Lessons from the Trial Trenches: How to Avoid Large Adverse Verdicts

The Spotlight had a chance to sit down with Robins Kaplan trial attorney Mike Collyard after his historic and latest trial result—the largest verdict in the State of Minnesota—to glean some practical advice on how companies and those in positions of trust can avoid massive (or even moderate) liability that Mike’s adversaries have endured.

The Spotlight: Mike, some of your cases involve scenarios where there is not one evil mastermind to blame, but rather a series of repeated failings by a number of people that add up to serious liabilities. Can you explain some of those scenarios and how that could happen?

Collyard: When we are the plaintiff suing another company, we always want to make the corporate defendant the bad guy (not its individual employees). Juries will punish companies for doing bad (or stupid) things, but human nature is to be more forgiving of an individual or two who did something wrong or fell short of a standard. And jurors might be able to relate to those individuals when they tell their story on the stand. So we try to take the individual failings as a whole and make them part of a systematic business problem that we can blame the company for. That gives you a far better shot at a bigger damages pool when you tell your plaintiff-side story to a jury who is generally less sympathetic to corporations. 

The Spotlight: Based on what you’ve learned in those cases, how would you advise your clients and others to mitigate the risks of those scenarios occurring on their watch?

Collyard: In defending a case, it’s just the opposite. We often use the individual employees to be the company’s face. Use a sympathetic employee who jurors can relate to who can tell the company’s story. This gives the company a persona that the jurors can connect with and not want to punish. Also, make sure your employees are following good guidelines and policies. If employees are doing that, it gives you a better chance of telling a story about how the company always chose to do the right thing and the individuals were doing exactly what they were told. Jurors can easily relate to that type of story and defense. 

The Spotlight: You’ve also been able to capitalize on missteps of your adversaries during the litigation process. Can you describe how companies can make their situation worse and what they should do to avoid that fate?

Collyard: There are easily three parts to this: a court part, a jury part, and a discovery part. First, always maintain credibility with the court. We often decide early on to not fight certain things and to only fight things we win. So every time we speak, we win. That creates credibility with the court, and the court knows we’re right every time we speak. The court knows when you’re being reasonable and will appreciate it. That will pay off throughout the case when it comes time for the court to make hard decisions.

Second, create credibility with jurors through your witnesses. Teach your witnesses how to properly give testimony during depositions and at trial. Teach them to not say things like “I don’t recall” after an objection. Instead, teach them a factual story to tell, and, if the question calls for something they don’t exactly remember, have them say something like “I knew that before, but I can’t think of it sitting here right now without having my computer.” That keeps the door open for them to fix that testimony later and maintains credibility so they can’t be impeached. They look like they’re being helpful and not hiding something from the jury.

Third, don’t be your worst enemy in discovery. There are so many ways to get in the way of yourself during discovery. The biggest example is document preservation and production. Preserve documents and produce documents. Don’t be afraid of producing documents. As a plaintiff, you can make so much out of a defendant not preserving or producing documents. Have the big picture in mind no matter which side of the case you’re on, and don’t get too greedy where you get caught withholding things because you just don’t want to produce them. We like to go in with a “we have nothing to hide” approach if possible and really only fight on the most sensitive issues. Taking the opposite approach can be very detrimental. In my most recent trial, we were able to obtain an adverse-inference instruction due to the other side’s destruction of evidence and repeated misrepresentations about it to the court. That played right into our narrative about the defendant being the bad guy and gave us a tremendous advantage at trial.

The Spotlight: You’ve handled cases where trust and duty can play a key role in your trial themes. Explain why that can be effective and what companies can do to increase their chances of having those themes work in their favor?

Collyard: Choices and taking responsibility are always good themes on both sides of the “v,” depending how you spin it. So we like to position ourselves to be able to say our client chose to do the right thing and our client takes responsibility, while the bad guys chose to do the wrong thing and refuse to take responsibility. You say it like “you could have done this, but you chose not to.” So help yourself out by creating a culture that not only has good policies and procedures but supports your people in sticking to them. That can give you a solid foundation to incorporate these themes throughout your trial story, and these are both themes that sell easily.