(Aug. 20) – As Dallas jurors delivered their whopping $242 million verdict Friday afternoon against Toyota, several people in the courtroom cried. Even District Judge Dale Tillery was emotional as he read a statement written by the legal team for Benjamin and Kristi Reavis.
“Your verdict today will make a difference,” Judge Tillery said to jurors, his voice cracking. “Men and women of the jury, be confident and strong that any future criticism that comes from those who think the facts [were different] … didn’t see what you have seen. They are not the ones who evaluated diligently and analyzed the evidence during trial.”
As in most complex trials, there were key moves by the lawyers and key rulings by Judge Tillery that paved the way for Friday’s huge damage award.
The Texas Lawbook had a chat with Frank and Debbie Branson over the weekend. Here are eight key trial elements they agree proved crucial to Friday’s dramatic jury verdict:
1. A Pre-Trial Discovery Victory
Long before the lawyers at the Branson firm got hip-deep in arguing the merits of the case, they faced-off with Toyota in a series of fierce discovery battles over confidential information. Toyota argued that key documents sought by plaintiffs during discovery were overly burdensome and widely irrelevant to this case. In most cases, they lost.
Toyota took multiple discovery orders by Judge Tillery to the Dallas Court of Appeals, but didn’t have much luck securing relief.
Perhaps most important was a relentless effort by Toyota to seal documents related to a deferred adjudication agreement reached with the Department of Justice in 2014 for misleading the public about unintended acceleration issues that surfaced in 2009.
The agreement was based on internal documents leaked by a former in-house lawyer, exposing the automaker’s previous pattern of concealing crucial evidence in tort cases involving Toyota safety issues.
Toyota argued that because the documents were illegally leaked in the first place, the company had never waived its privilege over them.
Judge Tillery, however, ruled that sealing the documents, publicly available for several years on the internet, “cannot have any practical legal effect” and that the documents in question “concern matters that have a probable adverse effect upon public health or safety.”
Although Judge Tillery instructed jurors not to consider the deferred adjudication or unintended acceleration issues as evidence of any defect in the Reavises’ Lexus, the Branson attorneys were able to point to Toyota’s lack of candor on safety issues during the trial.
Being able to refer to it was “certainly a blow to their (Toyota’s) credibility,” Frank Branson said.
Another important pre-trial win for the plaintiffs related to electronic discovery. The Branson team convinced Judge Tillery to order Toyota to help plaintiffs narrow the search terms used to extract information from Toyota’s multiple databases. The narrowed search terms allowed the capture of more relevant information concerning the seatback failure that was the focus of the plaintiffs’ case.
2. Weeding out Diehard Toyota Fans at Jury Selection
Jury selection took nearly a full week, but it paid off in the end for the Reavises. One clear challenge for the plaintiffs was to weed out the potential jurors who had connections with Toyota’s Dallas headquarters or were diehard fans of their vehicles.
“I believe they (Lexuses) are the safest cars on the road,” one woman said. “It will be difficult to convince me otherwise.”
Branson’s direct, honest style during voir dire helped potential jurors open up to any biases they held.
He told them that he knew they’d have to face what is the worst fear for many: public speaking; but he assured them it would pay off.
“The more you talk, the more we’ll have a fair jury,” he said.
One man mentioned that he comes from a family who loves Lexus and Toyota; and that they had been driving Toyota cars for as long as he could remember.
Branson took a lighthearted approach to getting the man to admit a bias.
“So you may not get back into your house if you serve on this jury?” Branson said, half joking.
“I might not,” the potential juror answered.
Said Debbie Branson of her colleague/husband: “I think Frank handled jury selection really well. There was a lot of Toyota and Lexus loyalty, and a lot of resistance and concern about the minimum federal standards and whether or not they could hold Toyota to stand to a stronger level of safety. It was a difficult jury selection.”
Mrs. Branson, who served as the team’s jury consultant, kept a close watch on the jurors throughout trial.
“We do evaluate our strategy as we go,” she said. “It’s an important part of being in the courtroom. You have to pay attention to what’s going on and evaluate what works, what we might do better, and continue to re-assess on a daily basis.”
3. Building the Reavises’ Credibility
Some of the strongest (and hands down, most emotional) testimony from trial came from Mr. and Mrs. Reavis. Though their testimony contributed heavily to the case against Toyota, it was equally important to present them, within the witness lineup, in their most effective order.
Frank Branson conducted the direct-examination of both plaintiffs. He decided to call Mr. Reavis as the first witness on the plaintiffs’ side. The Branson team then called experts and family friends.
Jurors said the testimony of two family friends, Hillary Campbell and Heather Lepeska, resonated with them because they provided “a good view of what the kids were like before.”
Testimony by Kristi Reavis ended the plaintiffs’ case.
Toward the end of her testimony and before handing Toyota the baton to begin its defense, Mr. Branson asked Mrs. Reavis her thoughts about Toyota’s approach to the case. Her answer proved powerful:
“I’m just shocked,” she said. “It’s so disturbing. As a parent I feel betrayed. It’s devastating to think there was so much knowledge about it (seatback failure issues) at the time that’s caused so much injury and pain that could have been avoided,” she said. “It’s just very painful.”
Mr. Branson posed careful questions to the Reavises that left jurors with a good idea of what their life was like before the accident, and captured the parents’ thorough and practical decision-making method when choosing the Lexus ES300 as their new family vehicle.
The parents came across to the jury as likeable, kind-hearted, hard-working professionals who always put the best interests of their children above everything – no matter the cost, time or toll it posed on their emotional well-being.
“It was important that we had really good, loving parents who I think it was clear that they had done and will do everything they can for their children,” Debbie Branson said. “I think that matters.”
4. Knocking Down Toyota’s Credibility
In addition to bringing up Toyota’s unintended acceleration issues, the Branson firm questioned Toyota employees about the company’s lobbying activity with Congress and automotive bodies such as the National Highway Traffic Safety Administration.
The team also made sure to play fragments of a 1992 “60 Minutes” report any time the opportunity presented itself. The report reiterated the plaintiffs’ argument that despite having known about seatback failure issues for decades, little had been done to address it.
During closing arguments, Mr. Branson played a segment of the report that featured an interview with the former head of NHTSA, Joan Claybrook, who called FMVSS 207 (the standard for seatback strength) “totally inadequate.”
CBS correspondent Ed Bradley asked Claybrook to respond to the automotive industry’s argument that a majority of accidents occur from the side or the front of the car, so the amount of rear-end collisions that occur are not enough to justify the amount of money needed to strengthen the seats to withstand the impact from 30-mile-per-hour rear-end collisions.
“It is true that there are less crashes in the rear and less injuries and deaths in the rear than front and side impact crashes, but that doesn’t mean that you shouldn’t do what you can do,” Claybrook replied. “And the cost of this is so tiny. Let’s say the cost is $20, or $50 – even $100. Don’t you think that anybody who knew that even if it cost that much – which I can’t believe it would – to upgrade the car so that you wouldn’t become a quadriplegic that they’d be willing to pay that?”
“From the beginning of voir dire to the end of closing arguments, the Reavises and their trial team were critical,” Frank Branson said. “What we told them was what turned out to be the facts of the case. Toyota began losing credibility in those issues early.”
Branson also brought to jurors’ attention multiple times that Toyota employed an ungodly number of lawyers to defend it in this case.
“It’s really hard to explain why you need six large law firms,” he said.
5. The Court Ran a Tight (But Accommodating) Ship for Jurors
Judge Tillery wasted no time each day the trial took place. He told the jury to arrive at 8:30 every morning.
“Judge Tillery is a smart, experienced judge who listens to things, makes rulings and keeps the trial moving,” Debbie Branson said.
“He worked hard,” Frank Branson added. “He got in early in the morning and stayed late.”
He also wasn’t afraid to let his appreciation of the jury’s hard work be known. He told lawyers that the way he runs his court during trial will always revolve around the jurors’ schedules. If they want to stay past 5 p.m. to listen to evidence, they will. If they want to leave early on Fridays, they have that right. Judge Tillery was upfront early on in the trial that he would dismiss jurors at 4 p.m. on Fridays, so the lawyers better plan accordingly.
“They’ve been so good, so I would like to reward them,” Judge Tillery told the lawyers during the first week of trial.
Plus, “his courtroom staff was very accommodating to the jury, which was always a positive,” Frank Branson pointed out.
A highlight for jurors in most high-dollar trials can be summed up in two words: free food. It was no exception during this trial.
The parties supplied lunch for the jury every day. (I live my best life when I’m warm and fed, and these jurors appeared to feel the same way.)
The most popular lunch item, Bailiff Phil Fisher said, was the Chinese food that was catered in one day.
Fisher also made sure to keep the jury room fully stocked with Ritz peanut butter crackers, popcorn, chips and candy. They had coffee too. And sodas – lots of sodas. Judge Tillery commented one day when jurors were not present that he had never heard so many soda cans crack open in the jury box before this trial.
“Mr. Fisher, I think you need to start serving this jury Studio Movie Grill style,” Judge Tillery teased one day.
6. Bringing on a Rebuttal Witness
Toyota closed its case with the testimony of seat design expert Greg Stephens, who told jurors he didn’t find the Reavises’ front seats “defective or unreasonably dangerous.” So, the Branson team decided to bring in a rebuttal witness to directly challenge that Toyota-friendly assessment.
Steve Meyer of SAFE Laboratories, who conducted a sled test that yielded violent results, told the jury that his test was the only one presented at trial that came close to representing what occurred inside the Reavis family’s Lexus.
In much detail, Meyer broke down the crash tests conducted internally at Toyota, and by the automaker’s experts. In particular, he challenged the fact that none of them used the right-sized crash test dummy – and some tests did not include dummies at all.
Jurors pointed to Mr. Meyer’s testimony as an important factor in finding the plaintiffs’ expert narrative more credible than Toyota’s.
“Based off of the testing he was able to put on and just the amount of information that he documented for this case and everything he told us in his testimony was supported by his testing,” a juror who asked only to be identified by his initials, “S.Y.” said.
“It is our job to figure out who to believe, and when it came down to it, we believed one side more than the other side,” another juror, who asked only to be identified as Mike F. said.
The placement of Meyers’ testimony also proved crucial, since the jurors found the testimony of his predecessor witness, Stephens, to be some of the least credible of the case.
“If they said Toyota built a spaceship, I think he would have vouched for that,” Mike F. said. “A Toyota fanboy is what he seemed like; I didn’t believe anything he said.”
7. Less is More
Although he represented a defendant in the case, Jonathan Manning (who represented defendant driver Michael Mummaw) didn’t speak often during the trial. But when he did, he had something important to say.
“I’m sorry, Mr. Manning,” was a phrase uttered often by Judge Tillery after skipping over Mummaw’s lawyer for cross or re-direct examination. Manning was always good-natured about it, but rarely had any follow-up questions for the witnesses.
Manning’s silence throughout the case reflected an important theme in the Reavises’ legal argument: although Michael Mummaw was to blame for the 2016 rear-end accident, Toyota was the only party that could possibly take fault for the lifelong brain injuries that Emily and Owen Reavis sustained.
The strategy seemed to work; while Mummaw was found 5 percent liable for the Reavis family’s damages, Toyota got stuck with the other 95 percent.
“Because he was not regularly in the fray, the jury listened when he spoke; and because Mr. Manning’s a good lawyer, it helped,” Frank Branson said.
Manning’s scarce but effective style of questioning surfaced during the first day of voir dire. Having already been questioned by the Reavises’ and Toyota’s lawyers, the pool of potential jurors groaned and shifted in their chairs when Manning stood up to speak with them at around 4:20 p.m.
“Ya’ll be nice to Mr. Manning,” Judge Tillery said to lighten the mood.
“This is the way it’s going to go: by the time it gets to Michael [Mummaw to present his case], there’s not going to be much left,” Manning said. “Can all of you wait until all the evidence is in before judging Mr. Mummaw?”
To humanize his client, Manning asked the pool of jurors how many had been rear-ended by someone. Then he asked how many had been the person in an accident who did the rear-ending.
Nearly everyone on the panel had been involved in a rear-end collision one way or the other.
He questioned the jury panel for a fraction of the time taken by the other parties.
8. Bold, Direct Questions
When it became the Branson firm’s turn to cross-examine Toyota’s witnesses, each jumped on the opportunity to be confrontational, aggressive and end their cross with a memorable question.
Chip Brooker ended his cross-examination of Toyota’s seatbelt and child seat expert, Will Van Arsdell, with a question about a rollover crash test he had conducted to see if a dummy child stayed in the child seat. Brooker then pointed out the dummy had been ejected from the seat.
He asked Van Arsdell if he notified the company, and he said he did, and told them to notify NHTSA.
“Do you know if they did?” Brooker asked.
“No,” he replied.
“Did you ever notify NHTSA?”
“I didn’t.”
Eric Stahl, who handled the cross-examination of longtime Toyota engineer Motoki Shibata, ended his lengthy grilling by asking Shibata if he believed the jurors could change Toyota’s safety practices.
“I do not believe Toyota would change,” Shibata answered.
“I thought Eric did a really good job at cross, where he asked him if this jury could change the way Toyota did things, and he said no,” Frank Branson told The Texas Lawbook. “It was a very impressive answer.”
What was arguably the boldest question by the Branson firm came during closing arguments, when Mr. Branson offered to give Vital some of his own time to answer something Branson wanted to know:
“If these were your kids, Victor, tell me: what would the damages be worth?” Branson asked Vital. “You can have three minutes of my time.”
Vital stayed silent.