WRONGFUL DEATH TRIAL STRATEGY

By Timothy W. Monsees

tmonsees@monseesmayer.com

KANSAS CITY OFFICE
4717 Grand, Suite 820
Kansas City, Missouri 64112
(816) 361-5550
(866) 774-3233

SPRINGFIELD OFFICE
1021 E. Walnut
Springfield, Missouri 65806
(417) 866-8687
(866) 774-3233

PERSONAL INJURY AND WRONGFUL DEATH LAWYERS
www.monseesmayer.com


I. INTRODUCTION.

A wrongful death trial, from a damage standpoint, generally presents the ultimate in irrefutable damages. While liability and causation may remain open issues, seldom will the loss of a loved one, with the attendant emotional and financial hardships, be questioned. The surviving spouse or child may not even be cross-examined, out of fear of the defendant for raising further sympathy for the family. Any advocate, but especially plaintiffs attorneys, should develop a winning theme for his/her case. This theme should be unveiled as early as jury selection and consistently carried forward to the closing rebuttal.

II. VOIR DIRE — HE FIRST ESSENTIAL STEP IN WINNING THE CASE.

Voir dire is the first opportunity to sell yourself and to sell your case. If these two agenda can be accomplished in veiled, and not-so-veiled attempts to elicit information from prospective jurors, you have secured the first victories of the trial. Questions should combine pointed requests for information, create platforms from which to educate the jury about your case and present open-ended opportunities for interaction between the attorney and the jury panel.

Suggested topics of inquiry unique to wrongful death cases include the following:

  • Death of a loved one, spouse, child or parent. What hardships did this cause for you and your family;
  • What were the financial hardships? Loss of income, extra expenses such as last medical bills, funeral expenses and the like;
  • What were the losses to the family relationships, activities, etc.?
  • Especially if a spouse or parent are involved, how did this loss of counsel, advice and guidance affect you?
  • If punitive damages or aggravating circumstances are involved, you should ask the jury about their philosophical willingness to award such damages to punish egregious conduct;
  • If survival damages are involved, you should ask the jury about experiences they or members of their family have had with similar injuries.

Above all, when a juror acknowledges an experience or an attitude adverse to your case, use it as an opportunity to summarize and advocate your case. For example, let’s assume in response to a question, a prospective juror says he does not believe it is right to sue for the death of a loved one, i.e. that someone’s life cannot and should not be measured in dollars and cents. An appropriate response from the plaintiff’ s attorney could well be the following:

PLAINTIFF’S ATTORNEY: Mr. Smith, I respect your opinion, but would your views be different if you knew, as we contend in this case, that the defendant was legally drunk when he ran the stop sign and that the Missouri legislature and the Supreme Court of this state has recognized and approved procedures where only a select few qualify to file a lawsuit to recover just very special damages related to the death and loss of a loved one. These approved damages include things such as the financial support that Mr. Johnson provided to his wife and two sons, Jimmy, age 4 and Josh, age 6, the $80,000 in medical expenses this family has born for the doctors’ vain efforts to save Mr. Johnson’s life during the 6 painful days he lived after the collision and the value of the cohesive and loving family relationship that Mr. Johnson shared with his wife Debbie, Jimmy and Josh.

In short, begin playing on the sympathies your case naturally promotes and the prejudices the jurors may hold against the actions of the defendant.

III. OPENING STATEMENTS.

Properly done, one can easily construct a presentation that should more appropriately be labeled, “Opening Argument.” While an opening statement is properly a recitation of the evidence and testimony expected during the trial, without conclusions or argument, the use of emotion, voice inflection and story telling will leave little doubt in the jury’s mind how you feel about the insurer’s actions. Above all, construct and maintain a theme. If your theme is “for a few dollars the product manufacturer could have installed the safety device it patented but declined to include in the product’s design thereby costing your clients a lifetime with their husband/father” the first words out of your mouth should convey that message.

Opening statements that spend undo time expressing appreciation for the jury’s presence, explaining the purpose of the opening statement, or explaining burden of proof, continuously prefaced with, “the evidence will be,” cure more insomnia than Sominex. Effective opening statements begin with a brief, but powerful, summary of the theme and story of your case. Rather than spend the first 3-5 minutes of the case introducing yourself and explaining the purpose of an opening statement, as many attorneys are inclined to do, a plaintiff’s attorney scores the first hit with the following:

Jim Johnson, Sr. was a young man on July 10, 2000. By all accounts he could have expected to live another 62 years and he had a lot to live for. He adored his wife and their two young boys, Jimmy, Jr. and Josh and had plans to spend the last week of the summer taking the family to Disney World. Jimmy and Josh Johnson never made it to Disney World with their dad that summer. The defendant, Clyde Jones, saw to that well before he consumed the last of the 12 Jack Daniels and waters he drank between 9:00 p.m. and midnight on July 10 th . As Jim Johnson innocently drove home from work as the Assistant Manager of the grocery store at 12:30 a.m., 5 blocks away from snuggling next to his wife and looking forward to the next morning and a trip to the zoo with the boys, Jim’s life ended in a fiery crash when Clyde Jones ran the stop sign at 87 th Street and Main at a speed estimated at near 60 m.p.h. and a Blood Alcohol content nearly 3 times the legal limit.

The remainder of the opening statement can be devoted to a more thorough recitation of the expected evidence and testimony. However, reciting the evidence as a story is more interesting. In addition, presenting the case in story-form conveys a subtle message. By telling a story, you send the message, “this is what happened.” By contrast, prefacing the expected testimony and evidence with comments such as, “the evidence will be,” sends the subtle message, “this is what our position is.” The former sounds like testimony, while the latter sounds like a lawyer talking.

Use of demonstrative aids in opening statement is a matter of personal preference. A compelling exhibit is always persuasive, and most doubts should be resolved in favor of using a demonstrative exhibit that is central to the case. On the other hand, many great orators are slowed in their presentation by an accumulation of demonstrative aids that may get in the way of a powerful narrative. If, however, you feel the story is enhanced with demonstrative aids, by all means, they should be used. Care should be exercised, however, in using exhibits that may not come into evidence. Reliance on an exhibit in opening statement that never comes into evidence may cause the attorney to lose credibility with the jury. For instance, an astute lawyer will make notes of his opponent’s opening statements and the representations of what the evidence will be. Failure on even a seemingly minor point to step forward during the trial with the promised evidence, may cause the jury to doubt the attorney’s sincerity about the accuracy of other representations, In short, if you are going to include it in your opening statement “story,” it better be presented as evidence at trial.

For example, in a recent employment discrimination trial, opposing counsel made repeated representations about evidence that would be presented at trial to support the defendant’s position that plaintiff was a bad employee. Extensive notes were made during counsel’s opening statement of the facts to be proven. Approximately five or six key items of testimony or evidence were never produced by defendant during the trial, in spite of what amounted to “promises” to the jury of the expected evidence. The first five minutes of plaintiff ‘s closing argument were devoted to a recitation of the failed promises and how the failure discredited even the evidence that was presented by defendant. In short, if defendant went out on a limb to falsely represent what the evidence would be, evidence that was never produced, how could one rely on other affirmations of truth offered by defense counsel and defense witnesses?

IV. ORDER OF WITNESSES.

There are two schools of thought on presenting any case. There are those who want the jury to hear only the good about the plaintiff s case, and therefore call only friendly or supportive witnesses. Others prefer to call key defense witnesses during the plaintiff’s case-­in‑chief. This either gives the appearance of candor or, at the very least, lets the jury first hear adverse testimony orchestrated through the leading questions of the plaintiff’s attorney.

In bad faith cases, the plaintiff can often gain a tactical advantage by calling the adjuster for the insurer as one of the first, if not the very first, witness in the trial. This is not without some risk, as the adjuster may succeed in establishing himself/herself as a professional, friendly, well-prepared asset for the insurer. Calling the adjuster or company representative first is living on the edge, but nothing is more persuasive than an effective examination of the defendant’s key witness before the jury has had the chance to hear the insurer’s story the way it wants the story to be heard.

The insurer will invariably have policies and procedures that govern the adjusting of claims, proper investigation, setting of reserves, review of the policy for policy defenses and general case evaluation. Moreover, most companies nowadays have policies for dealing with insurance defense counsel, such as permission for taking depositions, hiring experts, conducting legal research and interviewing witnesses. Often, these policies are so detailed that an attorney for a bad faith plaintiff can effectively argue the insurance company, for all intents and purposes, was the attorney for the defendant. This is all the more true in situations when insurance companies utilize in-house lawyers for defense of cases. Imagine the conflict of interest! While the insurance company has an interest in paying out the least amount of money, the insured’s only interest may be in protecting his assets. Is the interest of the insured served by an attorney who is an employee of the insured?

If any of these situations exist, and one or more generally will, use of the undeniable written policies, guidelines and procedures of the insurer, is the cornerstone of an effective examination of the insurance adjuster or company representative. In a case recently tried for unpaid disability benefits, a significant issue arose as to the quality of the insurer’s investigation. The claims manual required a “thorough” investigation of all claims. Needless to say, plaintiff contended the investigation was anything but “thorough,” and the claims manual was used to demonstrate how the insurer violated even its own standard of care.

Case evaluation letters or status reports authored by insurance defense counsel can have the effect of admissions, especially where such letters reference difficulties in defense or doubts as to the outcome. In such circumstances, the “gambling with the insured’s assets” theme is powerful.

Assuming an effective examination of the adjuster or company representative, it is often effective to give the jury an immediate look at the damage done. Where the plaintiff, during the defense of the underlying case, made a request for the case to be settled within policy limits, his testimony is nearly unimpeachable. In many cases, the insurance company will not have shared with the insured case evaluations and status reports authored by the insurance defense attorney. Even rarer, is the sharing with the insured of the adjuster’s reports to claims supervisors or claims managers. Certainly, the insured will never be advised of the reserves. Easily constructed is anexamination designed to show the insured as the ignorant lackey of the insurer. Even when the insured made no request that the case be settled, one can often show the insured had no idea of the risk the insurance company was undertaking with his money.

Once you have shown your client to be either the victim of calloused indifference to his pleas for settlement or duped into believing the insurer was protecting his interests, the damage of an excess or punitive damage verdict on creditworthiness, loss of assets or emotional well-being, is easy for the jury to accept.

Other witnesses can include a personal attorney for the insured. If a personal attorney was retained by the insured, chances are greater that efforts were made to pressure the insurer into settlement within the policy limits. While the personal attorney may be somewhat better informed than the insured on case evaluations from insurance defense counsel, it is not uncommon for things to be painted in the best possible light to the personal attorney and in a somewhat different light to the insurer.

The insurance defense counsel is another potential witness, and at times, he may be a defendant to the bad faith action by way of some malpractice or breach of fiduciary duty theory. If he values his client relationship-with the insurance company, he is not likely to be particularly helpful, but insurance companies have been known to sever relationships with attorneys who try cases resulting in big excess judgments for their insureds. Assuming there are candid letters from insur ance defense counsel about down-side risks with the case, the letters may be all that is necessary in establishing the motives of the insurer. However, where the insurance company asserts a “reliance on counsel” defense, examination of the attorney may be unavoidable. Such a defense may be discredited by showing the degree of control exerted by the insurer over the attorney’s independent judgment. Did the insurer require permission for certain tasks, for retention of experts or filing of motions? Did the insurer conduct the settlement negotiations, or was the attorney given autonomy? Even if the attorney conducted the discussions, oftentimes the insurer controls the amount of the offer, as opposed to granting the attorney a range of settlement authority within which the attorney is free to negotiate.

Finally, and perhaps most importantly, how much of what the attorney was sharing with the insurer was likewise provided to the insured? Seldom will the flow of information to the insured remotely equal that to the insurer. In all such examinations, it is important to remind the attorney in examination that, ethically, his duty is solely to his client, the insured. Such a conflict of interest is inherent to the insurance defense practice.

On the damage side, bankers, consumer credit representatives, employers (especially if a garnishment was issued), mortgage brokers and where appropriate, physicians, are all possible witnesses. But, if even one creditor has rejected the plaintiff s credit application, one creditor has foreclosed due to the judgment or a single garnishment has issued to an employer or bank, the plaintiff/insured will be a powerful witness in responding to the question, “how did that make you feel?”

Virtually every juror will at one time or another in his/her life have been a victim of money problems. While most of our financial problems can be blamed on no one but ourselves, someone who has been responsible enough to properly insure himself does not expect, or deserve, to suffer economic disaster at the hands of a multi-billion dollar insurance company. With the plaintiff, play into the “little guy” or “underdog” mentality. Insurance companies do not have feelings. By contrast, the little guy who lost his home, his job or his transportation to satisfy a judgment, pay medical bills wrongfully denied or to make up for lost income that would have been paid through a disability policy, has powerful feelings about loss of self-esteem, distress and worry.

V. USE OF EXPERTS, ADVICE OF COUNSEL.

Experts are overrated. However, they often provide a platform from which the plaintiff’s attorney can summarize his case. Care should be paid to retention of an expert in this field. In most instances, the expert will be a former insurance adjuster or claims manager. As such, the expert, at the very least, probably followed procedures not unlike those that may be the focus of the trial. Worse yet, he may have formulated or authored some of the procedures or guidelines at issue. If, in the attorney’s judgment, the issue is failure to follow what would be acceptable guidelines or procedures, use of an expert may be illuminating. On the other hand, if the guidelines or written procedures are questioned, make sure your expert is not the former author or advocate of similar rules.

Experts, even if not used to testify, can be consulted to provide insider information on the types of documentation available, the process and thinking of setting reserves and other procedural steps employed by insurers in disposing of claims. Many times, it is important to know the dynamics of settlement authority when split between local and home offices. Just as in any other business, politics often come into play.

An expert, if called upon to testify, can shed light on these issues, as well as what truly constitutes a proper investigation. In many instances, what appears at first glance to be an extensive investigation can be put into perspective by the expert who reveals the investigation for what it often times is, an investigation into how to deny coverage, not determinecoverage. For example, even large insurers often hire independent adjusting services or agencies. Secure a copy of any documents or letters setting out the scope of the independent adjuster’s duties. Was the independent adjuster given broad discretion to “find the facts,” or was he or she directed specifically to conduct only certain tasks?

In both Missouri and Kansas, an expert is generally defined as anyone, who through training or experience, is likely to assist the jury in understanding or interpreting the evidence. McKinley v. Vize, 563 S.W.2d 505 (Mo.App. 1978);State v. Willis , 256 Kan. 837, 888 P.2d 839 (1995). In Federal Court, where in 1993 the United States Supreme Court decided Daubert v. Merrill DowPharm., Inc., 1131 S.Ct. 2786 (1993), closer scrutiny is undertaken of the basis for the expert’s opinion. While it is unclear whether, at present, Daubert extends to experts in the insurance field, the climate within the judiciary is to curtail the use of experts.

Daubert should not generally interfere with expert opinion within the insurance field, but experts should be retained who are inclined to analyze departures from existing industry standards and customs, as opposed to formulating new practices heretofore unaccepted in the industry.

An expert may be unavoidable if the issue is the “advice of counsel” defense. No cases can be found in either Kansas or Missouri that recognize this as a defense to a “bad faith,” “vexatious refusal” or failure to pay “without just cause or excuse” case. Even in states recognizing the defense, advice of counsel may not be a complete defense. In Crabb v. National Indemnity Company, 87 S.D. 222, 205 N.W.2d 633 (1973) , the Supreme Court of South Dakota, explained the limits of the defense as follows:

[W]e do not agree that reliance on counsel is the sole decisive test of good faith in the present action. It is merely one factor to be considered. An insurer cannot discharge its entire responsibility to an insured ‘by simply employing a competent attorney and abiding by his decision concerning advisability of settlement.’

205 N.W.2d at 636 . (See also, Dumas v. Hartford Accident & Indemnity Co., 94 N.H. 484, 56 A.2d 57 (1948).

If advice of counsel is asserted as a defense, the best tactic may be to attack the degree of control exerted by the insurer over defense counsel, as discussed in Section IV above. To recap, this defense is effective for the insurance company only if its attorney truly controls the defense of the underlying case. The more control exerted by the insurer over negotiations, defense tactics, discovery, etc., the less likely the insurer was the unwilling pawn of a zealous insurance defense attorney. In the present insurance-defense climate, the advice of counsel defense is more easily dispatched.

Nonetheless, an attorney expert may be instrumental in not only effectively demonstrating the lack of control exerted by the insurance attorney over the defense of the underlying case, but in addressing issues such as the attorney’s inherent conflict between advising the insurer and representing his ethically recognized, true client, the insured. Once this inherent conflict is illuminated, the failure to keep the insured as informed as the insurer, takes on the appearance of concealment. While the jury may easily recognize this on its own, an attorney expert may again provide the platform for an effective summary of your position.

If the plaintiff ‘s attorney from the underlying action and the plaintiff ‘s attorney for the bad faith action are two different people, the first attorney may be an effective advocate for the bad faith case. If done properly, the first attorney thoroughly documented his intentions to look to the insurer to satisfy any excess judgment, advised opposing counsel of his evaluations of the case and can testify how well the case progressed during the course of trial, probably with a continuing failure by the insurer to make a palatable offer of settlement.

In a case tried several years ago, which resulted in a verdict for more than four times the stated insurance limits, the insurer had a representative present throughout the two-week trial. The representative, himself an attorney, made many comments about how well the case was going for the plaintiff. The defendant was insured for $1,000,000, but the limits decreased with defense costs (these policies present additional problems for defense counsel and insurers in the bad faith arena). Before trial, the defense offered a mere $50,000 for a case involving substantial brain injury. Although the case was one of questionable liability, any verdict in favor of the plaintiff would probably exceed the limits. The insurer was given every opportunity to settle before trial for the ever-decreasing limits of the policy. Just before the case concluded, the insurance representative tried to renew settlement discussions. Although the offers were still much less than the policy limits, they were substantially higher than those before trial.

In the subsequent bad faith case, the insurance representative became a key witness, as he witnessed the problems encountered by the defendant. His comments about the trial could be directly attributed to the insurer, since he was directly retained by the insurer and had no defense obligations to the insured. Although the bad faith case was settled before discovery was completed, an advice of counsel defense was probable. It was likely theattorney-representative was going to offer expert opinions regarding his evaluation of the case in the bad faith trial, but his testimony was also important on the facts he heard and observed. In short, irrespective of his pre-trial opinions, his observations during trial, conveyed daily to the insurer, mitigated substantially against a viable, advice of counsel, defense.

VI. EXH IBITS – USING EVIDENCE TO SWAY FENCE-SITTINGJURORS.

Demonstrative exhibits and aids are generally permitted when they will assist the jury. Brandt v. Csaki, 93 7 S. W.2d 268 (Mo.App.W.D. 1996); State v. Seely, 212 Kan, 195, 5 10 P.2d 115 (1973). Depending on the particular evidence of your case, letters and excerpts of letters sent by insurance defense counsel to the insurer are powerful persuaders. Imagine the influence of a case evaluation letter authored by defense counsel in a case when the insured possesses policy limits of $25,000 that says:

Dear Ms. Adjuster:

While I believe this case is defensible, as liability is questionable, an adverse verdict could be substantial. The chances of a defense verdict, in my opinion, are greater than 50%. However, in the event of a verdict for plaintiff, the range of potential verdict is $150,000-­200,000.

Hereinabove, I have already alluded to key documents and exhibits. Any course of discovery should begin with the claims file and insurance defense attorney’s files. There should be no privileges, as any attorney/client or insurer’s privileges will be waived by the disgruntled former defendant. Insurance companies love reports, diaries and evaluations. Since few cases are sure winners or sure losers, one will invariably find some comments in such documents that will at least raise doubt about the insurer’s predicted or hoped-for outcome.

Discovery should also focus on written guidelines, policies and procedures of the insurer. Every insurer has a claims manual. Frequently, manuals exist for policy interpretation, investigation, claims evaluation, reservation-of-rights letters, control of defense counsel (or controlling costs of defense) or for communication with insureds. Just like any other large organization, insurance companies possess more rules and guidelines than anyone could ever be aware of, much less consistently follow. Moreover, such manuals will often have statements of purpose, which may convey a powerful message about the potential consequences to the insured of departure from the established guidelines.

Photographic enlargement or display of such policies form effective platforms from which to examine or cross-examine insurance representatives. It is often effective to enlarge only an excerpt from such writings, but enlargement of the cover or title page of the guideline as well helps the jury put a particular passage in context.

In a recent case tried to the court, which included a claim for vexatious refusal under Missouri law, the insurer contended the claim was denied only after an extensive investigation, some 60 days after the automobile collision. A diary entry in the claims file strongly suggested the investigation was called off a mere two weeks following the collision after the insurer caught wind of a potential policy defense. In fact, there were few entries in the claims file, except periodic diary notes, after the noted diary entry. Prominent display of the diary entry, combined with testimony disparaging the investigation, no doubt contributed to a judgment against the insurer for more than two times the $300,000 policy limits.

VII. CLOSING ARGUMENT.

While the defense counterpart to this section is subtitled “The Defendant’s Opportunity to Bury the Plaintiff’s Burden of Proof,” it is important at the outset to remind readers that the insurer bears the burden of proof to establish the applicability of a policy exclusion. Studies have shown that few cases are either won or lost in closing argument. Nonetheless, it can be an effective opportunity for the plaintiff to escalate a verdict or persuade those few jurors who are “on the fence.”

As with opening statement, an attorney has to make a decision on how to balance the use of demonstrative aids with an effective oration. Use of a few selected, powerful exhibits, is wise in any situation. But most importantly, the closing argument should begin with and pursue the theme introduced in opening statement. Again, while there is a time and place in the argument to acknowledge the juror’s contributions and inconvenience, many such presentations come across as dull and patronizing. Clearly, it is more persuasive to begin the argument with another short, pointed recitation of the key evidence and theme of your case. It should closely resemble the example for opening statement presented hereinabove, but it is also persuasive to use the same technique to highlight a particular, powerful bit of testimony presented at trial.

In doing so, it is often persuasive to have portions of the trial testimony transcribed and either read to the jury or enlarged and displayed to the jury in closing argument. This can take the form of a key admission or outlandish comment made by an opposing witness.

Defendants like to spend extensive time arguing instructions. A common tactic is to read the “burden of proof” instruction to the jury and argue the plaintiff has failed in his/her obligation to persuade. Plaintiff’s attorneys who spend extensive time on instructions may also be effective, but may lose the emotion generated by “sticking to the facts.” It is effective to enlarge the verdict form, and demonstrate for the jury how it should be completed. This can be done while discussing damages and suggesting to the jury an appropriate award by filling in the amount on the verdict form.

“Burden of Proof” is the favorite and least effective argument of defense counsel. In Missouri, the plaintiff must only convince the jury to “believe” his case. See, e.g. , MAI 2.02 [1980 Revision], MAI 3.01 [1988 Revision].

Since now the limits on arguing the case have been relaxed, inflection and emotion can be combined with conclusions. Play the “devil’s advocate” with the jury. Before drawing the ultimate conclusion, it is effective to address all the acts and omissions of the insurer combined with rhetorical questions, “Why do you think they did that?”

Remind the jury of the unfulfilled promises of defense counsel from opening statement. As discussed in the section on Opening Statements, significant credibility is sacrificed by these unrealized promises of expected testimony or evidence. Even if the defense counsel has not characterized the expected evidence as a “promise,” a good plaintiff’ s attorney should do so in terms of the defense’s “failed promises.”

Time should always be reserved for rebuttal argument. This is the only presentation in the trial to which there will be no response. Since this is the last thing the jury will hear, emotion generated during rebuttal will hopefully send the jury forth to its deliberations empowered with plaintiffs cause. Many bad faith cases will include a submission of punitive damages or other penalties under the vexatious refusal statutes. Hence, the rebuttal can be used as the perfect platform for urging the jury to “send a message” by the verdict. At the very least, however, a key argument or phrase used by defense counsel in closing can often be turned around as reflective of insensitivity or callousness by the insurer. Positive emotion for the plaintiff rewards the plaintiff with adequate compensatory damages. Negative emotion against the defendant insurer, penalizes the defendant with either an enhanced compensatory damage award or a punitive damage verdict. In either respect, the emotion of the last words of rebuttal send the jury forth energized.

VIII. CONCLUSION.

A bad faith case is a plaintiff’s attorney’s dream. Every insurance cliché, big business prejudice and “underdog” sentiment, can and should be used. Irrespective of the merits of the defense, insurers are target defendants. In a close case, juror sentiment will tend to reward the little guy at the expense of the wealthy insurer, As such, there is, effectively, no burden of proof for the plaintiff. For all intents and purpose, the insurer has the burden of proof. In a case where the premiums have been paid, the plaintiff is making his first or one of few claims and the financial losses are understandable and significant, the insurer’s burden is a big one.