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4 Major Defense Weaknesses in Health & Safety Products Liability – Part 3

No sugar-coating it:  the defense weaknesses we discussed in Part 2 are dangerous.  If you don’t have solid, convincing responses to them, you’re looking at significant challenges for your case outcome. 

Finding the best solutions will, as always, depend on the specifics of your case.  However, because plaintiffs’ main arguments (and jurors’ reactions to them) are common and have broad applications, there are a number of important steps you can take every time: 

Ask Yourself the Important Questions – and Answer Honestly

1. What are your case facts? 

  • How thorough was your testing? 
  • Was there evidence of a problem? 
  • Did you warn sufficiently?  
  • If there was an issue, how quickly did you respond?  What did you do? 
  • Could you have reasonably avoided the incident? 

2. Knowing these facts and the plaintiff’s likely arguments, where are the areas you’re most vulnerable?  What is the plaintiff going to attack hardest?   

Build Proactive, Thematic Responses to Your Weaknesses

Now that you’ve identified your vulnerabilities, you’ll need a strategy beyond simply denying what the plaintiff says.  Think about how you can frame your case proactively 

The most effective way to do this is through case themes.  These aren’t mere arguments, but rather repeatable, digestible, and memorable phrases that teach jurors your story.  As we established in Part 2, the plaintiff is already using powerful themes to hurt your case:  “Profits over People,” “Knew and Did Nothing,” and “Denial of the Plaintiff’s Right to Choose” are a few of the big ones you’re likely to see in some form or another.  So how will your themes tell a different, better story? 

To develop themes that apply to your specific case facts and resonate with your specific juror pool, the assistance of an experienced consultant is ideal.  Not only does the right consultant know how to craft and deliver themes, and which themes tend to work in which situations, but a research project (like a mock trial or deliberation group) will uncover representative jurors’ actual opinions – what they want to know, where your strengths are, and where your weaknesses are.  Bringing in a jury expert means you’re not just relying on your own instinct and logic. 

Involve the Witnesses in Your Telling of the Story

Your witnesses are the characters in your story – so they can continue with your themes right where you leave off.  They should be familiar with the overall themes you’ve developed, know their own themes, and be able to work them into their testimony without sounding like a mouthpiece. 

This means preparing your witnesses thoroughly, giving them the communication tools and strategies they need to help them answer the tough questions.  Direct examination is one thing, but they’ll need to handle cross, when the plaintiff’s counsel will hit your weaknesses hard.  How will your witnesses respond to problematic documents?  Can they give explanations that fall in line with your strategy?  Are there opportunities for them to poke holes in the plaintiff’s case? 

Optimize Jury Selection to Remove the Riskiest Jurors

An awareness of your biggest weaknesses can also point you toward key voir dire questions and topics.  With the right lines of questioning, you can often identify the worst offenders – those who would enter trial unable to hear your case fairly – and remove them from the panel.  These questions can be tailored to account for each of your weaknesses.  For instance, you can identify: 

  • Jurors with strong anti-corporate biases, who are likely to flock to the plaintiff’s “Profits Over People” arguments 
  • Jurors with unreasonably high standards for testing and warning  
  • Jurors who feel negatively about government agencies (like the FDA) or believe they’re controlled by corporate interests 
  • Jurors who would be particularly put off by certain internal company documents and unable to acknowledge their context 

Jury consultants can be of further help here, as research projects and social media searches are invaluable in developing juror profiles and voir dire questions; moreover, a consultant can accompany your team during the jury selection process to track important juror responses and make recommendations. 

Check Out More Resources

On this site alone, we offer an extensive cache of tips, tools, and strategies for building and strengthening your case presentation.  A few blogs particularly relevant to this subject are: 

Communicating Your Themes 

How to Deal with Bad Company Documents  

How Should Scientific Research Be Presented to Judges and Juries? 

The Reptile Brain Strategy: Why Lawyers Use It and How to Counter It 


As always, we also invite you to contact us directly to ask questions and learn more about how Litigation Insights can provide crucial assistance with your case.



By: Barbara Hillmer, Ph.D. – Senior Consultant



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