When Barbara Barron began practicing law, even a six-figure jury verdict was unusual in personal injury cases. Today, verdicts that make the headlines can even reach or exceed $1 billion.
This does not bode well for clients in the defense role, Barron says, particularly because it desensitizes jurors to the amount of money they may award in a case.
But a few habits Barron has developed during her 35 years of practicing personal injury defense at MehaffyWeber in Beaumont can, at the very least, soften the blow on a defendant.
She revealed the approaches she has found most successful on Thursday during the State Bar of Texas’ 35th annual advanced personal injury law conference.
Here are some of the highlights:
Don’t look at damages myopically.
Barron says lawyers tend to focus on exemplary damages, but she warned fellow defense practitioners of forgetting to look at the whole picture.
“Economic damages are really where the game is being played right now at this time,” she says.
Your smartphone is your best friend. Use social media.
In the digital world we live in today, many people keep their social media accounts public, which, particularly on the plaintiff’s side, could cost them their case if compromising information exists.
For example, Barron was recently on a case in which a plaintiff claimed he could not engage in much physical activity on his feet due to the injury he was claiming in the case. But when she checked his social media, she came across evidence of of him on a boat engaging in something quite physical: marlin fishing.
She says she makes sure to always take screenshots when she encounters such information that is helpful for her client’s case, because the plaintiff’s lawyer may catch on and tell his or her client to shut down their social media accounts.
Even if a plaintiff does not have any photos on his or her social media compromising to the case, Barron reminds defense lawyers to check the accounts of the plaintiffs’ friends.
Ask the right questions during voir dire.
One of the most important processes a defense lawyer undergoes is the task of weeding out high damage jurors during the voir dire process. The most effective way to do so, Barron said, is to be thoughtful about the way you ask your questions.
One question defense lawyers should absolutely ask is: “Do you think civil damage awards today are too high, about right or too low?”
That question provides a peek into what jurors’ exact attitudes are toward the verdicts that they see and read about in the media, Barron says.
It comes in handy particularly for soft — or noneconomic — damages.
“You have to acknowledge that this area is difficult,” she said.
Barron said she’s seen published research that suggests that the figure jurors discuss first during deliberation is the highest number suggested by plaintiff lawyers as a possibility for damages the jurors should award.
“It only takes one high-damage juror to affect your verdict,” Barron said. “It’s imperative during jury selection to at least figure out who those individuals are.”
Pay attention to pharmacy records.
“Life care plans are being seen more and more in chronic versus catastrophic injuries,” Barron said.
One way to dispute the amount of experts suggest for a plaintiff’s future medical expenses, she said, is to research a plaintiff’s pharmacy records for any discrepancies between their medical history and their story in court.
“I always hit up a Walgreens and CVS just because,” she said. “[It allows me to find] medical expenses not only hidden from me, but hidden from the plaintiff’s attorney.”
Licensed in five states, Barron has represented clients in all kinds of trials, including mass and toxic torts, personal injury, products liability and labor and employment law.
She was the liaison defense attorney for both the Texas Asbestos MDL and Texas Silica MDL. Since the 1980s she has begun trials in more than 50 toxic tort cases that were successfully resolved before a verdict. A graduate of the University of Houston Law Center, Barron worked as a briefing attorney for U.S. District Judge Robert M. Parker before joining MehaffyWeber in 1984.