Trial lawyers are familiar with the idea that their case should have a theme. In my recent CSI post, I presented some anecdotal evidence that jurors are influenced by TV shows like CSI. If that's true, is it possible for a plaintiff's lawyer to give their civil case a criminal theme?
In fact, that's just what Mark Lanier did at his Texas Vioxx trial. Although I didn't read his opening, I heard through the grapevine that Lanier presented it like a criminal lawyer. It was a way to deal with the problems presented to the plaintiff by a Republican, tort-reform-minded jury: even if they were skeptical of civil plaintiffs, they were certain to be tough on crime. So the opening was organized based on the analogy of a murder trial: Lanier said he would show that Merck had the motive, big profits, and the means, Vioxx, to cause the decedent's death. In the motive section, he talked about Merck's rush to get Vioxx on the market no matter what the cost; in the means section, he talked about the science of Cox-II inhibitors; and in the "cause" section, he talked about the scientific evidence of case-specific causation.
The things I've heard about Lanier's opening are confirmed by an NPR report. The criminal theme certainly wouldn't work in every case, but it might in a case in which the evidence supporting punitive damages is particularly strong. Whether Lanier's strategy was the key to his success in Texas is open to debate. It seems that Merck's lawyers might have thought so, however, given that they borrowed the criminal theme themselves in the second New Jersey trial, as explained in my earlier CSI post.