The Art of Winning

The defense was about to start closing arguments in the case of Howell v. Hamilton Meats & Provisions Inc. when the plaintiff’s counsel requested a sidebar. What follows is not actual testimony but, rather, a paraphrased re-enactment of select portions of that jury trial:

Plaintiff’s Counsel: “Your Honor, before we proceed with closing arguments, I want to object to Mr. Tyson making any more references to Hamilton Meats & Provisions being a family-owned business. Mr. Tyson told the jury in his opening statement that Mr. Hamilton is a third-generation owner of the company. He went on and on about Hamilton Meats & Provisions being in business in this community for over 50 years. But he never offered any evidence of these things during trial. I object to any further mention of these matters during the defense’s closing argument.”

Judge: “That is right, Mr. Tyson. You did say all of those things in your opening statement, but you did not introduce any evidence about your client or anything else for that matter.”

Plaintiff’s counsel was right. The judge was right. Counsel’s objections were sustained. After two weeks, the defense had introduced no witnesses, no documents, no evidence at all in this admitted liability, damages-only jury trial. 

That trial, and the appeals that followed, resulted in the multibillion-dollar landmark California Supreme Court decision on the billed versus paid medical damages issue. The client won at trial, and the insurance industry ultimately won big before the Supreme Court.

So why are we telling you about this? Hamilton Meats’ victory was due, in part, to the story that was told about the company. This story started in opening statement. The client was personalized to the members of the jury by telling them its corporate story. Not a boring summary from a website but, rather, a very personal story. A story of family, pride in ownership, and standing in the community. 

Why Personalize?

Defense counsel and claims professionals should try to personalize the client, whether the client is a corporation, an LLC, a general partnership, a sole proprietorship, or an individual. You must even humanize your corporate client when you are introducing no evidence.

We live in a consumer-driven society that runs on business brands. Think about the number of products you use every day. Whether it is the toothpaste used to brush your teeth, the car you commute in, or the coffee you drink every morning, some type of business creates essentially everything you consume. Yet, we would venture to guess that rarely do you think about what lies behind the brand name of the products you use. It would be unnatural for people to contemplate the history of the companies that produce those products. The stories of the employees and officers who comprise those businesses, the corporate values and visions, and how such businesses affect or transform the communities in which they operate. But this is exactly the type of information that enables jurors to relate to corporate defendants.

Getting a jury to identify with your corporate client is critical, especially when it comes to damages. Why? Jurors may impose higher damages awards against corporate defendants when they cannot relate to the corporation on a human level. Without that connection, a corporate defendant runs the risk of being viewed as a faceless brand name with a big bank account. Under the California Civil Jury Instructions 104, the defense can request the judge to instruct the jury that a corporation is “entitled to the same fair and impartial treatment” as a human being. Nevertheless, it is very dangerous to rely on the law without a personal connection to your business client. 

Claims professionals and defense counsel must partner together to develop the corporate story and provide the jury with a basis to identify with the insured client. This story should include a corporate representative who is present for every day of trial. The story telling itself will take place during jury selection, opening statement, witness examinations, and closing argument. 

Corporate Representatives

Selecting a corporate representative is an important decision because this person will be the face of the insured client’s business. He should be present during trial proceedings as much as possible, hopefully every day. This person may never testify, but he will serve as a representative in the courtroom to which the jury can use to tie a face to a defendant company. Of course, defense counsel should make sure this individual has a pleasant demeanor and cares about the company. Claims professionals and defense counsel should select and prepare this person before trial.

Mick Hamilton, president and owner of Hamilton Meats, was the corporate representative in Howell. He was introduced to the jury on the first day of trial. Thereafter, Hamilton sat through each and every day of trial proceedings. It created a lasting impression on the jury. His presence alone demonstrated to the jury that his business cared about the lawsuit and was equally invested in the outcome. His presence humanized the corporation. 

Voir Dire

Jury selection is the defense’s only opportunity to weed out prospective jurors who hold anti-corporate sentiments. It also is the defense’s first opportunity to begin telling its corporate story. 

While typical jury instructions advise jurors that they must not “let bias, sympathy, prejudice, or public opinion influence your verdict,” the reality is that no one can completely leave their biases at the door when they walk into a courtroom. For this reason, it is crucial to question prospective jurors about their feelings toward corporations, whether they think they should be punished (regardless of whether there is a claim for punitive damages), and whether there are any personal or family experiences that could lead them to view corporations in a negative light. 

The questioning also should begin to incorporate background facts about your client’s business. This can set the stage for when the full corporate story comes out during trial. You want to begin to frame your client’s story as early as possible because the earlier you do so, the more likely the jury will remember the information. By discussing potential voir dire questions in preparation for trial, claims professionals and defense counsel can ensure that the insured client’s story is presented effectively from the outset.

Trial Strategy

The best time to tell the full corporate story is during opening statements. Plaintiff’s attorneys typically focus on the defendant’s conduct during their opening statements, not the actions of the plaintiff. For this reason, defense counsel should utilize opening statements to reframe the story. Part of reframing the picture presented by plaintiff’s counsel involves telling the jury about the history of your corporate client’s business and the corporate representative sitting in the courtroom. It also involves telling the jury about the business’ mission, its purpose, and what it has done for the community. You want the jury to hear this story from the very beginning, as it will shape the way jurors view the evidence presented during trial. 

Depending on the defense strategy developed by defense counsel, the claims professional, and the insured client, the defense may not call any corporate client witnesses for examination. This was the case in Howell. If, however, the defense intends to question a corporate witness, make sure to remind them of the business’ history during preparation. During trial, ask them questions about the company’s story and contributions to the community. Also, elicit testimony from the witnesses about their personal involvement in the company and what they love about their jobs. Such testimony fosters a connection between the jury and the corporate defendant, humanizing your client. 

Lastly, for all of the reasons set forth previously, do not wait until closing arguments to convey the corporate story. Delaying this story until this point may lessen the real impact on the jury. Furthermore, the defense runs the risk of never being able to tell the tale if counsel does not present sufficient evidence to support it during the defense’s case in chief. Reiterate the good that the corporate client has done for the community and solidify a connection between the jury and the company. Counsel must tell the jury what an honor it has been to represent the company and how thankful they are for the attendance of the corporate representative. 

Takeaway

It is a well-known tenant of trial lawyers that one must never tell the jury anything in the opening statement that is unsupported by the evidence. Lawyers are taught that the repercussions can be severe if anything is said in opening that cannot be proven. So what do you do in a case in which you are introducing no evidence? Break the rule!

Did plaintiff’s counsel get up in the closing of the Howell trial and say Hamilton was not a third-generation small-business owner? That he was not a stalwart of the community? That it was not an honor to represent him and his family business? Of course not.

As demonstrated by the Howell verdict, personalizing the corporate client is an essential defense strategy to help reduce potential exposure at trial. Putting a face to a company name with your corporate representative and weaving your corporate story throughout trial may diffuse juror anger, appear reasonable in your defense arguments, and minimize the likelihood of a runaway jury verdict. 

The information in this publication was compiled from sources believed to be reliable for informational purposes only. Any and all information contained herein is not intended to constitute advice (particularly not legal advice). Accordingly, persons requiring advice should consult independent advisors. We do not guarantee the accuracy of this information or any results and further assume no liability in connection with this publication.