It’s time for our 2020 plaintiff trends to watch according to renowned trial attorney Brian Panish.
To kick-start the new year and decade, the team at Jury Analyst sat down with Brian Panish, host of our podcast Get in the Game, to answer some listener questions. Brian is one of the country’s leading trial attorneys, so we’re grateful for his time and hope you find his tips as interesting as we do.
In our 2020 Q&A Brian considers a variety of topics. He recalls the top cases of the decade and how they changed the trial game. He reflects on how to retain young attorneys, how to win higher punitive damages and how to get over a tough courtroom loss. Coach also reacts to the ongoing college admissions scandal, the NFL’s concussion problems, the impeachment trial of President Trump and contemplates which of his past cases would make a great movie.
BP: Welcome, everyone. This is the first podcast for 2020 and many of the listeners have been writing in with questions, so today I’m going to answer questions that the listeners have sent in. I have some people here helping me today so why don’t we go with the first question.
Q: What’s your best advice for developing and retaining young attorneys?
BP: That’s a great question. I think most importantly first of all you have to find someone that’s the right fit, but then once you bring them into your firm, you have to have training. You have to make it exciting for them. You just don’t put them in the office and tell them to come out when they’ve researched or written some paper. You need to let them do many different things. You need to mentor them. Be kind but firm. And pay them well. And give them opportunity. Money obviously is a big deal. Many law students have significant loans and they have significant financial obligations. But you want to have someone that’s passionate about what they’re doing and the money isn’t everything, although it’s important.
Q: When you have punitive damages and you’re asking for close to $75 million, how do you handle the hesitancy of a jury to award that much money to a single plaintiff?
BP: Well, in a punitive damages case it all starts in the very beginning with the voir dire. And you start talking to jurors about what is the purpose of punitive damages, which is to punish someone for wrongdoing and also to deter others from doing it. And you have to make it about much more than an individual. And it’s not a windfall for one person. What it is is a punishment for bad conduct, but it’s more importantly used to deter others from doing that. So in the beginning if you’re asking for $75 million, whatever that figure is, obviously the company would have to be a large company to sustain a verdict of 75 million in punitive damages. And sometimes I might tell the jury at the very beginning, at the end of the day, when it’s time to discuss damages and what are called punitives, but they’re also called exemplary damages. And I make a point of saying exemplary damages are used to set an example. And that’s what you’re going to be doing. And you’re not to be concerned with the amount of the money, who’s paying it, if it ever gets paid. That’s not your job in this case. And if somebody brings that up, you need to tell the judge that they’re not following the law.
Q: This one I find particularly interesting because over the course of my career I’ve worked with both actresses, so I’m curious as to your reaction to the college admissions scandal.
BP: Well, as a parent who’s been through it, I would not be a good juror on the case. Now having been in the area where it happened, you know somebody called me up one time and said oh your daughter, two of the schools that she went to were involved in this, so she won the Daily Double. I said well no actually she had the Trifecta because people from her high school were also involved. So yeah, I mean it’s not a good thing but it shows you, especially in the areas where it happened you know, you have the west side of Los Angeles, Silicon Valley, South Orange County, a little bit in San Diego, La Jolla and then in New York, Connecticut and in Florida. Those are really the areas that you see it and I think part of it is stems from the parents’ competition, the parents wanting to live through their children, the parents wanting their children to do well, which is very admirable, but they blur those lines and they cross the lines and the kids end up being the ones that get hurt. Obviously some of the parents have been now charged. We’ll see what happens with the remaining cases. Obviously the big cases are still out there. We’ll see what Singer gets for his sentence. We’ll see what happens to Martin Fox, who was allegedly paying the test centers. He pled guilty. So I’m not surprised at all on what happened. I’m not surprised having raised my children in the west side of Los Angeles what parents will do, but it’s unfortunate and there should be better opportunities for kids to go to school. And I’m certainly a good example of you don’t have to go to an Ivy League school or or you don’t have to go to USC to be successful, and I think there are many good colleges out there for kids, and it’s all up to the individual. The school is not going to be the deciding factor of how you do in life. It’s an unfortunate thing and hopefully it won’t be happening anymore.
Q: Talk cases of the last decade that really changed the trial game.
BP: Wow, there’s so many I mean the pharmaceutical avenue where you go whether it be Vioxx, Actos, Mark Lanier multi-billion dollar verdict, Pinnacle, the hip, DePuy, ASR, Johnson & Johnson, you know multi-billion dollar verdicts there. I think what you’re seeing is the value increasing when you have a large company and a claim of an ongoing problem whether it be Round Up or Talc or ASR hips or Actos or Vioxx, that people are not afraid to substantially weigh in with a big verdict. And billion dollar verdicts are not a big deal. I know. I was fortunate to get a billion dollar verdict in 1999 and it hadn’t really happened. And everything saying well you think you’re gonna do that again? I go I don’t know if I’m gonna do again, but I think it’s gonna continue to happen. It took a while, but you’re seeing it and it’s not rare now that somebody gets a billion dollar verdict. I think values of verdicts have increased. Jurors are more aware of what’s going on in the world and they’re reading and obviously the internet is a huge educator of jurors. And lawyers are getting better. I think the plaintiff lawyers are getting much more skilled at putting on these cases, on doing a good job to quickly get to the point and convince jurors and persuade them to go in their favor.
Q: We’re sitting here in your office looking out at the Hollywood Hills, and we have a question about movie adaptations. What case of yours would make a great movie in the vein of the new Mark Ruffalo film “Dark Waters” about the DuPont water contamination case?
BP: Well actually I think those are the Santa Monica Mountains, but that’s okay. But actually I would say several. I think one of the first ones would be Anderson versus General Motors in 1999. A young African-American single mother of four children and her friend driving home from church on Christmas Eve stops to get some candy for the kids and some milk and has stopped at a red light rear-ended by a drunk driver. Gas tank explodes. Everyone’s horribly burned. And we get into the discovery and the documentation that General Motors had had a problem with the gas tank, yet they did an analysis that to change the design what that would cause versus the number of lawsuits. I think it was like nine dollars versus what they’re paying in the lawsuits, which was two hundred thousand. When they do the cost-benefit on human life, they decided it was cheaper to just fight the lawsuits than to make the design change and there are many characters and that so I think that would be a good “The Verdict” type movie. But I’ve had many other cases cut through ten versus the Metropolitan Transit Authority where Cameron Cuthbertson was a forty some year old African American blind individual, who was using the train, the red line which is an underground train in Los Angeles — actually the blue line is what he was on. And as a blind person they’re very dependent upon the transportation and as he went with his cane all on video looking for the door. They look for the light. And as he went, he stepped in between the cars and there was no barrier, no guard, and he fell down as he tried to get up the train basically cut him in half. And what was unique about that case was the blue line is the most traveled train in the LA County area and it serves the lower income areas, yet it’s the only area on the Metropolitan transit system that didn’t have guards in the gap. And some people would say that because they weren’t paying attention the people that live there, but all the other ones that went to Pasadena and the more wealthier, affluent areas, they all had guards on them whereas the other one didn’t. And there’s much that came out about that case and the blind community and things that matter. So I would love to do some movie someday. I really like legal movies. “The Verdict” is my favorite one though.
Q: How will California’s new law permitting convicted felons to serve on juries affect the justice system?
BP: I’m not really sure. I mean obviously felons were not allowed to sit on juries, so now they can. In a criminal case I kind of think that one or the other side may take the juror off once they disclose that, so I’m not sure what a big effect its gonna have. So I think the jury’s out so to speak.
Q: The future of SJQs and the voir dire process?
BP: So SJQs or supplemental jury questionnaire, which is allowed in California by most judges, which gives information. As a trial lawyer I think that the more information you can have, whether you represent the plaintiff or defendant, helps you make an informed decision on who the jurors are gonna be to decide your case. In California you’re supposed to be unrestricted, some judges allow less time. Each state is different. Federal court there is no voir dire usually. In California it may be minimal. But I think voir dire is the most important part of the case and if you’re not able to really dig into who your jurors are, you’re just in a blind shooting match and you don’t really have any idea what’s gonna happen.
Q: Got a question here that deals with someone who’s ever present in media right now, President Trump, and we’ve got a question about the impending impeachment trial and what strategy you would take if you were making the case?
BP: Well, I think the problem with impeachment is that the jury is already picked and the jury is probably not going to be favorable for impeachment, so I think the Democrats are gonna have to do their best. I think a lot of it is is posturing for the next election, and I think they want to put out as much as they can to make the president look bad. And it could be for a political motive, kind of like the Bill Clinton impeachment trial. I thought it was not gonna be successful but they went through it. So I think they got to really bring out the best stuff they have on President Trump. Maybe they’re getting more stuff, maybe they’re not. I obviously don’t think that he will be convicted in the impeachment trial.
Q: Talk about a courtroom loss and what it taught you?
BP: Wow. I mean I don’t like to talk about them too much, but they’re real and anyone that tries cases is gonna experience them. My father was a trial lawyer. He tried 500 cases. I was feeling pretty full of myself and he told me well when you try about 50 cases you’ll have a better idea. And I said well I’ve never lost a trial early in my career. He goes well you haven’t tried very many because any lawyer that tells you they haven’t lost a trial hasn’t done very many trials. And what I’ve learned is that there usually is a reason as to why you lost the case. There is either something you missed in preparation. Maybe you left on some jurors that you shouldn’t have, or maybe it just wasn’t a good case. And as I look back on some of the cases that I’ve lost, and not a lot of them, but there are some, I think that the key factor was it wasn’t a good case. And most cases that I lost I would say had I been better in case selection — now I didn’t take in all the cases that I lost — but I would argue that pretty much most of them I didn’t bring the case in. I tried the case. And what’s interesting, especially when I was a younger lawyer and I had tried harder cases, I always thought I would win the case. I always believed it and I always thought I was gonna win and I was kind of surprised I lost. But now when you sit back and you look at it it’s not surprised that I lost at all. So I think the thing that I’ve learned is: Better case selection and you’re gonna lose. And don’t let it destroy you. And I’ll tell you one other point, because people bring this up all the time, is I don’t think I had lost the trial in maybe 17 or 20 years and I lost the trial and it was an eight month trial. I was so worried what I was gonna feel like when I lost and what had happened I was ok with it. You know I did everything I could. Maybe the jurors weren’t the best, but I didn’t really have any choice about who I selected and I think I did a good job. Our team did a good job. The other lawyers were good that we were against. They did a good job. They must have had the better case and they won. But I was worried about how I was gonna feel about it and I think I felt pretty good. And I think I felt good because I knew I’d done everything I could and it was out of my hands.
Q: How do you decide what kind of cases to take on?
BP: We’re always look for three things. Number one, there has to be liability. Number two, the kind of cases we handle there needs to be significant damages. And number three, there needs to be somebody that you can collect from. So those are the three things. A lot of cases have big injuries and no insurance or nobody to sue or no deep pocket that’s responsible. Some cases have great liability, but the damages aren’t good. So I think it’s an art I think over time you get better and better at it but we take cases that don’t pan out and that happens but you don’t always know that at the beginning, not everybody’s being hit by a Brinks truck crossing the street on a green line in the crosswalk. I mean there are other a lot more difficult cases out there that are righteous cases that take more work that we handle. And that’s the way it is.
Q: I know you’re a big football fan, what do you make of these lawsuits pertaining to concussions in the NFL and in college football?
BP: I think they’re very difficult. I mean obviously I knew and I probably didn’t know the extent of the CT. I had concussions clearly, you know, multiple, both in high school and college. And I would do it again. I mean I loved it so much. I think most of the players that you see would probably do it again even now that they know the risks. Maybe the younger, the Pop Warner, the younger people may be it is different. I do see a lot less people, a lot of parents are not allowing kids to play football. There’s a lot less kids in football. The numbers are way down in high schools and they’re choosing other sports ,which is fine. But I think they’re difficult cases particularly the NFL. I know they were reached a settlement, but there were so many hurdles of workers comp and assumption of the risk and which concussion caused the CT. Was it when you were in high school, was it when you’re in Pop Warner, was it when you were in college, was it in the NFL? How do you prove it and I think they’re very difficult cases to prove. I’m glad for the former players’ sake that they were able to get some money. Obviously it’s not a lot for a lot of people, but it was a very difficult case. The lawyers did a good job for the clients in that case.
Q: Rule changes?
BP: I think the game, the rules, the head with the contact with the crown of the helmet on a defenseless runner, I think those are good things for the game. Sometimes I see hits that I say wow that was a great hitting but they gave him a penalty and kicked him out of the game. But with the extent of the injuries that have occurred and we can see the evidence now. It’s pretty self-evident about the CTE, that I think it’s a good development. I think it’s a great game, not only for the competitive aspects but for the life lessons that young kids learn. To be part of a team, 11 people on the field at once, everyone has a job to do, everyone has to do their duty and if one person lets the team or doesn’t do their assignment, the play will fail. So you have to rely on other people, you have to be disciplined, you have to execute, you have to be accountable and it’s been great for me in my life, the life lessons I’ve learned.