The Villain/Outlier Defendant

 

In early posts we introduced the concept of Personal Injury as Tragedy. The elements of personal injury as tragedy are: Hero (an honest plaintiff), Adversity (the injury), Attempting to Overcome Adversity (necessary medical treatment), and 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 in today’s legal climate the jury is conditioned by insurance propaganda to mistrust the injured plaintiff and her lawyer. Often the fact we have an honest legitimately injured plaintiff is not enough. In todays legal climate we must recognize the jury may not care about our plaintiff.

So what do jurors care about? The answer is themselves. In other words jurors consciously and subconsciously want to know “What’s in it for Me.” This means jurors respond when we demonstrate both 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.

By villain we me an outlier defendant. 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 quality such that jurors do not see themselves engaging in defendant’s conduct which is seen as unsafe and stupid. (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 we need an outlier hospital that engages in conduct other hospitals would not do 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 potential patients.

Outlier corporate defendants must be guilty of conduct that violates rules other like kind corporations would not and do not violate. It is also important for the outlier defendant to show no remorse and even better when the lawyer is stupid enough to try to justify or deny the conduct.

This villain/outlier defendant concept has some likeness to the “reptile” concept as taught by David Ball and Don Keenan.  We get what Ball and Keenan teach and respect them. But we think the “reptile” is too simplistic as it fails to address the emotional part of our thought process which is where lasting memories and beliefs come from.

The point is jurors need more than an injured plaintiff whenever the injured plaintiff appears to look OK. This is because most jurors do not care about our injured plaintiff. When jurors recognize a combination of outlier defendant conduct giving rise to hurting our plaintiff they see this as a problem that they should address. This is because the conduct is outside of what they would do and they could be harmed by this type of conduct. It is their civic duty to do something about it and this benefits them.

 

 

 

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