Rick Braun, Partner in the Detroit office of Hawkins Parnell and Young, LLP talks with CSI Litigation Consultant Dr. Steve Wood about toxic tort cases, how the media portrays these types of cases and how these portrayals impact defending toxic tort cases. They discuss the influence of pop culture, infotainment, “pseudo-science”, and plaintiff attorney TV advertising on the perceptions of the jury pool and how defense attorneys need to prepare to defend against these influences. Additional topics include the importance of a credible narrative for your case, the criticality of a well-trained corporate representative and expert witnesses, and the value of focus groups and mock trial research to drive strategic decisions about your case, and more.
Full Episode Transcript
[00:05] Steve All right. Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences Inc. and here today to talk to me more about how the media portrays these toxic tort cases is Rick Braun. Rick Braun is a partner at Hawkins Parnell. Thanks, Rick, for joining the podcast. I’m happy to have you on. We’ve been trying to get you on, so I’m glad we were able to get you today.
[00:27] Rick Yeah, thanks very much for having me. I’m—I’m really looking forward to it.
[00:31] Steve Good. So, Rick, when we initially kind of talked about this topic, this is one of the things that you brought up to me was that these movies and television programs and that give the plaintiff a narrative advantage early on in the case, even at jury selection. Can you talk to the viewers and the listeners a little bit more about what you meant by that?
[00:51] Rick Yeah, sure. Um, you know, I think oftentimes when we are on the, um, defense side especially, we view—um, well, first of all, and just to back up, you know, as a trial lawyer, you’re first and foremost a storyteller in my opinion. And on the defense side, I think we get to start to tell our story in our minds, um, you know, maybe during jury selection a little bit, we get some of it in there, um, certainly during opening, but really never before we get to court.
And, you know, I think the trend that I’ve been seeing over, uh, the past few years is that the plaintiff’s lawyers are actually getting their story out there before the summons even goes out for jury duty. And, um, you know, one of the things you mentioned was, um, I guess kind of like the—the pop culture, um, narrative that’s out there. And, you know, if you look at any, frankly, any lawyer movie, they all kind of follow that same principle. Uh, like Dark Waters, which was, you know, as you mentioned, it’s—it’s a farmer versus the big chemical company.
Um, but you know, just off the top of my head, I mean, I think of in the early ’80s, there was The Verdict with Paul Newman, uh, going against James Mason as the tough, you know, um, defense lawyer who kind of had it in with the judge a little bit. Um, A Civil Action with John Travolta—it was, um, again, it was a groundwater contamination case at a leather production site. Erin Brockovich was, you know, a very popular, popular movie, and what was that one about again? It was chemicals in the drinking water. And they all kind of follow this, uh, like David versus Goliath narrative.
And part of the reason that they do that is because that’s an interesting narrative. I mean, I think we’ve followed that, um, that story throughout history from the original David and Goliath all the way up to, you know, um, you see it in sports all the time. I mean, it’s why Buster Douglas versus Mike Tyson was just so interesting.
[03:04] Steve Right. Exactly, exactly.
[03:07] Rick The 1980 hockey team—I don’t think anybody was rooting for the Soviet Union in that one. Um, it was always about the plucky upstart. So, you know, there’s that—it’s almost baked into the jury pool, uh, that this is an interesting story. That this, um, David versus Goliath and this, um, person who’s been harmed by this, uh, monolith, uh, company.
But we also, and you know, that’s frankly, that’s nothing that, um, any plaintiff’s firm, plaintiff’s lawyer is doing. That’s just something that’s out in the pop culture. But I think some of the other things that we also see are the, um, a lot of the TV ads. Um, right now, um, plaintiff’s lawyers are very, um, good about getting their message out just through their TV ads. And I think people, uh, who are—are uninitiated to that process often will—will, um, assume they know something about it because they saw the TV ad. And they’ve even gone more than just kind of a 30-second spot; there’s the infomercials out there now. One of which, which shows here in the Detroit area on local TV, is called, uh, “Did Asbestos Cause My Cancer?” And it’s set up almost as like a—a talk show.
So if someone were to tune in and take a look at that, they might think it’s an actual news show when it’s, in fact, an advertisement. Um, and just one of the other ways I—I’ve found over the years that, um—and again, this isn’t anything more than—um, this isn’t anybody, anything that any plaintiff’s firm or plaintiff’s lawyer is doing, but I think a lot of times you see in the news reports on what they call, you know, studies. And it can have the effect of undermining what is, you know, good, hard science.
And, you know, the example I think of with that is how many different times you have—have you heard that coffee is either the greatest thing you can drink or is killing you. Um, and you know, I—I—it’s funny, before this I actually wrote down a few, um, things that were on, you know, like shows like The Today Show in the morning. And again, that’s not news. It’s kind of this hybrid, hybrid, uh, news and entertainment thing. I—I call it “infotainment.” You know, it’s like you’re getting a little bit of info, but it really doesn’t go in that depth.
Some of them that I’ve seen recently: “New studies show sugar could cause cancer.” “New studies show late-night snacking could damage the part of your brain that creates and stores memory.” “A new study shows that hugging your dog is bad for your dog.” And “New studies show a glass of red wine is just as good as an hour at the gym.” I haven’t read those studies, but something tells me that’s not what those studies actually say.
And there’s one that I actually, I did pull out, um, and did read the study. And it was titled, and it was reported in the news, “A Possible Link Between Autism and Glyphosate.” Read the study, and this is a quote from the study: it says, “We recognize that this paper is speculative.” So there really is complete speculation on their part, but when it’s reported in the news, it’s “A Possible Link Between Autism and Glyphosate” with no real, uh, you know, look into what the actual science is behind it.
So from our side, you know, the defense side, especially in a toxic tort case and asbestos case, we are really trying to dig into the science. And, you know, you’ve got all these kind of forces that are influencing your jury pool before they even show up for court.
[07:02] Steve Right. And that’s, you know, from a psychological perspective, it makes total sense. We—we talked before about this kind of idea of a cognitive schema being this—for those who don’t know, it’s a mental construct or a mental concept of a topic. So for example, you know, you and I are both Michigan State basketball fans, and if I say Michigan State basketball, it brings to mind probably Midnight Madness, you know, Tom Izzo flying down off the zipline or coming in as Iron Man or all these different things. You know, basketball season, March Madness—it brings to mind all these different aspects and elements just by me saying “Michigan State basketball.”
And the same thing I could think for—for those who are listening, if you could put it into perspective, if I were to say “plaintiff juror,” I know a lot of attorneys on the defense side have an idea of what a plaintiff juror looks like, right? And I think in these situations, to what your point is, is that these movies, televisions, and all these articles and that give these people this cognitive schema of the big, bad corporation who’s going out there and knowingly poisoning people.
So then when they come into trial, they bring with them these thoughts. So when they hear, “Oh, this is, you know, an asbestos case,” all of a sudden, bing, it goes off in their head that they have this idea of, to what your point was, the David and Goliath of the seedy corporation who sits in their ivory tower, you know, and—and knowingly does these terrible things to people. And then when it comes out, they try to hide things and brush it under the rug, which then, as you said, makes your life a lot more difficult as far as trying to develop a narrative that’s more beneficial to your case.
So I guess the question really then is, from your perspective, what can attorneys do on the defense side to make a—an attempt to change that narrative early in the case, or just in general to—to thwart this idea that jurors typically have when they come in the courtroom?
[09:00] Rick Yeah, I think you know, some of the things, uh, that we can do on our side—and you know, it does, all those things do make the defense side, uh, more difficult. And I’ve even heard a plaintiff’s lawyer say at a conference that, you know, in a—in a mesothelioma case, the plaintiff’s lawyers are born on third base. Now, they still have to do work to get home, but, um, you know, they recognize that there’s certain aspects of that case that give them an advantage even though they have the burden of proof.
Um, so you know, some of the things that I—I feel like in my experience have stood out to me is, I think you’ve got to understand what we just talked about first. You know, you’ve got to know that you’re in that game before you can, um, start to fight back. Um, so you’ve got to know that there are those things that you’re up against. And I’ve even, you know, considered the, uh, making it part of an opening what I just read you about the possible link between autism and glyphosate, where, you know, you might hear a headline, you might hear a—a snippet on a news report, but until you get into the actual details of it where they say, “We—we recognize this paper as speculative,” you don’t know what it’s about.
So because it’s important, you know, obviously jurors, as long as they can set any bias aside, they’re okay to be a juror. Um, we can’t ask somebody to, you know, emerge from a hole in the ground and then sit on a jury. I mean, we’re all going to bring these kinds of things into the courtroom. So as long as they—we recognize what’s happening and we can get them to recognize what may be happening, I think we can go from there.
The other thing that I think on the defense side that we need to do is, um, develop your own narrative and—and do it in a way that’s credible. Um, and you know, I know you’ve done a lot of work on attorney credibility. And you know, one of the things that I’ve found makes for a credible presentation and credible attorney is to make concessions where concessions are appropriate. Um, you know, I think we all want to go down fighting sometimes, but there are some battles that are better left unfought. And, you know, if—if it’s going to sacrifice your credibility with the jury, um, maybe you just make a concession on—on some point. Uh, that’s not to say we’re not going to try the case and we’re not going to, you know, go all out for the client, but there are certain points that you can probably concede in a case.
Um, the other thing is—and again, I know this is something that you know you do and that CSI does—you have to have a good corporate rep. Um, because you know, you guys see it in cases outside the asbestos context, but we certainly see it in the asbestos, uh, toxic tort context where, um, you know, the reptile tactics used to try and beat up the—the corporate rep. Um, that’s, you know, where plaintiffs are trying to win at the deposition and at the deposition of your corporate rep.
So you’ve got to be ready, in my opinion, to, um, put in the time and the money and the effort, uh, to have, you know, your good corporate rep and then maybe even the next corporate rep. Um, because folks are going to retire, uh, you know, maybe just not want to do that role anymore because it is—it is a hard job. Um, so have, you know, your number one guy or woman and your plan B.
And the other thing, I think, because we’re going to tell—especially in cases that are heavily science, um, related like a toxic tort case—you got to have credible experts. Um, obviously, you know, the attack is always going to be, um, from the plaintiff side, that the defense, the companies are trying to buy the science. I think if you have credible experts, uh, who are scientists who are interested in teaching the jury, that, um, you’re going to be able to tell your client’s story.
[13:11] Steve I think that’s perfect. That you said a couple things you said on there that I think are spot on. One with the corporate rep, because right, that’s going to be the face of the organization that’s going to be sitting there day in and day out, more—more often than not at council’s table, that people are going to be looking at. And if they don’t portray themselves credibly, not only just on the stand but just throughout the case, then it’s going to help those jurors who are waiting to see that, “Oh, the shady corporation.” They’re going to be pulling information, anything out that they can use to say, “Okay, I knew it. I knew it. They were—they were trying to show their good corporate story, but I knew these people were shady all along.”
Um, and I think the other thing you said as well is that the credible experts who teach, I think, is another important thing that a lot of times gets lost with witnesses is that, you know, we talk about how jurors are hearing this information for the first time. And jurors essentially, even when it’s really complicated science like it is in toxic tort cases, they want to understand, right? I mean, they don’t come in with much professional knowledge, but they want to understand, and they will appreciate a expert who takes the time to basically teach them and then do it in such a way as to say, “I know this is—this is high level, I know this is really difficult, but I want you—I truly want you to understand the information that I’m saying,” right?
But this is a—which is a clear difference between when jurors think that an expert’s talking down to them versus when they feel like a expert is truly trying to reach out and make sure that they understand it. So I think those are two really good key points. I think that would help with that narrative, to help spin it and show that defense counsel and the defense itself is—is attempting to portray a credible narrative that counteracts what the plaintiff is—is showing.
[14:58] Rick And then I think, you know, when—when you’ve got those things, you’ve got to, um, be willing to test them, you know? And I think really, I—I would—I would love to see, um, you know, more focus groups and—and mock juries done, uh, in—in those kinds of situations. Because, you know, I—I’ve actually—I’ve worked on a case with you and—and with, um, CSI, and I’ve seen the effect and the, um, you know, the additional information that can be gleaned from those.
And you know, I actually tell this story all the time about, um, the mock focus group that we did where, um, you know, as lawyers we always kind of think we can read people and, you know, we’re, “Oh, this guy’s good for us, this—this woman’s not good for us.” This, you know—and in this particular one that we did, um, there was a guy that through two days just sat there and did not take a single note and just stared off into space. And, um, you know, I think we all kind of thought, like, this guy’s not even paying attention.
But then when we got to the, um, you know, I guess kind of a debrief of the—the mock jury, this guy knew every single detail of everything that everybody said. And you know, he was just like, “I—I just have”—like, he didn’t say he had a photographic memory; he’s just like, “I just remember things, I don’t need to write them down.” And you know, if you had looked at the demographic information, uh, on this guy, and if you had looked at the way he acted throughout the presentations, you would have written him off immediately. When the reality was, if he was an actual juror, he probably would have been the foreman.
[16:39] Steve Yeah, I think that’s a good point. And I think that goes back to what I was saying before is that we all have concepts of what a plaintiff juror looks like, but the fact of the matter is it’s not always true. I mean, like you said, in that situation where you would have written him off, come to find out he would have been more of a defense juror.
And—and I think your point is—is valid as well as far as we would like to see more attorneys get involved with these focus groups, trying to develop and find out what narratives fit. I mean, I can’t tell you how many times we worked on just damages only cases where it’s been trying to figure out what’s the number that we can give that’s not going to inflame jurors, or what’s going to be too high or what’s going to be too low. Or we have a couple different theories of the case that we want to run with, and one of them might be where we push more responsibility onto the plaintiff and we find out if that’s not a tactic that can work, versus we need to pull back a little bit and not put so much on the plaintiff.
And I think at trial is—is not a place to learn that you did it wrong. It’s not a place to learn that the guy who didn’t take a note or didn’t engage himself at all during your voir dire all of a sudden would have been the foreman and he would have been someone who’s positive to the case. So, I think it’s very good to—to be able to do that, at least to go in and have some knowledge, right, and be informed before you go into trial.
And speaking of that, I think that’s actually a good segue into another topic that I wanted to talk to you about is that I know there’s concern or there’s—there’s talk amongst the more seasoned attorneys about how they can bring up this newer generation of attorneys when there’s not a lot of trials that are going on, right? It’s not a lot of time for them to be able to get experience in front of juries in a courtroom. So talk to me a little bit about that. How—how do you see the—the people who are in your position, the partners who have been, you know, doing this for a lot longer, how do you see yourself as kind of mentoring those younger generation of attorneys?
[18:37] Rick Yeah, this is a, you know, a really interesting area to me, uh, especially on our side, um, and, um, this is also—it’s not just from our law firm’s perspective, uh, this is our clients that are saying this, you know, that—that are like, “I—I know who my, uh, trial lawyer is for the next five years, but, you know, and then 15 years from now I start to get worried about, um, who it’s going to be.” Because you’re exactly right—fewer and fewer cases are being tried, um, whether because of tort reform or because of, you know, the rise in alternative dispute resolution, we get—we’ve got fewer and fewer cases that are going to verdict.
And, um, I—I look at this issue from two different perspectives. And first, that is of the defense firm and, you know, what can we do to, um, have a next generation? And again, you know, like I said with the—the issue with the narrative is first you gotta understand that it’s a problem. You know, you’ve got to have buy-in with your partners or in your office of your firm. Because, you know, like the firm I’m at, Hawkins Parnell, we’ve got, um, 10 offices all over the, uh, country. You know, we’ve tried cases, I think, in 40 jurisdictions. Um, you know, I think it behooves each office and—and each, um, area of the country to kind of get involved in that in the way that it works for them.
Um, and I think, you know—and I’ve sat on a lot of, um, interviews with young lawyers. I have been part of a recruiting committee, uh, I used to do on-campus interviews at law schools—I personally think it starts there. It starts with who you’re bringing in the door. I think sometimes we look at the resumes and the transcripts and we can kind of fall in love with the grade point average and the Law Review, and those are important things and they’re great. But you know, if there’s somebody who is also, you know, working full-time in sales and grinding it out and going to law school at night, and maybe they’ve got a three-point—not, you know, a 3.7—I think that person’s probably knows how to work hard, and I think they probably know how to relate to people. And, um, as you look at the next generation of trial lawyers, I think it’s—it’s—the gateway function is as important as what we do once we get them in the door.
Um, and then once we get them in the door, it’s how do we train them. I think you got to look for opportunities to get, um, young lawyers up on their feet. And, you know, I know in—in the toxic tort trial, maybe an asbestos trial, there might be some deposition read-ins—that’s a perfect opportunity to get a young lawyer. You know, they’re just reading in testimony, but they’re on their feet and they’re in front of the jury, they’re in front of the judge. Um, it’s just something to get their feet wet.
Um, I think also, you know, you can do in-house training which is—which could be, you know, “Hey, why don’t—I’m gonna go take the deposition of Dr. So-and-So. Why don’t you, uh, you know, come up with what I should—here’s the report—um, take a week, come up with what I should say.” Now, you know, am I going to necessarily use those questions? I might use some, but I can at least get them thinking about where we should attack this witness. Then afterwards, uh, you know, we can go over it together. So I mean, I think the first thing is is how you’re getting them in the door, and then the second thing is, um, an interest in actually getting them trained up.
[22:30] Steve That’s good, yeah. And I—I applaud you for that because I know some people might be a little bit weary to do that, but I think, like you said to your point, that that would be beneficial both to—to the firm, to the client, and I’m sure you would have a lot more buy-in as far as appreciation from those younger associate attorneys that they’re getting this opportunity and feeling like they’re—they’re a part of the team. So I think—I think that’s good.
[22:54] Rick Well, and you know, those sound like high-minded benevolent ideas, um, but they are also help the bottom line. They also help our clients, and that’s, you know, part of what we’re doing here, uh, is—is we’re running a business. But, you know, more importantly, we are serving our clients, and I think this is part of client service. And it also, it makes me a better lawyer, uh, you know, if I’ve got some—uh, somebody that I can teach or help out or get to think a different way, who might look at a problem in a new way that I might, you know, have not thought of. So I think it helps me be a better lawyer.
Um, and you know, the other way I look at this—this issue is, um—and you know, again, I—I’ve interviewed a lot of young lawyers, and they always ask if there’s any sort of mentoring. And, um, I would always say that is a two-way street. Yes, somebody has to take the responsibility to mentor a young lawyer, but the young lawyer also has to think about being—how they can be a good mentee. And, you know, it’s ultimately it’s their career, and they should be thinking about things that they can do to—recognizing there’s not a lot of jury trials, especially right now in the—in the COVID, uh, era that we’re in.
Um, but look for opportunities. I—I can tell you when I was in law school, uh, here in Michigan, we have something called the Student Practice Rule where if you worked for a prosecutor’s office or a public defender’s office, you could go into court on the record. And I was trying cases in law school, um, and that was probably the best experience I could have had. It was better than, you know, a trial practice, uh, seminar; it was better than reviewing documents for a law firm over the summer. I was up on my feet and, um, you know, got verdicts. And I did it before I even had my bar card. So, you know, look for those opportunities if you’re a young lawyer and if you want to be a trial lawyer someday. Maybe that’s a better fit for you than taking the law firm job for the summer.
[25:07] Steve Yeah.
[25:09] Rick Yeah, and I was—I was going to say, you know, if you’re a young lawyer, look for any opportunity you can to get up on your feet. Um, there’s oftentimes, you know, the email will go around the defense firm, “Hey, I’ve got a motion on Friday, but I’ve got a conflict, can anybody take it?” Volunteer for every one of those. You know, I mean, the more you can get in court, the better. And the more you can get on your feet, the better.
If those opportunities don’t come up, uh, speak at conferences. Um, you know, some of the better speaking experiences I’ve had—and I mean that in the sense that things went wrong—when I was speaking, for example, my PowerPoint dying. And I was happy to have done that at a conference rather than in front of a jury. And, you know, you develop a thick skin and, um, how you’re going to roll with things, and you also develop your voice when you’re doing things like that.
[26:04] Steve Great, good insight. Uh, I’m glad—I’m glad we were able to get you on to pick your brain on these topics. So for those people who are—are listening or watching this podcast, how can they get ahold of you? Whether it be clients or any other attorneys or any younger attorneys that want to get ahold of you, how can they get ahold of you?
[26:21] Rick Sure. Um, you know, I’m on—again, I’m at Hawkins Parnell and Young in the—I’m out of the Detroit office. Shoot me an email: rbraun@hpylaw.com. Um, if you are a law student, young lawyer, um, anybody, give me a—shoot me an email. I’m—I’ll always respond, um, and I’m always available.
[26:46] Steve All right, great. Thanks, Rick. And I’m Steve Wood at Courtroom Sciences. If you need to get ahold of me, at swood@courtroomsciences.com. As I said, this has been another episode of the Litigation Podcast. And I’m, uh, glad that you came on here, Rick, and I—I—I look forward to having you on again to talk about some new topics.
[27:06] Rick Sounds good. Anytime. Thanks.
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