Defending Punitive Damages Cases and Preventing Runaway Awards: New Approaches
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Class Action and Other Litigation
- event Date
Tuesday, July 18, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will discuss how to give the jury reasons not to award punitive damages even if it ultimately decides the client caused the alleged harm and should compensate the plaintiff. The panel will discuss important pre-trial considerations, legal protections available to the defendant, and crucial decisions to be addressed at trial. The panel will also discuss using Federal Rule of Evidence 407 to counter the plaintiff's perennial "send a message" theme.
Ms. Lehman is a member of the Tort Litigation and Environmental Group. She has experience in individual plaintiff actions as well as mass tort actions. Ms. Lehman has represented a wide range of public entities as well as private entities in the medical, food service and transportation industries.
Ms. Daniel is a partner at the appellate boutique, Webb Daniel Friedlander LLP, based in Atlanta but with a national practice. (Previously, she served as Chair of H&K's National Appellate Team). Ms. Daniel handles motions and appeals--and provides strategic trial support--in federal and state courts nationwide (including the U.S. Supreme Court) in various types of cases ranging from complex litigation (intellectual property, antitrust and unfair competition, securities fraud, corporate opportunity, breach of fiduciary duty, CERCLA, etc.) to torts involving personal injury (product liability, premises liability, wrongful death), other negligence, fraud, and defamation. Ms. Daniel is a generalist with an appellate specialty. Her forte is combining appellate skills with substantive expertise to position high stakes cases for a successful outcome, often working with trial counsel from other firms to do so. Ms. Daniel has served as a commentator for CNN and many CLE programs, and she was named Lawyer of the Year for Appellate Law (Georgia/2017) by Best Lawyers in America.
Runaway punitive damages awards continue to demonstrate that traditional defense strategies can fail against increasingly sophisticated arguments from the plaintiffs' bar. Getting the claim dismissed on summary judgment or arguing that the plaintiff failed to prove the necessary level of culpability may be tools but often fail as stand-alone strategies.
Radically different approaches are needed. Counsel must develop a comprehensive strategy, including affirmatively telling the defendant's story.
Defendants are finding success in invoking FRE 407 and arguing that subsequent changes have made punitive damages unnecessary. This approach may be instrumental in a variety of tort cases, including trucking and motor carrier cases.
Listen as the panel shares defense strategies for proactively establishing the facts necessary to show that the defendant acted in good faith and to counter arguments by plaintiffs that punishment is needed.
- Finding and telling the defendant's story
- Focusing on the "why" of the defendant's actions
- Countering plaintiff's likely strategies and themes
- Deciding whether to bifurcate
- Strategic use of pretrial motions and objections
- Building the defense with jury selection, jury instructions, and anchoring
- Using appellate and punitive damages experts
- Introducing subsequent remedial measures under FRE 407
The panel will review these and other issues:
- Why do motions to dismiss or for summary judgment usually fail?
- How can defense counsel give the jury a reason not to award punitive damages?
- Why must defense counsel, when punitive damages are alleged, think like a plaintiff's lawyer?
- How can anchoring be used effectively?
- How can counsel use FRE 407 to show that punitive damages are unnecessary?
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