of a nuclear verdict. Understanding the causes of such verdicts generally,¹ defense counsel should formulate a case strategy from the outset that limits or defuses the triggers of nuclear verdicts. 

For example, as discussed in our Trial Series article titled, The Causes of Excessive Jury Verdicts, plaintiffs’ counsel often seek to pursue multi-plaintiff cases to increase the probability of success at trial. With this in mind from the outset, defense counsel should consider both opposing motions to consolidate cases for trial and filing motions to sever. Similarly, plaintiffs’ counsel often seek to lay the groundwork for a trial “reptile” strategy in a Rule 30((b)(6) deposition. With this in mind, defense counsel should both prepare the Company witness to most effectively respond to such line of questioning and develop a deposition “cross” of the Company witness that counsel may employ to elicit company testimony designed to neutralize the “reptile” approach.

Anticipating the plaintiff strategy at trial should likewise inform many other strategic decision points in the case, including but not limited to (i) initial motions in response to the Complaint, (ii) the deposition of plaintiffs’ experts, and (iii) pretrial in limine and dispositive motions. 

Begin Formulating Jury Presentations from the Outset

Trials generally present only three limited opportunities for counsel to speak directly to the jury: voir dire, opening statements, and closing arguments. For this reason, and because they occur at the beginning and end of trial, they are critical to trial success. Indeed, due to the psychological phenomena of primacy and recency, juries are most likely to remember information presented at the beginning and end of trial. With this in mind, sophisticated defense counsel should begin formulating their jury presentations from the outset. 

Doing so presents enumerable potential advantages, including enhancing the opportunity to:

• Test and refine case themes and theories.
• Develop evidence and visual aids supportive of the case themes and theories.
• Craft stories that best contextualize the evidence for the jury.

Underlying each of the above concepts is a fundamental principle: Begin with the End in Mind. When defense counsel takes this approach in a disciplined and rigorous manner, counsel optimizes the opportunity for a defense verdict and minimizes the risk of a nuclear verdict. To learn more about these and other solutions, please contact your Dentons team.

1. See Dentons Trial Series, The Causes of Excessive Jury Verdicts.↩

US Trial Strategy Series
Introduction to Dentons’ Trial Strategy Series
The Causes of Excessive Jury Verdicts

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