Attorneys defending a personal injury case must strike a delicate balance between vigorously representing their client without coming across as cold and unsympathetic to a plaintiff’s condition. And in the latest episode of CVN’s Trial Technique Spotlight, Shane Read, one of the country’s preeminent trial presentation experts, analyzes how Allison Brown masterfully struck that balance in her opening statement at a talc trial against Johnson & Johnson, laying the groundwork for a defense verdict in the case.
Brown, of Skadden Arps Slate Meagher & Flom, represented J&J at trial against Vickie Forrest, who claimed her use of Johnson's Baby Powder caused her ovarian cancer. The 2019 trial was in Missouri’s 22nd Judicial Circuit, in St. Louis, where, a year earlier, another jury had awarded $4.69 billion to a group of plaintiffs with similar claims against the company.
Early in her opening statement, Brown acknowledged the gravity of Forrest’s cancer. “Many of us have had cancer touch our own families and we know what a horrible thing it is to go through,” Brown told jurors, adding that everyone was heartened knowing Forrest was in remission. “Whatever side you’re on,” she said, “as a human being, that is a good thing.”
Read says Brown’s acknowledgment of Forrest’s cancer and her sincere expression of sympathy were critical in helping to humanize J&J.
“What Alli Brown does so well is that she is so authentic and sincere in her feelings for a plaintiff who has had ovarian cancer and suffered through it,” Read says, adding that Brown’s sympathy over the situation wasn’t expressed simply through the words she used but how she used them. “You can tell it by her eye contact, her emotions. She’s not reading notes. And her sincerity humanizes Johnson & Johnson by the fact that she cares about the plaintiff, even though the plaintiff is bringing very serious allegations against her client.”
That brief but powerful acknowledgment allows Brown to then focus on what she says is the scientific evidence that will clear J&J.
“And in defending this case and proving to you the safety of Baby Powder, nothing [defense counsel Michael Brown] or I do is intended in any way to disrespect Ms. Forrest or to take away from what she went through,” Brown says. “But you’re going to hear the science and the evidence in this case that’s going to show that Baby Powder had nothing to do with her ovarian cancer.”
“By just connecting with the jurors on a human level,” Read says, “she is then able to say that we want you to focus on the facts and not be swayed by the emotions that the plaintiff’s attorney is going to bring in this case.”
That kind of acknowledgment of a plaintiff’s condition is critical to avoid potentially alienating or angering a jury as you raise your defense. But he said it’s an acknowledgment attorneys often fail to make, because of their laser-like focus on the defense itself.
“Most defense attorneys never do that,” Read says of Brown's acknowledgment. “They’re often in denial, and then they just go into a battle against the plaintiff, instead of the approach that Allison Brown took. [Brown’s approach is] a wonderful tip to learn from.”
Jurors ultimately cleared J&J of liability for Forrest’s cancer, in a trial where her attorneys sought $20 million in compensatory damages and up to $5 billion in punitives.
And Read’s analysis of Brown’s powerful opening statement acknowledgment is part of CVN’s new series Trial Technique Spotlight, with Shane Read.
Read is a nationally recognized expert and award-winning author who has helped thousands of lawyers transform their deposition, trial, and oral advocacy skills through in-house training programs, one-on-one coaching, and keynote speeches. And in each episode of Trial Technique Spotlight, he’ll use CVN courtroom video to detail the verdict-winning trial techniques the nation’s top attorneys use, and how to best use them in your own cases.
Watch for future episodes of Trial Technique Spotlight throughout each month.
Email Arlin Crisco at firstname.lastname@example.org.
Watch Shane Read break down how Mark Lanier used the Rule of 3 in his opening statement of a blockbuster talc trial against J&J.
Watch Forrest, et al. v. Johnson & Johnson, et al. on demand.
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