Products Liability

Injuries and death caused by defective products continues to be an important safety problem. This includes injuries and death caused by prescription medications, medical devices, tobacco, asbestos, personal care products, chemicals, defectively designed automobiles, self-driving cars, and any other product that can endanger people. Sometimes products claiming to protect or cure people, are the exact thing that hurts or kills them.

As plaintiff lawyers, part of our job is minimizing or preventing public harm. History has demonstrated the public safety benefits obtained by lawyers. This has included everything from incentivizing car companies to not put explosive vehicles on the roadway, to stopping the sale of drugs that cause severe birth defects, to curbing products known to cause cancer, to requiring drug companies to disclose all known side effects of a drug to consumers so that they can make an informed decision about whether to take the drug. Given the number of Americans hurt and killed every year by dangerous or defective products, it is no surprise that product liability is the second leading area of personal injury practice, with approximately 33% of plaintiff lawyers' handling product liability cases. 

The risk of accepting a line of cases pertaining to a specific defective product and then losing those cases has destroyed large and successful law firms. It can be years between accepting the case and getting to settlement or trial, and can involve massive costs. Case selection skills are critical, and often involve hiring multiple experts to review the case before you ever accept the case.

One of the most common problems for lawyers handling these cases, is that unlike auto cases, the “rules” surrounding the creation of a dangerous or defective product, are not as clear as rules that govern drivers in an auto case. There are generally not bright line rules. If the defense keeps you in that “grey area,” where you cannot prove that what the defendant did was careless according to company or industry standards, you will lose. Once you lose a case of first impression, it may make it impossible to stop something that is a clear danger to the public. And recent case law makes it even more difficult because you can’t resolve an issue nationally, but rather may need to go state by state to stop the danger.

With so much at stake in these cases, combined with the need to protect the public from dangerous products, Trial Guides recognizes the invaluable contribution that product liability lawyers provide society in attempting to keep the injury and death rate from dangerous products to a minimum. As a result, Trial Guides has created a library of books and videos aimed at helping product liability lawyers to win for their clients. These product liability legal resources will help any lawyer, at any experience level to handle these cases better, increasing your likelihood of winning cases that otherwise would result in a defense verdict.


Top 10 Products Liability Resources for Lawyers

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Recommended Resources

Rules of the Road™

A Plaintiff Lawyer’s Guide to Proving Liability

Rules of the Road™ is America’s bestselling text on proving liability. The book directly addresses defective product cases, helping you take a case filled with complexity, confusion, and no set standards, and instead create “rules” from a variety of industry sources or company procedures which the defendant and defense experts cannot credibly disagree should have been followed in designing and manufacturing the product or warning label. This helps demonstrate to the jury that the manufacturer chose to break known and accepted rules in your case. Called a “masterpiece” by leading plaintiff lawyers, Rules of the Road™ has helped tens of thousands of lawyers obtain six, seven and eight figure verdicts in difficult factual cases. Rules of the Road is the first in a trilogy of “must read” books for any product liability lawyer at any experience level.

Also available as an audio book.

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David Ball on Damages 3

Widely considered “the bible” of handling plaintiff personal injury cases. David Ball on Damages 3 is the second in the trilogy of “must read” books for product liability lawyers. David Ball is considered by many to be the leading trial consultant for the plaintiff bar. David Ball on Damages 3 provides specific instructions on how to handle every part of your trial, from voir dire to closing. Sample opening and closings are provided. The 3rd (white) edition of this book, contains substantially more information than the prior (red) edition, and is the only place where the concepts of the Rules of the Road™ method is integrated with the Reptile™ method of trying cases.

Also available as an audio book.

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Winning with Stories

Using the Narrative to Persuade in Trials, Speeches and Lectures

Storytelling continues to be an important part of advocacy, and the best resource for storytelling in the courtroom is Jim Perdue’s Winning with Stories.

Beginning with an exploration of the story concept, Perdue analyzes narrative elements in detail, showing how to craft a story with a strong beginning, memorable scenes, believable characters, a logical plot, vivid action, and a moving conclusion. Going beyond these basics, Perdue demonstrates how to tell the story to maximum effect. Perdue covers mannerisms, physical movement, use of illustrative visuals, and other storytelling considerations in detail.

Winning with Stories is also an invaluable anthology of stories that speakers can use to make and illustrate a point. Perdue includes abundant examples of useful metaphors, similes, clichés, analogies, quotations, personal anecdotes, and humorous stories. He uses illustrative examples of actual opening statements and closing arguments the author has used to inspire juries to a winning verdict.

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30(b)(6)

Deposing Corporations, Organizations & the Government

In every product liability case, your defendant will be a corporation, or organization. Often you are taking on a massive entity with far more money and lawyers than your office. This book teaches you the incredible power available in these cases using FRCP 30(b)(6) and the associated state laws governing corporate and organization depositions. The book takes you step by step through how to designate the areas of inquiry for the designee deposition and forcing the defendant to appoint one or more people to answer on behalf of the organization with all information known to that corporation, organization or entity. Using the knowledge from this book, you will no longer let corporate deponents get away with answers like “I don’t know” because the organization is required to give that designee all knowledge pertaining to the topics you list in your notice. Gone are the days of “the person most knowledgeable,” and evasive answers, because a denial of knowledge by the deponent is a denial of knowledge by the corporation or entity itself. The book goes beyond just the oral deposition, and includes tips on document depositions when defense counsel has refused to provide discovery through requests for production or interrogatories. Filled with state and federal case law on 30(b)(6) depositions that can be used in your motions to compel, and motions for sanctions when the opposing party engages in discovery abuses. This book is critical for every lawyer's handling any type of case against a corporation, organization or governmental entity, and has transformed thousands of lawyers’ discovery practices.

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Winning Case Preparation

Understanding Jury Bias

Jury bias can kill a product liability case, no matter how good the facts and evidence. In the late 1980s, Greg Cusimano and David Wenner started investigating jury bias and how jurors could fabricate excuses for corporations (that had no basis in the evidence of a case) in order to avoid holding the defendant responsible. As a result of their ongoing jury bias research, Cusimano and Wenner created the Jury Bias Model™, helping plaintiff lawyers to better understand all of the unspoken problems that could result in an unexpected defense verdict. In 2005, Cusimano and Wenner joined lawyer David Bossart and trial consultant Edward Lazarus to develop a case preparation method that considers the potential impact of jury bias and other negative factors for a case from intake through trial. This system, used on cases obtaining over $4 billion in verdicts since that time, has been distilled into the book Winning Case Preparation. It helps you to know and know how to find the potential types of jury bias that you face, and how you can address these during trial so that you disarm the jurors who will fight for a verdict that goes against the evidence during deliberation. This is particularly important in some types of product cases where you and your client are most likely to lose for improper reasons outside the evidence and law. Unlike most trial books based on psychological principles, this one is backed by evidence-based research as well as anecdotal experience from focus groups and trials.

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Moe Levine on Advocacy

Moe Levine has been called “the Shakespeare of Trial Advocacy.” Unlike most of his contemporaries, this collection of closing statements, articles and lectures have not aged because the concepts contained in this book are timeless. Levine’s work is the origin of much of what America’s leading lawyers still do today, and you will find pieces of this book used throughout most of the great trial advocacy books that have followed. As an example, the concept of the jury as the “conscience of the community” was used by Levine in the 1940s. It is not a new, novel and objectionable “Reptile” concept as the defense would like the courts to believe.

With Levine's trying over 2000 civil cases during his lifetime including record product liability verdicts, there is wisdom in his words and a wealth of information in this book for dealing with nearly every defense theme you will ever face. That is why many of the most respected plaintiff lawyers in the country continue to borrow heavily from Moe Levine while obtaining record verdicts today.

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Trial Tactics

This video featuring Rick Friedman and Roger Dodd walks you through a case from case intake to closing statements, hitting case critical techniques. Voir dire, arguably the most important part of a product liability trial, is handled in depth including new jury selection methods used by Rick Friedman. Roger Dodd, the world’s leading authority on cross-examination, discusses his thoughts on constructive cross versus destructive cross, and Friedman addresses his very different method of “dynamic” cross examination. In addition, two of America’s leading product liability litigators, Zoe Littlepage and Rainey Booth, discuss witness preparation and using visuals in product liability cases. This video deals with more than just the issues within trial, but also address factors outside the courtroom that can impact how you try a case, the verdicts you receive, how to handle a loss, and your level of satisfaction with your career.

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Trial by Human

There is little question that Nick Rowley is obtaining some of the largest verdicts in the country presently. Recognized by many as a rare phenomenon in trial advocacy, nearly any of Nick's books and videos will help you improve the way you perform in trial. There are a number of reasons Nick obtains large outcomes in a variety of cases. But perhaps the most important factor, that every personal injury lawyer can improve, is your personal interaction with the client at their home so that you really understand the impact of the loss that your client experiences. Nick’s first book, Trial by Human, is focused on that issue. If you prefer video, this issue and many more are included in his video sets. In order of preference for product liability cases, we suggest Connecting with the Jury, Nick Rowley at Take Back the Courtroom IV, and Jury Selection and Opening Statements.

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Grief and Loss

Identifying and Proving Damages in Wrongful Death Cases

If your malpractice case involves a death, there is no better resource for preparing and trying your damages case than Grief and Loss. This book originally came to Trial Guides upon the recommendation of trial consultant David Ball, who suggested it contained important ways to present damages in wrongful death cases. Written by one of the nation’s leading wrongful death lawyers, Robert Hall, and grief counselor Mila Ruiz Tecala, the book provides a much better understanding about what the family is going through, and will go through as a result of the death. The survivors’ losses are invisible, difficult to quantify, and often incomprehensible. This book instructs you how to communicate those intangible damages to the adjustor, a mediator or a jury. It also discusses differences in the death of a spouse, a parent, or a child, and how each of these types of cases must be handled differently. Applying the strategies in this book, you can show jurors and other decision makers that a family who experiences a death has not one loss, but a network of losses. This book will also teach you how to convey to the jury and decision makers that a death in the family is the death of that family.

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Reptile

The 2009 Manual of the Plaintiff's Revolution

Reptile is the third in the trilogy of “must read” books for product liability lawyers. Trial consultant David Ball and nationally renowned trial lawyer Don Keenan have written a sensational book on trial advocacy that is equally loved by plaintiff lawyers and fought by defense counsel. The Reptile method builds upon Moe Levine’s “jury as conscience of the community” arguments, by “spreading the tentacles of danger” from the defendant’s conduct into the lives of the jury and those they love. This makes clear that the negligence of the defendant that hurt plaintiff also poses danger to their friends, family and themselves. Based upon the Triune Brain Model created by neuroscientist Paul MacLean and internationally renowned marketing researcher Clotaire Rapaille, Keenan and Ball suggest that the oldest part of the brain (the Reptilian Brain) in the jurors will make clear that the only “safe” verdict is to decide against the party that endangers the public. One of the biggest benefits of the Reptile method is that many jurors who might otherwise be biased against your client will punish rule breakers, creating massive verdicts for the plaintiff in venues where the defendant will least expect them. Reptile is best read after Rules of the Road™ and before David Ball on Damages 3. We suggest this order because David Ball on Damages 3 integrates what you learned in Rules of the Road™ and Reptile, then combines those methods with David Ball’s own effective methods for maximizing damages.

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