Herpes Verdict Proves Adage May Be True

The $900,000 pain and suffering verdict (which equaled the amount sued for) in a case brought by a woman who contracted herpes after consensual sex with a dentist brings to mind one of best legal articles I ever read about obtaining large verdicts.

First, the facts.  According to an article in the Los Angles Times, Plaintiff  was looking for a long-term relationship and had sex with the Defendant on the fourth date.  She insisted that he wear a condom and he removed it without her knowledge or consent.  Afterward, he told her (in bed) that he had herpes but that  he did not have any lesions at the time.  She asked him to leave and she showed signs of herpes eleven days later.  She filed a negligence and battery claim against the Defendant.  

 Oregon Live reports that the defense lawyer said the following in the presence of the jury: "Grow up. Come on. You’re an adult. He’s an adult. They had sex. … The point is she is not some little innocent victim."  Defense counsel is also reported to have painted the woman as a money-hungry. "Go for a million — that’s plaintiff’s message. … . God bless America. Go for it. Got some coffee to spill on me?"   The jury found 75% fault on Defendant and 25% fault on Plaintiff.

All of which reminds me of the law article I mentioned above.  I read it over 20 years ago and no longer have a copy of it.  But, the was written by a trial judge in New Jersey and was titled something like "How To Get A Million Dollar Verdict."  The judge identified three factors that led to million dollar verdicts:

1. A weak liability case.  Why?  Cases with strong liability are settled and thus the odds are that there will not be a trial in the case.  No trial, no million dollar verdict.

2.  A case with significant but not catastrophic damages.  Why?  A case with huge damage potential frequently will be settled on some basis, even if liability is thin.  But, there has to be significant enough damage to reach the $1,000,000 threshold.

3.  A case where the defense lawyer who is a jerk generally or makes a jerk-like mistake that inflames the jury. 

What is the significance of this last factor? 

Juries don’t like jerks.  They don’t like plaintiffs or defendants who are jerks and they don’t like lawyers who are jerks.

Plaintiffs who are jerks will lose cases they should win or receive a lower verdict than they would have otherwise received.  Defendants who are jerks will lose cases that they should win or will lose more money than they otherwise would have been ordered to pay.

And when a defense lawyer is a jerk it will cost his or her client money. 

Some defense lawyers are always jerks.  (To be sure, there are plaintiff lawyers who suffer from the same affliction. But today we are talking about defense lawyers who are jerks.  We will talk about plaintiff’s lawyers who are jerks some other time.)  These defense lawyers simply can’t help themselves – they show up in court and their hatred for plaintiffs, plaintiffs’ lawyers, and people in general ooze out of them like pus from a necrotic wound.  Some of them are good enough to fake it for a while, but in a day or two or three the thin layer of skin covering the sore breaks open and the purulent drainage of hate begins.

I recall a Tennessee lawyer who fell into this category.  People used to joke that my mentor, who had multiple cases against this lawyer over the years and always did very well in those cases,  should take out a insurance policy of the life of the defense lawyer.  My mentor, they said, had an insurable interest in defense counsel’s life because defense counsel’s conduct materially increased the value of every case my mentor had against him.

Then, there are defense lawyers who do something in the presence of the jury that allows the jury to conclude that the lawyer is a jerk at that place and time even though the lawyer is not ordinarily a jerk .  This usually occurs when counsel gets overly emotionally involved in the case for one reason or the other and  pushes the envelope too hard to win a case.  There is nothing wrong with pushing the envelope – we have all done it.  The risk, however, is that you will push too hard and risk alienating the jury.  And, when a defense lawyer goes too far,  he or she can turn a modest case into a large case or even a winning case  into a losing case.  

And that is exactly what the trial judge from New Jersey was communicating over 20 years ago.   Jerks, or people who acts like jerks at any given moment, can turn a challenging plaintiff’s case into a million dollar verdict.

So is the defense lawyer in the herpes case a jerk?  I have no reason to believe he is.  But the argument he made was quite aggressive and was made in an effort to link the Plaintiff to the McDonald’s hot coffee case and ridicule her.   The size of the verdict, and that fact that it was in the exact amount of damages requested  tells me that the jury did not like the way this woman was treated, either in the bedroom or in the courtroom.

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