Defending Punitive Damages Cases and Preventing Runaway Awards: New Approaches

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Thursday, January 28, 2021

Recorded event now available

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Course Materials

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.

Description

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 invoking FRE 407 and arguing that subsequent remedial measures 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 counter arguments by plaintiffs that punishment is needed.

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Outline

  1. Finding and telling the defendant's story
    1. Focusing on the "why" of the defendant's actions
    2. Countering plaintiff's likely strategies and themes
  2. Deciding whether to bifurcate
  3. Strategic use of pretrial motions and objections
  4. Building the defense with jury selection, jury instructions, and anchoring
  5. Using appellate and punitive damages experts
  6. Introducing subsequent remedial measures under FRE 407

Benefits

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?

Faculty

Lehman, Kathryn
Kathryn S. Lehman
Partner
King & Spalding

Ms. Lehman is a member of the Tort Litigation and Environmental Group. She has experience in individual plaintiff...  |  Read More

Morris, Mitchell
Mitchell K. Morris
Partner
Butler Snow

Mr. Morris is a member of Butler Snow’s litigation department and practices within the Product Liability, Toxic...  |  Read More

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