The Villain/Outlier Defendant


 The elements of personal injury  tragedy are:  1) Hero (honest plaintiff); 2) Adversity  (injury); 3) Attempting to Overcome Adversity (necessary medical treatment); and, 4) Inability to Overcome (permanent injuries). This formula emphasizes the injured plaintiff.

Although the formula is essential for the jury to relate to our injured plaintiff it fails to recognize a legal climate where the jury mistrusts the injured plaintiff and lawyer. We must recognize the need for more than a tragic plaintiff.

We all care about ourselves and jurors are no exception. jurors consciously and subconsciously want to know “What’s in it for Me.” Jurors respond when we demonstrate the elements of tragedy and a reason to compensate plaintiff that benefits jurors. Here the introduction of a villain completes the equation that leads to a willingness to act through a decent verdict.

An outlier defendant is a villain.  Outlier defendants in a car collision case include DUI drivers, drivers texting going into the crash, and high speed drivers. Drivers doing something going into the collision that has no redeeming value to the community as the conduct is unsafe and dangerous. (The DUI defendant is made known to the jury in an admitted liability case when plaintiff has anxiety, PTSD, or a psychological reaction based on defendant’s outlier conduct).

In a medical malpractice case against a hospital an outlier hospital  engages in conduct other hospitals would not because of patient safety considerations. The same is true when defendant is a medical doctor. The jury must see the doctor as one whose conduct is dangerous to plaintiff and to other patients in the community.

Outlier corporate defendants are guilty of conduct that violates rules ethical corporations would not violate. When the outlier defendant lacks remorse and even better when defense tries to justify the conduct a significant verdict will result.

The combination of an outlier defendant harming a tragic plaintiff results in a problem jurors  as the voice of the community must address. The conduct is outside of community standards and jurors as the voice of the community vote with their verdict. 




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