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“3 Litigation Strategies To Combat ‘Safetyism’”

publication | March 19, 2024

Ann Marie Duffy published an article in Law360, which discusses the rise of safetyism — affecting jury verdicts and contributing to jackpot damages awards that have stunned corporate America and seasoned trial lawyers alike — and provides tips on how to defend against it.

With data pointing to 91% of mock jurors interviewed by Blueprint Trial Consulting believing the products they buy should be 100% safe for all consumers, Duffy offers three litigation strategies for defense attorneys to combat safetyism.

1. Know the facts. Not only should counsel know the company’s history and key players early, but document production should never be limited to producing only what the other side has asked you to produce. Companies should think carefully and strategically about the history and facts of what happened and how they will present this at trial. Thinking of discovery in offensive terms early in the case can pay dividends later in the avoidance of large jury verdicts and punitive damages.

2. Identify your witnesses. Once you know the facts, witnesses will be key to conveying those facts to the jury. Who presents the company history and the facts of what happened at trial is important, so ensuring you get to know all the individuals who were involved in the issue, and who can speak to what the company knew and what steps the company took, is critical.

3. Tell the facts every chance you get. While it’s important to tell the company’s viewpoint regarding key issues in its pleadings and motions practice, trial counsel should also take every opportunity — be it a status conference or an argument on a discovery or procedural motion — to educate the judge about the facts from the start of the litigation. Doing so early and often can pay dividends later when the court has to rule on dispositive motions, motions in limine, and other evidentiary issues.

Subscribers may access the story at Law360.