Trial Preparation – Themes to Win a Case During COVID-19

Transcription:

Brendan Lupetin:
Was there anything in closing or opening, or themes that you worked into the trial, that were specific to people’s experience of the pandemic and living through this presently?

Peter Pentony:
Good question. We talked about that a lot. My partner, Cory Ford and I, probably like most plaintiff’s lawyers, spent a lot of time just talking about the case over and over, coming up with concepts, how you’re gonna describe things, what words you’re going to use. I think all of that matters. And you only get that by talking about it and talking about it. We decided we weren’t going to dwell on the pandemic itself. I mentioned it at the very beginning of opening, I told them I appreciated them being there.  I knew these were tough times. They had an important job to do and we weren’t going to waste their time about it. And, that was it. Didn’t talk about the pandemic the whole rest of the time, unless I had to make some comment about my mask getting caught in my glasses or something like that.

Peter Pentony:
But I, one of the real benefits of the court shut down there early in the spring was that a lot of really good lawyers were kind enough to share their time in webinars, and other ways. And it gave me a chance to take a break and really watch those. And one of the best ones I saw was Jim Lee, a good West Virginia guy. Talking about how in these times, even as polarized as America is, there’s no side of the political spectrum that doesn’t value freedoms. They might value different freedoms. One might value the freedom of being able to carry an automatic weapon in public, and another might value the freedom from being unnecessarily accosted by a police officer, but in general, everyone’s valuing these freedoms. And so his suggestion was to couch your non-economic damages in terms of freedoms lost.

Peter Pentony:
So instead of talking about job modifications required by the injury, we talked about he lost the freedom to handle his career the way he wanted to. Instead of talking about his inability to work on his farm, and do all the physical labor there that needed to be done, we talked about how he’d lost the freedom to do what he wanted when he wanted on his property. Instead of talking about his concern about what the consequences of the surgery might be, we talked about his loss of his freedom from worry. And we hammered that in opening and also in closing. And I don’t know if that was the thing that made a difference, but that was a new concept for me and all credit for coming up with it goes to Jim. But I can tell you that it felt right when we didn’t know exactly how this jury pool was going to be politically, because of limitations on some of the questions. It felt like that was something that was getting through to everyone. And it fits in when you’re talking about what’s going to balance the scales, what makes up for what was taken. When you take someone’s freedoms, there’s not too many people out there who are going to be unaffected by that.

Brendan Lupetin:
Nobody likes to have their stuff taken. And I love, coupling that with that constitutional right that everybody can identify with. That freedom to do whatever it is, that different aspects of their life and pointing out that we’re all granted that constitutional right. I like, you know, rally a year ago was really stressing that tying life, liberty, pursuit of happiness into how you’re going to argue your damages model for non-economic damages. And the fair trade value if somebody takes this away from you. What is the fair price for that, and I think that’s great. And I think you and I are both, and a lot of lawyers really fortunate, like you said, if you’re junkies about trial practice to have had this crazy pandemic hit where we were locked in our houses and our work processes slow down, but we had a lot more time to watch this massive amount of trial strategy, and all of these amazing seminars, and all this great stuff that got put out online on top, and have the time to watch it as well. I mean, there’s too much. I can’t keep up with it.

Peter Pentony:
No, no, but, any bit of it helps, and, you know, because there’s been so much of it in the spring, I couldn’t wait to get in the courtroom.  I wanted to try those things.