Trial Reflections: The Challenges and Rewards of a Team Approach to Managing a Multi-Plaintiff Case

by Matthew Shafner

On November 2, 2007, a fuel tractor-tanker crossed into the opposite lanes of I-95, killing its driver and two other drivers and injuring three persons, in addition to causing property damage and environmental clean-up costs. Six different plaintiffs represented by six different law firms filed suit against two primary defendants. Suit started in New London Superior Court but after 4 years of motions, status conferences and lengthy discovery, the case was transferred to Complex Litigation in Hartford and ultimately tried to a verdict in April 2013. I found the experience of working closely with other counsel to represent six unique plaintiffs to be both rewarding and instructive.

In our case, he six attorneys each had different personalities, trial techniques and, of course, egos. There are no working rules for such a situation and frequently the judges would simply leave various issues to the six plaintiff attorneys to resolve. We knew early on that the police investigation report would not be out soon (it took over a year for us to obtain the report) so we met early on to share information. An early statement from an eye witness was helpful, indeed critical, in implicating a second truck.

We next started planning discovery and quickly agreed on the two lawyers who would take the depositions of two principal officers of the prime trucking company. We next arranged to take a video conference deposition of the second truck driver in Pennsylvania, while Peter Bartinik, Sr. and other counsel participated from Hartford. I traveled to Pennsylvania to keep things honest with the video format.

Motions to Strike, summary judgment and an interpleader by the trucking company’s insurance carriers presented more collaboration and joint decision-making by the plaintiffs, as to who would brief and argue the plaintiffs’ oppositions. After the case was transferred to Complex Litigation in Hartford, Judge Grant Miller handled all pretrial issues, including issues such as how many jury challenges would be allotted to each party. Because of an interpleader proceeding by the liability carrier, our “gang of 6” entered into an arbitration agreement with Judge Martin to decide relative percentages of the plaintiffs’ recoveries (but not fixed dollar amounts). This was resolved based on a half day of testimony by plaintiffs, together with written submissions.

Not surprisingly, scheduling of trial witnesses in April 2013 was more problematic. We agreed that liability had to be presented first and that Carl Secola would do the main opening statement, as the liability issues were the same for all plaintiffs. I then followed up only briefly as to liability, then focused the rest of my opening on my client’s unique damages. This was then followed by each plaintiff’s own opening relating to each plaintiff’s damages case, which was followed last by Attorney Secola’s client’s damages case. The purpose of this approach was to make certain liability and damages were kept separate. Despite these various moving pieces, the entire opening for all plaintiffs took less than 3 hours.

We also agreed on the sequence of liability and damage witnesses, which were designed to follow (as much as possible) the sequence outlined in the opening. We also agreed that each plaintiff should present his or her damage witnesses bunched together as much as was reasonably possible. Our trial judge (Kevin Dubay) was flexible as to trial schedules, which allowed a logical and reasonable presentation.

Daily meetings among plaintiffs’ counsel during trial were critical in deciding who was going next, what was included and what was to be left out of each witness’s testimony. We were fortunate to find a nearby unused conference room in the Hartford courthouse for daily lunch sessions.

As you might expect, having 6 lawyers was both a blessing and a curse. Most issues generated at least two conflicting opinions and always a couple statements of “whatever you decide is ok with me”. For the most part, however, egos were kept closely in check (although on occasion there was a flare up, which was consistently tempered by Shelly Graves, the exquisite voice of reason and moderation). Given the personalities involved, the trial could have resulted in chaos and a disaster for all plaintiffs. But it did not.

We had an ELMO presenter courtesy of Dina Fisher which was used for much of the liability demonstrative evidence. I brought in a few poster board enlargements to offer some diversity in visual presentation. All general liability costs (subpoenas, exhibits, etc.) were shared equally.

Closing arguments were done in the same sequence as the openings.

Looking back, while all the plaintiffs’ lawyers put on their case with their own individual styles, each lawyer also was disciplined enough to suppress his and her individuality long enough to allow the group to put on the case effectively and efficiently. If one lawyer had attempted to dominate the group, we all would have lost.. The amazing thing was not that we had some bumps in the road along the way, but rather that we were able to get through these bumps to put on a strong case for each of our clients and to benefit the whole which was greater than the sum of its parts. The case was a unique experience for all of us and was successful due to careful lawyering, combined with lots of careful planning, meetings and conference calls.

Matthew Shafner is a partner with Suisman Shapiro Wool Brennan Gray & Greenberg, P.C., in New London, and is the recipient of the 2013 Connecticut Trial Lawyers Association Lifetime Achievement Award.