As Nuclear Verdicts®, defined as verdicts over $10 million, become more common, defense attorneys may be asking themselves where things went wrong. The traditional approach to handling these types of cases is not the only way. The Tyson & Mendes methods can help attorneys save their clients millions. Two recent sexual abuse and molestation cases exemplify the differences between trial methods. Both cases involved similar facts, but the outcomes could not have been more different. In one case, the Tyson & Mendes methods were used successfully, and in the other they were not. In fact, the difference in the verdict was more than $100 million.
Just the Facts
In Doe v. Norwalk-La Mirada Unified School District, a special-needs high school student was sexually assaulted by another special-needs student in a school bathroom. Another student witnessed the incident and provided cell phone video footage to the administration.
In Doe et al v. Union School District et al, after a teacher molested a girl and inappropriately touched another girl, their parents sued. Before this, the teacher had a history of texting with students and was investigated multiple times without consequences because investigations showed no wrongdoing.
What made the difference in these two verdicts? The Tyson & Mendes methods.
Utilizing Themes: Common Sense and Reasonableness
In Doe v. Norwalk-La Mirada Unified School District, Tyson & Mendes attorneys highlighted the crucial themes of common sense and reasonableness. A reasonable narrative should not contradict concrete facts, and attorneys should not attempt to compromise the jury’s values. Attorneys should establish common sense as a theme as well, reinforcing the plaintiff has the burden of proof. Tyson & Mendes attorneys ensured they spoke to the jury about reasonableness and common sense, appealing to themes they had established in their opening statements.
In Doe et al v. Union School District et al, the plaintiffs took on the theme of common sense, referring back to that theme throughout closing arguments. When the teacher was texting his students in an overly personal manner, asking whether they had a boyfriend, what their family was like, and asking them to be open with him, the plaintiffs said it was common sense that something was wrong.[i] Again, after yet another issue arose with the teacher, plaintiff refuted defense’s arguments, suggesting it was common sense the teacher’s behavior was inappropriate.[ii]
In Doe v. Norwalk-La Mirada Unified School District, Tyson & Mendes attorneys highlighted the ways in which the school took responsibility. The school took responsibility for providing reasonable supervision to its students, for implementing policies and procedures for supervision on their campus, and responsibility for its conduct on the day of the incident. Defense should accept responsibility—although not necessarily liability. This defuses juror anger, makes the defendant look like the most reasonable person in the room, and shifts focus to others’ comparative fault.
In Doe et al v. Union School District et al, the defense attempted to accept responsibility, but their attempts failed. This gave plaintiffs an opening to recharacterize defense’s attempted acceptance as disingenuous and calculated, which also impacted the jurors’ impressions of the corporate defendant.
Giving a Number
In Doe v. Norwalk-La Mirada Unified School District, Tyson & Mendes attorneys provided a reasonable number for the jury. A number should be given early, often, and must never go up. In opening statements, attorneys introduced the number ($300,000) and explained why their number was reasonable. Attorneys also used the closing argument to remind jurors of the reasoning behind that number, referring back to testimony from plaintiff’s “treatment providers, experts, and others.”[iii]
In Doe et al v. Union School District et al, defense gave reasonable numbers in closing arguments for both plaintiffs and included details on how these numbers would impact plaintiffs’ life and help them after the incident. It is not clear whether defense gave a number in opening statements. The numbers defense gave were a counter to plaintiffs’ exorbitant numbers. The defense also asked for a defense verdict.
Pain and Suffering
In Doe v. Norwalk-La Mirada Unified School District, Tyson & Mendes attorneys addressed pain and suffering head-on. Pain and suffering should be argued by focusing on the impact of the incident on plaintiff’s life, with an investigation of their life before and after the incident, and a discussion about the impact of the defense number on plaintiff’s life. This includes a discussion of how the money will assist with plaintiff’s passions, shared experiences with loved ones, annual income, investment returns, or similar. Here, defense counsel explained it was the jury’s task to reasonably compensate the plaintiff, based on what was known about the impact of the event on the plaintiff, and the impact the money would have on the plaintiff’s life.[iv]
In Doe et al v. Union School District et al, defense counsel reviewed parts of plaintiffs’ lives with jurors and highlighted ways in which they were excelling, even complimenting their strength and describing them as amazing.[v] Defense counsel further emphasized how the girls might need money and additional support and how their experts had discussed the potential impacts of therapy. Plaintiffs undermined this argument, however, by discussing the widespread impact of these incidents on the girls and their mental well-being, suggesting defense was minimizing the girls’ suffering in its arguments—which may have caused jurors to believe the defense was unreliable and selfish.
Personalizing the Corporate Defendant
In Doe v. Norwalk-La Mirada Unified School District, the attorneys provided witness testimony to personalize the corporate defendant. Attorneys should ensure jurors know more about corporate defendants: their origin story, years in business, communities they serve, charitable efforts, etc. and enough about their corporate representative. Attorneys here focused on “the role the district plays in the community and readying its students for bright futures,” as well as “showing the deep care its teachers and paraeducators have for their students.”[vi]
In Doe et al v. Union School District et al, the administrators appeared at trial, but the defense did only the bare minimum to personalize them. Defense’s personalization attempts doubled as an attack on plaintiffs, undermining the authenticity of their statements: “Sitting here listening to plaintiff’s arguments, insinuation that somehow these administrators look the other way for their own personal gain or because they are lazy is nothing short of insulting.”[vii]
While defense in the Doe v. Union case attempted to utilize T&M methods and successfully gave a number, using just one method in the correct manner is not enough. To combat plaintiffs’ unreasonable demands, defense must ensure they successfully implement all four methods: accept responsibility, give a number, argue pain and suffering, and personalize the corporate defendant. Without all four methods, the outcome of the case may not be what the defense was hoping for.
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[i] Closing Arguments, Doe v. Norwalk-La Mirada Unified School District, 3290.
[ii] Closing Arguments, Doe v. Norwalk-La Mirada Unified School District, 3297.
[iii] Press Release.
[iv] Press Release.
[v] Closing Arguments, Doe v. Norwalk-La Mirada Unified School District, 3396:13-14.
[vi] Press Release.
[vii] Closing Arguments, Doe v. Norwalk-La Mirada Unified School District, 3319:5-12.