[Drug and Device Law] "You are unwise to lower your defenses!"
We do not have a case to blog about this week. Things in the DDL world are slow. Well, that is not exactly right. In fact, maybe it is exactly wrong. There is plenty going on, but virtually all the bloggable (that is, interesting and not yet already well-publicized) DDL cases involve our firm, Reed Smith, in some way, and blogging about such cases is like running through a gauntlet and minefield. It is probably a good problem to have – unless you are staring at an empty computer screen and Bexis is clamoring for content. So where does that leave us?
Usually we run into these doldrums during the Summer, when courts plunge into a blissful torpor. The first time we completely discarded the DDL script and blogged about no case was the Summer of 2011, when we went fully self-indulgent (or, at least, more self-indulgent than usual) and told a story about a deposition against a plaintiff lawyer who claimed to be the provocation behind Star Wars. In truth, it is probably the single best blog post that emerged from our clumsily pecking fingers. The folks at Abnormal Use recently linked to that post, so the number of views spiked. Our cheap immortality grows yet again.
So now comes our Return of the Nerdy. Put plainly, we are embarrassingly excited about the release of The Force Awakens later this week. Our childish enthusiasm is marred only a little by the grim undercurrent mantra of "Please Please Don't Suck". The prequel trilogy left psychological and aesthetic scars. From what we hear, this new entry is set 30 years after Return of the Jedi. And, in fact, it is about 30 years since Return of the Jedi. JH Abrams has taken the helm from George Lucas, which is almost certainly a Very Good Thing. Abrams did a nice job with the Star Trek reboot. And let's not forget that Lucas did not direct the best Star Wars film, The Empire Strikes Back, while he did oversee the excrescence called The Phantom Menace. (The Simpsons episode where Bart watches in disbelief how that film centered on a tariff dispute is absolutely precious). The great Lawrence Kasdan wrote The Force Awakens screenplay. John Williams composed the score. We are weak-kneed with anticipation.
There have been abundant plot leaks. One persistent rumor is that the action gets rolling in The Force Awakens with the discovery of a grisly souvenir of that most iconic moment in all of the series: Luke's severed arm clutching a light saber. The cast is formidable. It contains the usual boatload of British thespians who fill our film and tv screens with excellence. [Quick quiz: Star Wars filmed many scenes at Pinewood Studios outside London, which is/was the home of the two other great film franchises, James Bond and Harry Potter. Can you name an actor who appeared in all three franchises?] Two relative newcomers, Daisy Ridley and John Boyegas, play the new generation of rebel heroes. Andy Serkis (who hissed the Gollum part in the LotR and Hobbit movies) will appear, though we do not if he will really appear or if he will be merely another CGI manifestation. American actors are also well-represented. Adam Driver is said to play the latest Evil Sith, which departs only a little from his role in Girls. We know that Han Solo and Leia return. But there are weird speculations about Luke's role in this outing. His face is not on the poster. He has shown up in none of the trailers. Has he gone to the Dark Side? What would that look like in this day and age. Is he holed up in a Houston skyscraper, assembling inventories of imagined grievances?
We are all in.
This Star Wars excitement is not entirely irrelevant to our 9-to-5 job. As Fall turns into Winter (at least according to the calendar, if not the thermometer) we annually devote a session of our Penn Law School to story-telling. There are certain patterns of stories that resonate with audiences, including juries. Those stories are not telling juries anything new. They are retellings. They fit with preloads. Remember how Plato claimed that all knowledge is really memory? Most of those story patterns favor underdogs. E.g., David vs. Goliath. It is not enough for defendants to tell the story of “No it’s not.” Nor is burden of proof a winning narrative. Joseph Campbell wrote about the pattern of the heroic legend, with a status quo, disruption, call to adventure, learning, quest, crisis, encounter with the Other, triumph, change, and new status quo. Or something like that. It seems as if a defendant that invented a life-saving or improving product would have something interesting to say. Where are the compelling defense stories? Isn’t there a quest? Didn’t clever scientists, doctors, and engineers encounter obstacles and devise brilliant solutions in creating a product that improved the lives of thousands? Surely there is a way to tell a product development story that is at least as riveting as the plaintiffs’ project of appealing to reptilian fears. For the defense, not even trying to offer such a counter-narrative (and remember, there is no try; just do), is like failing to defend yourself against a homicidal foe – like what Luke Skywalker does vs. Darth Vader in Return of the Jedi, which prompted Vader to utter the quote that appears at the head of this post.
The next time we hear a defense lawyer begin an opening statement with “I am proud to represent the men and women of X corp. who go to work every day trying to better peoples’ lives” without some concrete follow-up as to how that applies to the product at issue, upset we will be. (We adopt Yoda-syntax when exasperated.) The best plaintiff lawyers do lots of focus groups. By contrast, too many defense lawyers fret about how anything they say might open the door to something awkward. Consequently, storytelling creativity tilts toward one side of the room, the wrong side. That is frustrating. The truth is that these cases are hardly ever about David vs. Goliath. If anything, they represent a massive wealth transfer from the incredibly rich to the indecently rich. The next time you fork over a copayment for a statin, consider what percentage of that payment ends up in the hands of a plutocrat plaintiff attorney who turns on the air-conditioning in his Texas mansion so that he can also turn on the fireplace to create a charming, fake Christmas tableaux.
We are issuing a call to adventure. From what we hear, a key moment in The Force Awakens is when a storm trooper realizes that he has been on the wrong side, that the people he always thought were villains are actually the good guys. We need to inspire a similar epiphany in jurors.
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Posted By Steve McConnell to Drug and Device Law at 12/16/2015 07:30:00 AM --
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