When faced with potentially harmful evidence, it is best to accept responsibility and face the situation head on, instead of playing games and trying to hide evidence. Using tactics like this is not likely to endear the jury to an attorney, and may fuel their anger, leading to larger verdicts.
1. Equihua v. Chausse et al.
Last month, a jury awarded a driver and his wife $120 million in damages in a personal injury trial.i The court stated the defense engaged in “discovery abuse” during trial.ii The lawsuit stemmed from a crash in 2015 where plaintiff was struck and caused to roll over by a distracted driver. Plaintiff alleged defendant was on her phone at the time of the crash and requested phone records, which defendant withheld.iii However, withholding the relevant evidence cost the defendant. In her July 8 minute order, the judge determined there had been discovery abuse on the part of defendant.iv She then found liability in the plaintiffs’ favor and gave special jury instructions.v
2. Civil Procedure
The California Rules of Civil Procedure state:
Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.vi
Sanctions for misuse of discovery include monetary sanctions, evidence sanctions, terminating sanctions, as well as issue sanctions.vii Withholding phone records in a distracted driving case clearly opened the defense to sanctions. This foreclosed useful trial strategies for defendant and cost the defense dearly in the end.
3. Accept Responsibility
As Robert Tyson outlines in his book, Nuclear Verdicts™: Defending Justice for All, accepting responsibility helps achieve several goals:
1. Make the defendant appear reasonable.
2. Defuse juror anger.
3. Shift the focus to comparative fault.viii
By failing to comply with repeated discovery requests, defense counsel may have lost credibility with the jury. A jury instruction explaining an attorney suppressed important evidence makes that attorney appear anything but reasonable. A sanction foreclosing the issue of liability shuts down any chance of discussing comparative fault, which is a key part of Bob Tyson’s approach to defense strategy. Appearing both unreasonable and completely liable will not help attorneys defuse juror anger, which can lead to larger juror verdicts.
By withholding discovery, defendants may have missed a crucial opportunity to take responsibility and limit damages in a case with a high value. Facing unfavorable evidence head-on allows attorneys the opportunity to appear reasonable, defuse juror anger, and discuss comparative fault. This is one of the key strategies for reducing jury awards.
vi Code Civ. Proc., § 2017.010
vii Code Civ. Proc., § 2023.030
viii Robert F. Tyson, Jr., Nuclear Verdicts Defending Justice For All (2020).