Motions In Limine: An Effective Tool to Combat Excessive Verdicts
September, 2004
The Clausen Miller Appellate Practice Group, which is often retained at the conclusion of a trial gone bad, can usually identify the reason for the excessive award. Often the cause is misconduct of the plaintiff’s attorney and that can provide a viable basis for appeal. Indeed the misconduct is sometimes so egregious that it constitutes plain error; that is, it is a point which can be argued on appeal even where trial counsel has failed to preserve the point with proper objection.
Anchors Away: Attacking Dollar Suggestions for Non-Economic Damages in Closings, 70 Def. Counsel J. 378, cites studies which disclose that damage awards are inflated by so simple a device as plaintiff’s attorney’s request for larger sums. In fact, there is much more to the prejudicial practices of the plaintiffs’ bar.
That bar commonly urges its members to adopt practices designed to prejudice the jury and inflate the verdict. Plaintiffs’ attorneys are taught that a jury is nothing more than an audience which requires “psychological inspiration;” they resort to analogies and metaphors to evoke past experiences, conveying the message that the case is important to the plaintiff and that the defendant is indifferent.
This is what defense counsel are up against. However, means are available for proactive defense counsel to combat these practices -- often at the outset of the trial.
The Clausen Miller Appellate Practice Group, which is also frequently retained at the outset of trial to support trial counsel upon legal issues (motions for directed verdict, motions for mistrial and jury instructions) advocates an aggressive motion in limine strategy and provides counsel with such suggested motions in limine as may be appropriate to the case. This can be most effective, particularly where the plaintiff’s attorney’s predilections can be predicted from his/her conduct in earlier trials.
Wiederer v. Camp Ojibwa is one such success story. As trial approached, plaintiff’s attorney proclaimed that he would not negotiate until defendant’s offer began at the $11 million mark. Unbeknown to that attorney, his prior conduct in another trial provided evidence of his probable game plan. His “shtick” was to focus on the plaintiff’s siblings, parents and spouse as a family unit and to “attest” to his own “expertise” as an attorney in order to justify the incredible dollar amounts he sought from the jury. The following is illustrative of some of the arguments he had previously presented:
That’s what this family is here for today, justice . . . they are here for justice. You all agreed that you could sign a verdict for many millions of dollars. Well the time has come. (emphasis supplied)
Total request for damages here is over $80 million. I think you could award twice that amount and still not fully compensate her and I have been in courtrooms representing people who are horribly injured, this is a fair and reasonable amount, it is. (emphasis supplied)
The bottom line - plaintiff’s counsel, upon receipt of our motions in limine directed to preclude his verdict-inflating practice, caved and settled the case for $3 million. ?
James T. Ferrini
jferrini@clausen.com
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