Causation Queries & Pre-complaint Negotiation
We recently settled a case involving a product defect with a peculiar mechanism of injury. I say peculiar because until our case, the defendant manufacturer purportedly had never received a complaint alleging a similar factual instance as our injury.
That's a tough place to be as a plaintiff in a product liability action: the first instance. And undoubtedly you are going to have a hard time getting the defendant to be reasonable unless you go forward with a lawsuit. The issue there is, as everyone in this area of law knows, going full steam ahead on a product liability suit can be very expensive... so expensive that unless your damages are severe you will have a hard time making he case cost effective for your client. So what do you do then? Here's what we did. And surprisingly, it worked!
First, we tried to find legal issues where we happened to be in the know and the other side was in the dark. Product liability is full of these "esoteric" issues and a smart plaintiff can usually spot three or four right at the start of the case. You absolutely MUST do this if you have a case with small"ish" damages. Defendant manufacturers save their best legal talent for the biggest cases. The hacks get the small fish, and the hacks usually haven't done the homework on your particular factual situation. If you find three or four esoteric legal issues in your claim, you can bet that at least one of them is completely unknown to the other side. Unknown, relevant information is power in a pre-complaint setting.
Second, we tried as best we could to predict what the other side DID know, and how they would interpret the "new" information once revealed. This is the easiest part of the process. Just call up opposing counsel, have them over for lunch, or send them a pleasant email where you happen to drop the factual setting into a hypothetical where the only solution is the esoteric legal issue which you've found. I bet you'll find that your hypothesis that opposing counsel is unfamiliar with the issue confirmed by whatever response they proffer. But if you like, spell it out for them... give them the FALSE answer, and see if they agree? Are they generally agreeable to the false proposition? Or are they hot to trot on it? (BEWARE: a defense attorney who is quick to take up a dubious position could be laying the same trap for you... so what you want is general assent, not specific assent).
Third, we did as solid a powerpoint presentation as we could muster. Had it ready to go WELL before the pre-complaint negotiation (there's always the chance that the information will be learned by the other side prior to mediation). We started that presentation off with our conclusion... a conclusion that could only be true if one happened to know the esoteric issue and how it plays out.
Fourth, we went ahead and let defense counsel know about the issue a little bit ahead of time... a week or two before the mediation. The reason for this is twofold: first, we decided that our client would gain nothing by having us embarrass defense counsel in front of their client, which is exactly what we'd be doing if you waited to "spring" this on them at the mediation in a powerpoint presentation. All that those sort of "surprises" do is engender some ill will between us and the defense attorney, thereby making a good resolution for our client even more difficult to attain. Second, we wanted to give defense counsel a chance to find out two things: (a) through their legal research prompted by this new information they learned that we aren't fools, and that our legal analysis is spot on; and (b) they learned that there are ways to combat our legal issue... i.e., they found defenses.
You are probably wondering right now why I'm telling you that I purposely gave defense a chance to find defenses prior to a mediation. The reason is simple: when the law is foreign, and seems counter to what you originally believed, the simplest and easiest way to attack a cause of action is to discredit its causal hypothesis.... i.e., go after causation. It is almost human nature, I believe, that we do this. Why were you speeding? I wasn't, your radar gun is malfunctioning. Why were you late? I wasn't, your clock is broken. Why was my client injured by your defective product? He wasn't, it was something else that injured him.
Like one of Pavlov's dogs, an attorney facing new theory of liability will almost instantaneously attack causation first and foremost. And if they do that to you, like they did to us, you sit back, smile, and calmly say:
"I understand your position, and your hypothesis, but you have to understand that if all we have at the end of the day is a different mechanism of injury, that issue will go to the jury and we're comfortable with that."
Case settled.
That's a tough place to be as a plaintiff in a product liability action: the first instance. And undoubtedly you are going to have a hard time getting the defendant to be reasonable unless you go forward with a lawsuit. The issue there is, as everyone in this area of law knows, going full steam ahead on a product liability suit can be very expensive... so expensive that unless your damages are severe you will have a hard time making he case cost effective for your client. So what do you do then? Here's what we did. And surprisingly, it worked!
First, we tried to find legal issues where we happened to be in the know and the other side was in the dark. Product liability is full of these "esoteric" issues and a smart plaintiff can usually spot three or four right at the start of the case. You absolutely MUST do this if you have a case with small"ish" damages. Defendant manufacturers save their best legal talent for the biggest cases. The hacks get the small fish, and the hacks usually haven't done the homework on your particular factual situation. If you find three or four esoteric legal issues in your claim, you can bet that at least one of them is completely unknown to the other side. Unknown, relevant information is power in a pre-complaint setting.
Second, we tried as best we could to predict what the other side DID know, and how they would interpret the "new" information once revealed. This is the easiest part of the process. Just call up opposing counsel, have them over for lunch, or send them a pleasant email where you happen to drop the factual setting into a hypothetical where the only solution is the esoteric legal issue which you've found. I bet you'll find that your hypothesis that opposing counsel is unfamiliar with the issue confirmed by whatever response they proffer. But if you like, spell it out for them... give them the FALSE answer, and see if they agree? Are they generally agreeable to the false proposition? Or are they hot to trot on it? (BEWARE: a defense attorney who is quick to take up a dubious position could be laying the same trap for you... so what you want is general assent, not specific assent).
Third, we did as solid a powerpoint presentation as we could muster. Had it ready to go WELL before the pre-complaint negotiation (there's always the chance that the information will be learned by the other side prior to mediation). We started that presentation off with our conclusion... a conclusion that could only be true if one happened to know the esoteric issue and how it plays out.
Fourth, we went ahead and let defense counsel know about the issue a little bit ahead of time... a week or two before the mediation. The reason for this is twofold: first, we decided that our client would gain nothing by having us embarrass defense counsel in front of their client, which is exactly what we'd be doing if you waited to "spring" this on them at the mediation in a powerpoint presentation. All that those sort of "surprises" do is engender some ill will between us and the defense attorney, thereby making a good resolution for our client even more difficult to attain. Second, we wanted to give defense counsel a chance to find out two things: (a) through their legal research prompted by this new information they learned that we aren't fools, and that our legal analysis is spot on; and (b) they learned that there are ways to combat our legal issue... i.e., they found defenses.
You are probably wondering right now why I'm telling you that I purposely gave defense a chance to find defenses prior to a mediation. The reason is simple: when the law is foreign, and seems counter to what you originally believed, the simplest and easiest way to attack a cause of action is to discredit its causal hypothesis.... i.e., go after causation. It is almost human nature, I believe, that we do this. Why were you speeding? I wasn't, your radar gun is malfunctioning. Why were you late? I wasn't, your clock is broken. Why was my client injured by your defective product? He wasn't, it was something else that injured him.
Like one of Pavlov's dogs, an attorney facing new theory of liability will almost instantaneously attack causation first and foremost. And if they do that to you, like they did to us, you sit back, smile, and calmly say:
"I understand your position, and your hypothesis, but you have to understand that if all we have at the end of the day is a different mechanism of injury, that issue will go to the jury and we're comfortable with that."
Case settled.
