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"Always blame the empty chair"

How to win really big jury awards? According to one who knows, one key is to put the worst possible construction on the opponents' inability to produce one or another piece of evidence:

Stephen D. Susman of Houston's Susman Godfrey was credited with last year's fifth-largest jury verdict -- $130 million trebled to a whopping $420 million in a federal antitrust case -- in large part by blaming former employees of the defendant who were not available to answer for documents that they had authored and their employer could not explain...[U.S. District Judge Mariana Pfaelzer later vacated the award].

...Susman identified a number of courtroom maneuvers that seemed to work, beginning with "blaming the empty chair" -- former Tyco HealthCare Group employees who were not available to testify -- for documents they had written that made the company look bad, but which other company employees could not explain.

"Always blame the empty chair, always blame the missing documents: the plaintiff in a case always needs to complain about the witness the defense doesn't put on the stand and criticize the defense for documents it doesn't show the jury."

Susman also showed the jury a two-minute montage of the key people on the other side, "trying to show that they were being evasive, which was very effective."

(Peter Geier, "Blame empty chairs", National Law Journal, Jun. 5, not online)



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.