By Margaret Cronin Fisk
(The National Law Journal)
She recognized the tragedy but proved that Suzuki's product had not caused it.
ATTORNEY: Suzelle M. Smith, 43
FIRM: Los Angeles' Howarth & Smith
CASE: Heath v. Suzuki Motor Corp., CV 295-164 (S.D. Ga.)
Consumers Union ran an article in 1988 contending that its tests of the Suzuki Samurai showed that the Samurai was prone to roll over during simple maneuvers. The article, says Suzuki defense counsel Suzelle M. Smith, caused a massive decline in the Samurai's public reputation; in some quarters, she notes, the vehicle is known as "the Flipmobile.” The Samurai was also the object of a number of products liability actions brought by plaintiffs claiming injuries caused by the Samurai's alleged propensity to roll over.
When defendants are faced with bad publicity, the standard approach is to suppress any mention of it in trials. In products liability trials involving the Samurai, Suzuki followed this approach, trying to keep out any references to the Consumers Union charges, Ms. Smith notes. But the company realized this was an impossibility, she says. "Everyone had heard about it. It had permeated the culture." During trials, she adds, "everybody's experts talked about it."
Consequently, when Ms. Smith was called in to defend a products liability action in Georgia against Suzuki brought by a young paraplegic, "we decided to hit it straight on.” Suzuki decided to confront Consumers Unions as well as the plaintiff. "What I did was to tell the Consumers Union story, that Consumers Union went after the Suzuki Samurai, that the tests were rigged and that Suzuki was suing Consumers Union."
- Confront bad publicity and rumors.
- Study opposing counsel's earlier courtroom victories.
- Avoid a highly technical defense in this kind of case.
- Keep examination short and simple.
It is essential, she believes, to confront such attacks or well-known rumors: "If you don't confront them head on, you may lose the jury to innuendo." At the end of this trial, the Georgia jury found no defects in the Samurai. The verdict was one of the biggest defense wins of 1996.
Ms. Smith was brought in by Suzuki General Counsel George Ball as a national trial counsel for Suzuki after the company was hit with a $90 million verdict in St. Louis in 1995. Rodriguez v. Suzuki Motor Co., 902-0869 I (Cir. Ct., St. Louis). That verdict was ultimately reversed and will be retried. "Mr. Ball was looking for a new approach," Ms. Smith notes, specifically a female attorney to soften the corporate image, but also a high-profile litigator who had experience in representing plaintiffs as well as defendants.
Ms. Smith fit the criteria perfectly. She is a name partner at Los Angeles’ Howarth & Smith, a small but highly regarded litigation boutique that handles both plaintiffs’ and defense work in civil cases. Despite its size, the firm is a primary outside counsel for Georgia-Pacific Corp. As plaintiffs’ counsel, Ms. Smith has won settlements and verdicts against the National Football League; Southern California Edison Co.; the city of Irvine, Calif.; General Electric Co.; and Sears, Roebuck and Co. As defense counsel she has won jury trials and summary dismissals for such companies as Owens-Illinois Inc. and Marriott, as well as Georgia-Pacific. In 1996, she represented one of the contestants to the will of the late heiress Doris Duke and was a primary force in having the original executor removed; her client became one of the trustees of the Duke charitable estate. Ms. Smith often handles cases with her partner, Don Howarth, who won one of 1996's largest plaintiffs' verdicts.
In the Georgia case, the plaintiff, James Heath, had been injured in September 1991 when the 1987 Samurai he was driving went out of control and rolled over after being clipped by a Jeep Wrangler. Mr. Heath was ejected from the vehicle; his passenger, who was also ejected, died of her injuries.
Mr. Heath's attorney was James E. Butler Jr., of Columbus, Ga.'s Butler, Wooten, Overby, Pearson, Fryhofer & Daughtery, who had won the $90 million verdict against the company and has made a long career of persuading jurors to hit automobile companies with massive verdicts.
When Ms. Smith was hired as one of Suzuki's trial counsel, she says, she began to research Mr. Butler “because I knew I would eventually face him. I asked for the transcripts for Rodriguez. I also got the transcripts and the Court TV clips of the Moseley trial to see him in practice." Moseley was a products case against General Motors Corp. in which Mr. Butler won a $150 million verdict. Ms. Smith is a firm believer in getting to know one’s opposing counsel and suggests that attorneys get transcripts of openings and closings of prospective opposing counsel, "to get a feel for them."
She learned that "generally Jim Butler tries to personalize the trials. He attacks the corporate defendant, the opposing counsel and the witnesses personally. To some extent, you might think, the judge will not allow this," she adds. "But Butler is relentless, and there is only so much a judge can do." To counter this assault on the defense's credibility she did not respond loudly or emotionally, she says. "I tried to calmly defend the integrity of Suzuki, myself and the witnesses and let the jury decide which approach rang more true."
Ms. Smith established a defense for Mr. Heath that was aggressive but succinct. Each portion of the trial was much shorter than the defense Suzuki had used in Rodriguez. Her first major challenge came in jury selection. "I began by asking the jurors if they were aware of the Consumers Union test." This could be dangerous, she says. "[It] may reinforce what you don't want to reinforce. But you have to take it on." The judge dismissed any jurors who were readers of Consumer Reports.
Plumbing Possible Prejudice
She also tried to detect any prejudice against foreign corporations and her planned Japanese witnesses. “I had to be careful. I couldn't let them believe that I thought they were prejudiced, but I have to raise the issue and get it out front." To avoid implying that she thought they harbored a prejudice, she was indirect, noting to the jurors that "the Japanese witnesses would be using an interpreter, which would make the examination slower and more cumbersome. I asked if that would be a problem."
She addressed the issue of sympathy, too. “This was a young, local plaintiff in a wheelchair. I asked them if they could really turn him away. There were some people who said they couldn't do it." The jurors who didn't say they would be unable to reject a suffering plaintiff, she says, implicitly promised to be fair to the defendant
In her opening, Ms. Smith developed her countertheme. "This was a tragedy but it was not Suzuki's fault. The two drivers caused this accident. This company had built a good vehicle."
In cases of this type, she avoids putting on a highly technical defense. "You have to keep it very simple and commonsensical. It has to be packaged in a way that the jury can understand,” she adds. Being too technical can play into the hands of the plaintiffs' attorney.
Most accidents involving sports utility vehicles can be directly linked to driver error or the actions of another vehicle, she says. Mr. Butler and other plaintiffs' attorneys, she contends, "try to focus the trial on what they claim is an unstable vehicle to minimize that." To counter this in Heath, she says, "I brought the case down to the basics."
Her cross-examination of the plaintiff's principal design experts, Wade Allen, which lasted a few hours, was very different from his cross in Rodriguez, in which he testified for several days. The longer cross revealed some points for the defense, she says, "but the nuggets were lost in the volume and weight of it."
After the Consumers Union article appeared, Mr. Allen was hired by the National Highway Traffic Safety Administration to do a study on sports utility vehicles, including the Samurai. In Heath and Rodriguez, he testified that the Samurai was unsafe but, Ms. Smith says, "he never told anyone at the National Highway Traffic Safety Administration about his opinion of the Samurai. He didn't say it was a deathtrap until he was testifying for plaintiffs' lawyers." With plaintiffs’ experts, she notes, she is not afraid of being tough. Juries don't really mind attacks on experts, she believes.
During cross-examination, she says, "I'm not hostile, but I am firm. I do not shout or scream or call anybody names. I won't beat it to death, but I'II ask it four or five times so the jury knows the witness is being evasive. I will deliberately hold onto the point until I think the jury has got it. Then I move on. I’m very polite and respectful, but I've had jurors tell me I was mean. I won't back off if the witness is sweating and uncomfortable."
While Mr. Allen was on the stand, Ms. Smith continually confronted him about his lack of written or other formal reports to anyone at NHTSA concerning his opinion of the Samurai. During his testimony, she would also read to him portions of a NHTSA report denying petitions to recall the Samurni, using Mr. Allen to inform the jury about it and getting him seemingly to affirm the NHTSA conclusions.
Her own case in chief was very brief. She started with race car driver Cale Yarborough, who had also testified in Rodriguez. In that case, he had been brought on after several technical witnesses, thus losing much of his impact. "I put him up so he could talk in layperson's terms," Ms. Smith says.
Mr. Yarborough had tested the Samurai offroad and through maneuvers. "He testified that the vehicle is stable and handles better than any sports utility vehicle on the road," she says. "His testimony went very, very well." Particularly effective was his testimony that he felt the Samurai saved his life one night when he encountered a concrete block in the road; the Samurai kept him from hitting the block or going into a ditch.
She presented only three more witnesses – a Suzuki executive who had designed the Samurai, an engineer and a police officer.
"There were others planned, but I cut the case way back,” she says.
The jury was out for three hours. It returned a finding of no liability June 11, 1996. The plaintiff's post-trial motions to set aside the verdict were denied two months later. An appeal is pending.