Session I - Defeat the Reptile – E. Stratton Horres Jr., and Karen L. Bashor
Shock verdicts make headlines. They become part of public consciousness. What is not so clear are the many defense verdicts out there. Cases are won, you just don’t hear about them. But what you do hear about are those shock verdicts that are discussed during case evaluation roundtables and among jurors. Plaintiff’s Counsel’s Reptile tactics pave the way for these excessive awards, but here are some strategies you can employ to buffer the shocks.
Key topics to be discussed:
The Rise of Shock Verdicts
Root Causes of Shock Verdicts
How Anti-Corporate Bias Plays into Jury Verdicts
The Plaintiff Counsel’s Playbook
Re-Thinking Defense Strategy
Assess and Evaluate Damages and Exposure
Choose Corporate Reps and Experts Wisely
Humanize the Company at the Outset
What is Anchoring?
What is Counter-Anchoring?
Priming the Jury
Identify the Counter-Number and Compare/Contrast the Numbers
Session II - Ethics in Reverse Reptile Strategies – Kathryn S. Whitlock
It seems that as the verdicts rise, so does plaintiffs’ counsel’s hubris. Ever more ambitious, they continue to push the envelope to achieve those nuclear verdicts. The defense bar was slow on the uptake but is now actively developing effective strategies to counter Reptile Strategy. One arrow in the defense quiver should be professional ethics. Consideration should always be made about the point at which zealous advocacy crosses the line into unethical and unprofessional conduct and how that line-crossing can be leveraged. Is it ethical to transform a single plaintiff’s case into a weapon targeting the entire industry? Is it appropriate to prey upon juror fear? Is it sanctionable to violate court orders on motions? These questions and more will be considered during this presentation on ethical constraints against Reptile Theory.
Key topics to be discussed:
Clients are entitled to zealous, but still ethical, representation
Simply legal may not be enough
Ethical rules require lawyers to consider broad implications of their actions
Using opposing counsel’s ethical and professional duties to effect good outcomes for clients
Date: September 27, 2023
E. Stratton Horres Jr. | Wilson Elser Moskowitz Edelman & Dicker LLP
Stratton Horres is an accomplished litigator who has more than 40 years of experience behind his practice, which is focused on crisis management and defending clients in catastrophic and high-exposure mass casualty events in virtually all areas. Cases have included mass shootings, commercial, products liability, health care, wildfires, explosions, transportation incidents of all kinds and construction collapse matters. In addition, Stratton frequently is engaged as monitoring counsel on behalf of insurers in these kinds of cases.
Stratton also has experience with insurance agents and brokers professional negligence cases and D&O matters and has represented financial institutions of all kinds. He has taken numerous jury and bench trials to verdict and successfully defended many verdicts on appeal. Stratton’s trial and appellate practice encompasses state and federal courts across Texas and the Southwest Region and throughout the United States.
Clients rely on Stratton’s sound judgment and superior legal skills when faced with a high-exposure, high-visibility incident or lawsuit. He provides advocacy, counsel and support in all phases from incident to resolution and helps in mitigating any potential public relations fallout.
Stratton frequently speaks to local and international audiences on a range of legal topics such as technology, health care and professional negligence, and is the author of numerous articles, including, with partner Karen Bashor, “Defending Billion-Dollar Claims: Nine Best Practices for 10-Figure Losses” for the August 2021 issue of CLM Magazine. He also authored “Fire at Will” published in Texas Business magazine.
Stratton has served as lead counsel in hundreds of product liability cases, many of which have involved complex issues and high exposures. He has successfully represented manufacturers of vehicle components, recreational vehicles and watercraft, and industrial products in lawsuits filed across the country involving allegations of wrongful death or serious injury. He has obtained a number of defense verdicts in cases tried in venues known to be plaintiff-friendly, has handled several appeals, and also has been instrumental in obtaining numerous favorable settlements and dismissals.
In the health care industry, Stratton has handled hundreds of managed care and medical malpractice cases representing hospitals; doctors, nurses and other medical professionals; long-term care facilities; and managed care, home health and medical products companies. He has tried many such cases to verdict or directed verdict across the State of Texas. In addition, Stratton has received many dismissals and summary judgments, including several involving a highly controversial procedure known as an autologous bone marrow transplant. At the time, these decisions were among the few to come down in favor of the
managed care industry on bone marrow transplants and ERISA preemption. Stratton also has had extensive experience with regard to ERISA, life, health and disability issues.
Stratton has practiced in the area of complex commercial litigation throughout his career. Specific issues and claims Stratton has litigated for clients include deceptive trade practices, theft of trade secrets, technology contract disputes, libel and slander, aviation transactions, commercial fraud, banking and financial matters, securities fraud, shareholders derivative, professional malpractice, directors and officers liability, personal injury, environmental and toxic tort, and oil and gas matters. In addition, Stratton has handled insurance agents and brokers professional negligence cases and D&O matters, and has represented financial institutions of all kinds.
Earlier in his career while practicing at Gardere & Wynne, Stratton handled high-profile, high-exposure intellectual property and commercial cases for growing software development companies as well as multinational corporations.
Karen L. Bashor | Wilson Elser Moskowitz Edelman & Dicker LLP
Karen L. Bashor has significant litigation and trial experience with complex litigation and catastrophic injury defense, and currently serves as regional co-chair of the firm’s National Trial Team. Karen’s practice has focused on crisis management and defending clients in high-exposure mass casualty events in virtually all areas, including mass shootings, products liability, health care, explosions and large transportation accidents. Karen also has been engaged as monitoring counsel on behalf of insurers for these types of cases. She defends other complex and high-exposure matters involving claims for civil rights, medical malpractice, technology companies, transportation companies, aviation, premises liability for hotels and casinos, and claims involving various national restaurants and retail establishments. In addition, Karen advises on cannabis-related risks that are excluded or limited in traditional E&O policies.
Karen has spoken at numerous events and presented several webinars for the insurance industry as a thought leader on hot topics impacting the industry. She has published various articles that can be found in the Nevada Lawyer magazine, the national industry-leading magazine Claims Litigation Management (CLM), Bloomberg Law and Reuters/Westlaw.
Karen is an active and well-respected member of the firm, her local legal community and in the industry. In 2022, Karen was accepted as a member of Chief, a private network built to drive more women into positions of power and keep them there. Chief is the only organization specifically designed for the most powerful women executives to strengthen their leadership, magnify their influence and pave the way to bring others with them.
Karen previously served as the Las Vegas regional representative to the firm’s Women Attorneys Valued & Empowered (WAVE) committee for five years, and also served on various subcommittees to organize national programs and local programs, as well as guide the firm’s mentorship program. She was named Wilson Elser’s “WAVE Maker of the Year” in 2017. Karen also served as a Board Member of the Southern Nevada Association of Women Attorneys. Karen is a pro bono volunteer with the Legal Aid Center of Southern Nevada and is the Las Vegas regional representative for the firm’s Pro Bono Committee. In 2019, the Nevada Supreme Court extended an invitation to Karen for a three-year appointment to the state Bench-Bar Committee, which she was honored to accept. Business Insurance selected her among a prestigious group of “Women to Watch” for 2021.
Prior to joining Wilson Elser, Karen was a trailblazer as the first woman partner and first minority partner at a prominent Las Vegas law firm where she routinely handled large cases involving multimillion-dollar claims. Before that, she handled complex litigation in the area of medical malpractice involving individuals and facilities while at another large Nevada law firm. Karen began her law career in New Jersey, first at a small civil litigation firm where she received unparalleled experience, and then went on to serve as an Assistant Deputy Public Defender for the Adult Trial Division at the New Jersey Office of the Public Defender in Essex County, where she honed her trial skills. While there, Karen handled a large caseload providing constitutionally mandated legal representation for adults charged with felonies from pre-indictment to trial, successfully handling a number of jury trials and obtaining acquittals for clients, including those facing life imprisonment.
To date, Karen has handled civil and criminal jury trials successfully in state and federal court in Nevada and New Jersey. Karen is a member of the firm’s highly experienced National Trial Team.
Kathryn S. Whitlock | McAngus Goudelock & Courie, LLC
Kate Whitlock has spent her entire career defending people accused of not doing their jobs right. Whatever the accusation, defendants trust she has their back. Kate works tirelessly to untangle complicated issues to protect our clients’ reputations and livelihood. She aims to resolve litigation or disputes promptly so that her clients can get back to focusing on what they do best – their work.
A tactful negotiator and persuasive communicator, Kate is a force to be reckoned with in a courtroom or alternative dispute forum. She has tried more than 60 cases to verdict in state and federal courts. Her advocacy in the appellate courts is equally notable, often being hired by other lawyers after an unfavorable trial outcome. Most recently, she won a landmark case in the Georgia Supreme Court that changed how attorneys structure contracts for legal services. Outside of the courts, she represents clients in arbitration, mediation, and before licensing agencies. Her track record has earned her notable honors and widespread recognition by her peers.
Session I – Defeat the Reptile | 2:00pm – 3:40pm
The Rise of Shock Verdicts | 2:00pm – 2:05pm
Defining the term
Root Causes of Shock Verdicts | 2:05pm – 2:10pm
Decay of public trust in corporations
Social inflation – the new buzzword
Political and societal divisions since COVID pandemic
Jurors want to “send a message”
How Anti-Corporate Bias Plays into Jury Verdicts | 2:10pm – 2:15pm
Persuasion Strategies’ Anti-Corporate Bias Scale
Lower-educated conservatives hold the most bias
Better-educated conservatives are more moderate in their bias and awards
The Plaintiff Counsel’s Playbook | 2:15pm – 2:20pm
Re-Thinking Defense Strategy | 2:20pm – 2:30pm
The client, defense counsel and carriers should develop a focused cohesive defense
Execute and revise the strategy as needed
Humanize corporate reps
Prepare jury questions asap
Assess and Evaluate Damages and Exposure | 2:30pm – 2:40pm
Use discovery to assess and evaluate damages
Use adjunct legal team
Use social media to gather information
Prepare damages and exposure models
Create Leverage | 2:40pm – 2:45pm
Develop facts in discovery to support affirmative defenses
Consider dispositive motions
Consider mock jury trials and / or focus groups
Choose Corporate Reps and Experts Wisely | 2:45pm – 2:50pm
Prepare, prepare, prepare
Consider professional assistance
Videotape session and role-play
Choose experienced experts
Humanize the Company at the Outset | 2:50pm – 3:00pm
Tell the company’s origin story
Focus on details of community involvement and charitable causes it supports
Its culture, diversity and inclusion and how it hires and helps employees
Be consistent, credible in the narrative and presentation of the case
The jury selection and opening argument should contain this company narrative
Break | 3:00pm – 3:10pm
What is Anchoring? | 3:10pm – 3:20pm
Anchoring – setting an unjustifiably high amount as a baseline- is highly effective for Plaintiffs
Psychologically manipulative tactic combined with reptile strategy
Turning an injury into a dollar award is difficult for jurors with no experience in valuing
People tend to assign disproportionate weight to the first piece of information they receive – the anchoring effect – so Plaintiff drops anchor with this high number up front
Jurors adjust numbers up and down from that initial large amount
Plaintiff counsel use large anchors for a high verdict
What is Counter-Anchoring? | 3:20pm – 3:25pm
A counter-anchor provides the jurors with a different reference point on which to base their decision
Defense may fear offering a counter-anchor concedes liability or provides a floor for damages
But a counter-anchor can help neutralize the high anchor set forth by Plaintiff’s counsel
Priming the Jury | 3:25pm – 3:30pm
Identify the Counter-Number and Compare/Contrast the Numbers | 3:30pm – 3:40pm
Credibility is key: choose a lower number but not so low as to impact credibility
Rational relationship – choose meaningful numbers
Call out Plaintiff’s counsel for manipulative tactics and suggest counter-anchor as reference point
Break down Plaintiff’s anchor amount to suggest unreasonableness
Hold jurors to their oath to decide on evidence and instructions, not bias or sympathy
Jurors are generally serious and want to do the right thing, so show them they can give the Plaintiff a “deserved” award without unduly punishing the corporate defendant
Session II – Ethics in Reverse Reptile Strategies | 3:40pm – 4:50pm
Representing your client zealously within ethical bounds | 3:40pm – 3:55pm
What differing interests do lawyers have to consider | 3:55pm – 4:10pm
Break | 4:10pm – 4:20pm
When is simply legal not enough | 4:20pm – 4:35pm
Other than a rules violation and disciplinary action, what considerations do and should define a lawyer’s conduct | 4:35pm – 4:50pm