Latest / Coopers' Code / Tesla on Trial: $329,000,000 Autopilot Judgment with Brett Schreiber, Part 2

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Tesla on Trial: $329,000,000 Autopilot Judgment with Brett Schreiber, Part 2 · Coopers' Code

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I have an exhibit I use in all of these cases, and I call it
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Elon's greatest hits. It is his greatest hits of of
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misinformation, disinformation, misrepresentations and outright
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lies. And I play it.
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And you know, there was once a time Tesla would even deny that
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he had even made these statements.
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And then you bring multiple motions to compel.
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And now they have gotten to the point where they admit that he
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said these things as a corporate agent for Tesla.
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And the reason they have to do that is because if they don't
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give me that admission, as they've now been told by
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multiple courts and multiple jurisdictions across America,
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well, Schreiber's going to have to take his deposition.
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And they don't want that. Yeah.
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Have you taken this deposition? Howdy and welcome to the show.
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Cooper's Code focuses on legal issues and notable
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practitioners, distilling wisdom so we all achieve the best
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results for our clients. I'm Miles Cooper and I'm very
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excited for this After action review where we sit down with
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Brett Schreiber from Singleton Schreiber.
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We discussed what it took to achieve the first jury verdict
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against Tesla and what a verdict it was.
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What this case was, was the first third.
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Party Autopilot defect case to go to trial in America.
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And what that means is this was not something where the
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plaintiff was the driver of the Tesla on autopilot.
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This was a young couple, 22 years old and 26, who were
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minding their business at the end of AT intersection in Key
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Largo, FL, having lawfully parked beyond the edge of the
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road behind some signs and had done nothing other than go
1:41
fishing that evening. And we're packing up, looking at
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the stars and talking when a Tesla on autopilot drove through
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that intersection, through that stop sign, through the flashing
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lights and the signs at over 70 miles an hour colliding with
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them, causing the 22 year old young woman to lose her life and
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her 26 year old boyfriend to be forever injured.
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So that in a nutshell. Is is what the case was about.
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Help us understand how you took what you've just described and,
2:15
and picked a jury, got the story told and any of the pivotal
2:23
moments that that unfolded in the courtroom that you feel
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helped the jury really understand the magnitude of the
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harm and, and, and why Tesla really had to be held
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accountable. For this.
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So a couple of things set the stage.
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It's July in Miami, FL. The first thing I did was
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purchase 2 linen suits. I needed some breathable fabrics
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if I was going to actually. And I grew up in in, in the
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three O 5 S In some ways it was a bit of a coming home, but I
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left 25 years ago. We're in federal court,
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beautiful courtroom, but it's a federal courtroom.
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The judge is, you know, 15 feet up in the air, you know, a
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hundred 100 feet away, and folks show up for jury duty and, and
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begrudgingly gave us a modified jury questionnaire.
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She had a very truncated one that would have been effectively
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meaningless. So she agreed to some minor
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modifications, and we got a stack of 100 jury questionnaires
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as 100 jurors walked into the courtroom, which for anybody who
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tries cases knows, is a really rough spot to be in because we
3:48
like to ask the court to let us have the jurors fill out the
3:50
questionnaire. And then maybe, I don't know,
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give us an hour overnight would be amazing, but a lunch break to
3:57
review the questionnaire so we can ask for meaningful follow
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up. Yeah.
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That that wasn't a thing. So 100 people walk in with 100
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questionnaires and we just start powering through and as they're
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answering questions and the judge is doing her follow up.
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I literally managed to get through the stack as she's
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finishing an hour and change. And I mean, I'm just boat racing
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through this thing and just making a couple quick notes here
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and there. And, you know, one of the things
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I'm, I'm sure you've talked about with others, but they
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don't really teach you in law school is that, you know, jury
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that the doing of Wadir, while it's obviously important and,
4:30
and you have to have, you know, kind of approaches and skills
4:33
with respect to engaging people, You also have to be pretty good
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at arts and crafts to convert all of your pieces of paper in a
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way, because this was a courtroom where you had to what
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year, the whole 100 at a time. So again, really meaningful
4:46
conversation when you're talking to 100 people at a time and
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given 30 minutes to do so. And what I really loved the
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story within a story is I finished taking notes of the
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last person's thing. And I mean, I'm scribbling,
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scrambling, going through the questionnaire, listening with
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one ear. My local councils are there are
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dray consults there. We're all, you know, passing
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notes trying to do this. And the judge finishes and it
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was about 10:30 in the morning. And she goes, all right, Mr.
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Schreiber, you can, you know, inquire of the, of the panel as
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well. Your Honor said, I know you had
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mentioned wanting to have, you know, restroom breaks, you know,
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twice, you know, in the morning, in the afternoon would now be a
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good time. No.
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It's like, can I get a minute to like?
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And I don't have a minute. I Yeah, my stuff is all over the
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place, right? Like it is.
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It is not nearly as coherent as I would like, but whatever, you
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know, you got what you got and you get what you get.
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And you know, as I tell my kids, you get what you get.
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Don't throw a fit, right? And so I didn't throw a fit.
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I stood up and I went and we had some decent data points from the
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questionnaire and, you know, we got people engaged.
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What was cool about this one was, you know, gave us a big
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deal. People knew.
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It was a big deal. And so it was definitely one
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that wasn't met with a lot of, you know, arms crossed and what
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the hell are you wasting my time here?
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This was one people actually, I always one question I always ask
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at the end of Wadir is who here wants to be on this jury?
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And I had quite I had more people raise their hand in this
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trial than any case I've ever had.
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I want to ask. You why you asked that question?
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Because it tells me something. It's a it's a good data point
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more often than not. I mean, it maybe doesn't
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identify some plaintiff jurors potentially, but depending on
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where they are in the chute, you know, I just find it's it's
6:44
effective. It finds that people who is
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engaged. I want usually at least one or
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two people to be engaged, right? And I had a number of them that
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really wanted to be on the jury. We had just as, and I tell him,
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I said, look, and I tell him that.
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And you know, I said, this might buy your ticket out of here,
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right? But, but let me know.
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And, and I think it's a, it's also, it's a, it's a credibility
7:07
booster, right? It, it shows that you, you
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really are listening and, and you want to know if they really
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want to be here, if you really want to be here.
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And and that is, I will say one of the struggles of being on a
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30 minute clock is it doesn't give you the opportunity to
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build some of the credibility that you can if you have a three
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hour or three day Wadir. So that was that was a, a kind
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of a scary part of this because you don't really you're an inch
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deep in a mile wide at best. And then combine that with then
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rolling into opening statement, which I do that afternoon.
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I mean, we called them and panelled them and I think opened
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all in the same day. That's a lot.
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It was a lot. And it was also because I was
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then told that I think I was given an hour when I had
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prepared an hour and a half. And one of the things is this
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case, and I've had others in federal court have taught me
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there's tremendous value actually in being on the clock.
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You know, I think one of the strongest signs of good
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storytelling is when you've left a lot of good content on the
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editing room floor. It's probably true for podcasts
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as well, right? And I think the the greatest
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anxiety that that trial lawyers often have about trying a case
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is I'm going to forget something.
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I'm going to fail to include some important point that they
8:41
need to hear. But I think a lot of times that
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actually results in, in dilution, right?
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You, you can drown the especially in a case like this,
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you can drown the jury in too much information such that they
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don't know what's important. They don't know what to
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remember. They don't remember if they're
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going to remember some of it or any of it because it's so much.
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I have to imagine that that was probably part of Tesla's
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strategy is this is so complicated. 100 percent, 100%
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that was and. It's all about a driver.
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I mean, and in a in a car, this is, you know, God bless, you
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know, God bless Tesla on this one.
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And they said this is a case about a driver who was on his
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cell phone who dropped it and was fishing around on the floor,
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which he was doing for his phone.
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And they said, and this is also about a case of a car that never
9:41
existed, that there was no car that should have stopped,
9:46
warned, done anything, which again, thank you, Tesla, open
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the door to my argument of you can't show up after saying for a
9:55
decade that you've built the greatest autonomous vehicle the
9:57
world's ever seen and finally come into court and raised as a
10:00
defense, admitting the fact that the car you claimed to have
10:03
invented never really existed. So that was a that was a gift.
10:08
There was a lot of gifts that they gave us in that regard.
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One expert alone by the time his deposition had built $965,000.
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He was about 1.1 million by the time he showed up at trial.
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One guy and you know, he went out and they crashed a bunch of
10:25
cars and, and, and showed that. Oh well, the Subaru and the, and
10:30
the BMW and the whatever it was. See, we went out on our test
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track at Exponent. You know, the Dowd is our
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product people. And you know, none of these cars
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warned and none of these cars stopped.
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And and so why would you expect the Tesla to do that?
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And you know, this is state-of-the-art and, and all of
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that stuff. But none of those are claiming
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that they are full self driving and autonomous.
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Bingo. Was his name O Mr. Cooper?
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That's exactly right. And, and I think that's where,
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again, the jury saw through a lot of it.
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You know, as I, as I told them in opening statement, they would
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have to make a decision was all this testing.
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And I'll tell you what, when Exponent drops that TB file on
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you with, you know, these cars rigged up with all these sensors
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and Gopros and and crash dummies and it's impressive.
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You look at it and go. Wow, yeah.
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But when you then dig into it, you have to ask yourself, as I
11:39
told the jury, is this sound science or does it just sound
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like science? And it sounded like science, but
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it wasn't sound science. And they saw that.
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And, and then we were able to show that for some of those
11:58
experts, at least early on, they weren't even given the data
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about how the crash occurred and.
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There's a a funny story that's that's worth telling.
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We're about a week in and one of the Tesla experts was on the
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stand and there's this woman. She's one of our first jurors in
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the front row. She was a large lady to to put
12:25
it gently, and so she didn't really use the table that was
12:30
kind of on their little arm. It's almost like your like kids
12:32
school table where there's a little kind of thing for them to
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write and it's actually a nice courtroom.
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They all had their own individual screen and nice
12:38
little set up. So they all had their little.
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Kind of pod that they were in and in the jury box.
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So she didn't use that. She would keep her notepad and
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rest it on her chest. OK.
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Kind of using it as a little table.
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Yeah. And they're talking and, and
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Tesla's got one of their people on direct and he's talking about
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the information that, you know, he had received and all of that.
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And we then get up and establish that, you know, they had
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withheld this evidence and and and and this was again where
13:14
Tesla they. They went up a bit too far,
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right? And so they, they go after one
13:22
of our experts about whether or not they had received all of
13:25
this data. Discovery abuse is generally not
13:28
admissible at trial, correct? However, if the defendant opens
13:32
the door to the discovery abuse, you can get there.
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And so I'm sitting there and I've got actually, this is one
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of our witnesses that's on the stand.
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And the day before, Tesla had gotten pretty close to allowing
13:47
us to talk about it. We went sidebar and the court
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looks at us and she's like, no, no, no, they talked about it,
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but they they didn't really. So it didn't get close enough.
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Next day, we got another witness on the stand.
13:57
One of Tesla's blowhard defense lawyers gets up and is going
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after my guide about, you know, did, did the.
14:04
Lawyers tell you about the efforts they made to get the
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information. I'm looking around like, Oh my
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God, they they did it. So I get up on redirect and I, I
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say to my witness, I said, Sir, when you were asked on cross
14:18
examination about the efforts the lawyers made, do you recall
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that He said I do. I look up at the judge.
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She's 15 feet in the air, 100 feet away.
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She looks back at me. We lock eyes.
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She gives me the the chin up. She just tosses her chin up like
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go. I said, Sir, why don't you tell
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us about that? He had been prepped.
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And he just riffs. He just vomits a 4 minute answer
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about all of their abuse. And my lady in the front row who
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uses her breasts as a table just starts furiously taking notes
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and audibly she just goes. And that was one of the moments
15:06
where I was like, I think we're going to be all right.
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I think we're going to be all right.
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They're getting it because her and another woman, at one point,
15:14
they were on with one of their witnesses.
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They were asking him about what he had and what he didn't have
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and whatnot. And she literally looks at the
15:20
woman next to her because we're talking about the stuff that
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they had sent the expert, which didn't include the data that we
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ultimately found. She literally looks at the woman
15:27
next to her. She goes, I bet he didn't have
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the autopilot data. I was like, Oh my God, did she
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just say that? And so again, it was, they were
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getting it. Yeah, right.
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And and we're day 891012 at that point.
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And that I got to tell you, I mean, lucky, you know, from
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trying cases, man, it's, it's hard to read tea leaves, you
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know? And, and you, you know, when you
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look at them, are they, they, are they smiling?
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Are they nodding? Are they not nodding?
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Are they paying attention? Right.
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There's a million things that you can kind of get lost in the
16:03
sauce on, which I try not to do, but you can't help yourself when
16:08
you're spending 8 hours a day in a room with these people.
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A question that that I have is how did you handle the showroom
16:15
versus the courtroom evidence? Was that through a a person most
16:19
knowledgeable because. The juxtaposition there seems
16:22
like that was was very important.
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Yeah, it was generally through. So what we had done is we had
16:26
taken all of Elon's I, I have an exhibit I use in all of these
16:31
cases and I call it Elon's greatest Hits, OK.
16:33
And it is exactly that. It is his greatest hits of of
16:37
misinformation, disinformation, misrepresentations and outright
16:40
lies. And I play it.
16:43
And, you know, there was once a time Tesla would even deny that
16:48
he had even made these statements.
16:50
And then you bring multiple motions to compel.
16:52
And now they have gotten to the point where they admit that he
16:56
said these things as a corporate agent for Tesla.
17:03
And the reason they have to do that is because if they don't
17:05
give me that admission, as they've now been told by
17:08
multiple courts and multiple jurisdictions across America,
17:10
well, Schreiber's going to have to take his deposition.
17:15
And they don't want that. Yeah.
17:17
Have you taken this deposition? No, OK, because I've gotten that
17:20
close. OK, Because I said listen,
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you're not. I have to get an admission that
17:23
he said these things and maybe even why he said these things if
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they give me the admission that he said them, I honestly don't
17:29
really care about the why because it's not true anyways,
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So, but you know, I need, I need to get here.
17:35
And so eventually I get very clean admissions as a result of
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having very clean admissions. Elon's greatest hits, both in
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video and audio become trial exhibits.
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Understood. And then they play just like a,
17:48
you know, with closed captioning so that everyone can read and
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and see. And I get certified transcripts
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and those get marked as exhibits as well.
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And, and so mechanically, that's how we put it into evidence.
17:58
So Elon is perpetually testifying and I use air quotes
18:04
when I say that throughout the trial, his presence is there
18:07
without him being there. Which honestly, I've also found,
18:10
certainly having seen the the level of media attention that
18:13
the case got and the trial got and all of that, it was, it was
18:17
important that he not be there because it would have made it a
18:22
goddamn circus. I didn't need a circus.
18:27
I, I wanted, you know, I, I wanted to push this thing
18:29
through and, you know, path of least resistance and put on a
18:31
clean case and a short case and an understandable case.
18:34
Elon would just be a lot of distraction and bluster and, and
18:38
who knows, right? Who knows what he would say and
18:40
how he'd say it. So having a controlled Elon
18:45
Musk, which is just his testimony, which I would then
18:48
play more often than not with my own experts and say no doctor,
18:54
so and so, right, you know, computer vision, you know, human
18:57
machine interaction expert who's developed autonomous systems and
19:00
vehicles. What do you have to say about
19:02
Mr. Musk's statements there is untrue the day he said them as
19:06
they remain untrue today or whatever the response may be.
19:09
And, and so that's how Elon was in the courtroom without being
19:12
in the courtroom. And and then in other cases,
19:17
what I've established is because I didn't get a chance to take as
19:21
many of the the Tesla employees in that trial as I have in other
19:25
cases, but I play Elon's greatest hits for them in
19:28
deposition. And then I asked them, is that
19:33
statement that he just made true?
19:35
Did that comport with engineering reality in
19:38
production vehicles at the time? And to a person, they all admit
19:44
absolutely not. And what you really then get
19:48
Miami was a story of betrayal to the ordinary consumer.
19:53
The case that I was going to be trying against them right now in
19:56
Oakland was a story of betrayal to the ordinary consumer.
19:59
It was another third party case that has been resolved.
20:03
But it was also a story of betrayal to his own engineers
20:08
and, and we all know, one of the singular most powerful human
20:12
emotions there are to empower juries to deliver justice.
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Is a story of betrayal and when they find out that he's not only
20:21
betraying the public, but he's betraying his own people because
20:25
they themselves know everything he's saying is bullshit and and
20:30
I've I've watched as I've shown some of these guys some of the
20:34
videos and some of the things and it doesn't show up on the
20:37
transcript, but it sure as hell shows up on the video when you
20:41
show it this book of. Disdain.
20:48
This this disappointment, right? It's like, you know, you're not
20:53
mad at your kids, you're disappointed.
20:56
That's kind of the look that they give like.
20:59
Really, really bro. Like we're back here working our
21:04
asses off and and you're out there saying all this stuff that
21:09
it's just not. True, most of the people at
21:12
Tesla who have independent engineering judgement don't
21:16
last. They leave or they get fired
21:20
because they raise their hand right.
21:22
If you don't have independent engineering judgement and you're
21:26
willing to, simply genuflect to the Dear Leader and whatever his
21:31
whim of the day might. Be then you can have a long and
21:34
storied career at Tesla and that's just been a kind of a
21:39
continued theme in in all of these cases.
21:44
You answered my question about how you how you do the showroom
21:47
versus the courtroom for a case like this.
21:49
Were there other moments or pieces that you felt would be
21:57
helpful for? For listeners to understand how
21:59
you were able to to achieve this.
22:02
Well, yeah, we were also very fortunate that we received, I
22:06
guess fortunates may be a strange way to put it, but it it
22:08
is a 96 page Daubert and motion eliminate order before trial.
22:15
That's a comprehensive, robust, I think to say the least, a very
22:21
robust order from the trial court about why she denied their
22:26
summary judgment on punitive damages, why she believed, you
22:29
know, certain, you know, design defect claims could go to the
22:32
jury on what basis? And that really formed our road
22:35
map in terms of the evidence that that we put forward, right,
22:39
which she saw that we could do by way of our papers and then
22:42
proceeded to do live and in color.
22:45
And and so, you know, to that end, one of the things that the
22:50
court latched onto, which so did we, was this thing known as the
22:55
vehicle safety report. And Tesla, like other companies
22:59
have done, touts its, you know, its statistics, but it's the old
23:05
Mark Twain lies, damn lies and statistics.
23:08
And so they have put out this report for years saying that
23:12
Teslas on autopilot are safer than traditional vehicles.
23:17
It's categorically untrue. And I'll spare you and the
23:22
listeners a, a, a, you know, a treatise on why the vehicle
23:27
safety report has no math and no science behind it.
23:31
But we had an epidemiology statistician expert put on the
23:35
stand in 30 minutes because nobody wants to hear from an
23:37
epidemiologist statistician for longer than that as to why there
23:40
was no math and no science behind the vehicle safety
23:42
report. And, and, and what that was
23:45
helpful to was, you know, Tesla continued to say throughout the
23:49
trial from opening through closing and everywhere in
23:52
between. Yeah, all this stuff about Elon,
23:54
all this stuff about these reports that we put out, all
23:57
this information. It doesn't matter.
23:59
It doesn't matter the driver. The driver never saw some tweet
24:05
of Elon Musk. He never reside that he relied
24:08
upon some statement. He never went on the website and
24:11
read the vehicle safety report. This is all a bunch of
24:15
distraction. But they're wrong because the
24:18
jury instructions ask about the expectation of the ordinary
24:23
consumer, right? And that all goes to how they
24:29
plant these seeds in the ether. And eventually, they do get
24:36
stated by Elon, but then they get published in news reports,
24:40
then they get retweeted on, you know, Twitter.
24:44
Then they end up in someone's mouth who passes it along to
24:48
their friend, and then it ends up in someone's ear.
24:52
It's like a virus. Exactly.
24:54
And, and what this gentleman said is while I cannot point you
24:57
to any particular statement or word or phrase or tweet or, or
25:01
report on a website, I can tell you I believed that this system
25:06
was better than a human. I believed that it was
25:09
essentially going to help me and activate.
25:11
I bought the car because I had 110 mile commute from my office
25:15
up in Boca, in my second home in Key Largo, which I went to on
25:18
the weekends and I would have it drive me there and I could take
25:21
calls and do other things. That's what I did, right?
25:24
Where did he get that from? Right.
25:27
And and and one of the things that that opened the the door to
25:30
really frame that at the end. Was, you know, I was able to
25:34
show and I had a slide with what was it?
25:39
It was Chick-fil-A, the, the cows, Limu the Emo and Doug,
25:43
Liberty Mutual insurance and the GEICO gecko.
25:47
And I said, look, folks, you all know that chick-fil-A's got a
25:51
bunch of cows who want you to eat more chicken.
25:54
And if you watch sports on the weekend, Limu the Emo and Doug
25:56
want you to buy Liberty Mutual and that GEICO has a gecko that
25:59
peddles their insurance. Now, you don't know the names of
26:03
the CE OS and I looked them up. I don't remember what they are.
26:05
You know Bob Smith and and Jim Jones and and you know, and and
26:09
and Doug whoever of these companies, but the decisions
26:14
that they make and the words that they use influence and
26:21
impact how the ordinary consumer interacts.
26:25
With and purchases their products.
26:29
Words matter. Elon Musk is no different.
26:34
He's putting this out there to sow all of these seeds in hopes
26:40
that they sprout in the conscience of the ordinary
26:44
consumer. In news flash, it worked.
26:49
It happened, and then they show up at trial.
26:54
And they're like, but you see here in the owner's manual, the
26:56
owner's manual says this is just a a dead adaptive cruise control
27:00
requires constant human supervision, which.
27:03
Again, thank you. Tesla opens the door of the
27:06
argument. You can't shout the claim and
27:10
whisper the disclaimer because that's what they do.
27:13
Yeah, they shout from the hilltops.
27:16
This is the greatest vehicle ever driven, ever driven.
27:19
And then they show up in court and they try to tell you, but
27:22
look. But look what we put on the 87
27:24
page of the owner's manual that no one reads, which, by the way,
27:26
there also is no actual owner's manual in these cars.
27:30
They live inside of the media control unit.
27:32
You have to go through about 12 screens to even find the damn
27:35
thing. Yeah.
27:36
And one thing I didn't get to be able to prove in that case, but
27:39
I'm working up in other cases, they have data as to whether or
27:43
not someone has actually ever clicked through to the owner's
27:45
manual because they track everything.
27:48
They know whether your phone is plugged in and the charger and
27:51
the temperature control in the rear passenger seat, you know,
27:54
at any point in time. And, and so that again, it's
27:59
Tesla in the courtroom and it's Tesla in the showroom, right?
28:03
It's it's words matter. We've covered a lot of the the
28:06
evidence piece experts, can you bring us to closing and the in
28:12
essence, the moment of truth the the the verdict.
28:14
Yeah, so. Similar to being on the clock at
28:21
the beginning, I was on the clock again at the end and after
28:27
a month of evidence, I thought taking a couple of hours to
28:30
unpack it all seemed reasonable. The court didn't.
28:35
I was given an hour and I said OK, seems a bit light but I'll
28:42
I'll deal. And in addition, because I
28:46
reserve rebuttal time that came out of my hour, which I hadn't
28:52
had a lot of judges do that before.
28:54
Normally I'd be given an hour defense, be given an hour, and
28:56
then I get my 15 minutes. I'd say no, no, no.
28:58
That means you got 45 minutes and save your 15 or whatever it
29:02
was. Maybe she gave me an hour and 15
29:04
and I saved that, whatever it was it was about.
29:06
Half of what I thought I needed. I should have asked this
29:08
question before, but I presume federal court.
29:11
It was a chess clock. Did you have 50 hours to try
29:13
your case and that not quite, not quite the chess clock been
29:17
on the chess clock before. This wasn't that, but this was
29:20
this case is done by this day. You're going to be doing, these
29:24
are the hours we're going to be in.
29:26
You're going to get all of this done.
29:27
She wanted the full schedule like a week in advance where it
29:30
was shared with everybody. So none of that like, I'll tell
29:33
you who my witnesses are tomorrow kind of thing.
29:35
She, she ran a tight ship, OK. And you know, it was, it was
29:41
Judge Bloom's world and we were all just living in it.
29:43
And so again, in that vein of, of being afraid that you're
29:49
going to forget something, being afraid that you're not going to
29:51
cover it, you leave good content on the cutting room floor.
29:56
And so I, I really kind of embrace that.
30:01
And, and secondarily and uniquely to Florida
30:05
jurisprudence, I was given a video that was put out by an
30:11
appellate lawyer through one of these trial school groups.
30:17
And it was an hour and a half long video that I needed to
30:19
watch the weekend before closing where she went through all of
30:24
the ways you can commit prejudicial attorney misconduct
30:28
in Florida, which shockingly was about 80% of the things that we
30:33
use as argument in California results in mistrial in Florida.
30:39
Fascinating. If you talk about the value of a
30:42
life and you compare it to a painting, you compare it to the
30:45
stealth bomber, you make reference to how much you know
30:49
Manny Machado gets paid, you Mistry your case.
30:53
Wow, that is prejudicial attorney misconduct in Florida.
30:58
There was a multitude of things that I would routinely have
31:04
argued as and, and, and really in fairness and, and I think one
31:08
of the takeaways from that. Was what I realized is those are
31:12
my crutches. I have certain crutches that I
31:16
rely upon after, you know, trying a couple dozen cases, you
31:20
got stuff that. I mean, it's, it's really it's,
31:23
it's just kind of some of your prepackaged stuff.
31:25
And I had to leave 80% of it at the door.
31:29
And I'll tell you, I mean, you know, it turned out OK, seems
31:35
like. Yeah.
31:36
So, you know, made me realize that maybe.
31:40
That. Admittedly, schlocky,
31:43
prepackaged stuff that it really is, because, I mean, it's just
31:46
the same thing. You just applied it to the new
31:48
case. You know, there's nothing wrong
31:51
with with leaving some of that stuff at the door.
31:54
Right. Maybe you don't actually need
31:56
those crutches. Maybe you don't need to worry
31:59
about introducing and talking about every damn bit of evidence
32:04
that came in as you go through the verdict form and show the
32:06
jury all the ways that it fits into it.
32:08
Right, if, if the case is properly presented, if your
32:12
jury's tracking, you know, you can come out all right on the
32:15
other side. And, and that was, I think a
32:18
couple of the big lessons of, of this close and, and the last one
32:21
where, where I want to give attribution was on arguing
32:24
punitive. And I, I picked up the trial
32:27
guides book on punitive damages and a friend of mine, Shawn
32:32
Simpson and some others collaborated to, to put that
32:35
together. And one of the things that I, I
32:38
took from it that I used in, in the punitive damage argument in
32:43
closing. And this was no bifurcation.
32:46
So it was all, it was all in. So, you know, they made the
32:50
rulings about design defect and damages.
32:52
And then was it malice? Was it, was it reckless?
32:55
And then if so, what are the damages?
32:57
So I got it was an all all-encompassing. 45 minutes for
33:01
all of that. For all of that and so I was
33:03
given A and I end up landing the plane like 3 minutes early.
33:08
I end up having 20 minutes in rebuttal, which I ended up not
33:10
using. I used like 12 of them or
33:13
something I so I ended up actually leaving time on the
33:16
clock, OK, which I would not have expected, but again, trust
33:21
your instincts and, and hopefully trust that the case
33:25
has come in the way you hope it has and, and they'll do the
33:28
right thing with it. And one of the ways I was able
33:31
to reframe punitive, of course, I talked about it with the jury
33:35
instruction that it's to punish, right?
33:38
But but I really talked to the jury more.
33:42
I said, I know that's what the instructions say, but I want you
33:45
to realize that this is actually an opportunity to help Tesla.
33:50
When a company has lost its way, when it has decided to elevate
33:56
profits and greed over life and safety, it is a company that is
34:01
off the rails and it needs to be brought back.
34:05
And through your verdict, through these punitive damages,
34:10
you can tell Tesla to stop doing this, to be a better version of
34:15
itself. Now, the reality is, it is an
34:20
incredibly loathsome company led by an incredibly loathsome human
34:24
being who I don't actually believe learned anything from
34:28
this trial or will learn anything from any amount of
34:31
punitive damages. That said, I still believe that
34:35
the jury could be more essentially empowered to come in
34:40
and award punitives if they knew that there was something that
34:45
was coming out of it more than just smacking their hand.
34:49
That makes a lot of sense. And so, you know, the thing
34:52
about Tesla was they. Had filed their Q10 with the SEC
34:57
the Wednesday before closing, so I was able to use that as as
35:02
evidence of value and they had $77.3 billion cash on hand with
35:08
market capitalization. They're a trillion dollar
35:10
company, but in terms of actual value, taking the market out,
35:13
they had 77.3 billion. And so it opened itself to a
35:17
very simple argument, which again giving attribution goes
35:20
back to the old Brian Panish and and one of those Ford cases that
35:23
he got a giant verdict on. Where I said look.
35:25
Folks, 77.3 billion it's been and I'm making up the number now
35:29
2289 days since this accident and as a result, Tesla has
35:36
acquired $36 million in wealth every single.
35:41
Day since this incident occurred and I would ask that you just
35:47
dock them one week's pay. One week's pay was $230 million.
35:53
I asked for about 104 million on the compensatories for the
35:57
injury and for the death. And in the end they actually
36:01
ended up they gave me 129 million in compensatories.
36:04
They went 25,000,000 over my ask.
36:07
That's never happened before. Yeah, that's something.
36:11
I've had like one time I think a jury gave me more than I asked
36:13
for by an order of a few 100 grand and then they gave me 200
36:17
million in punitive for $329 million result.
36:21
And I mean it. You know, wise man once said
36:24
that the closest thing to you know, free speech in a courtroom
36:26
is a closing argument. I would I would caveat that to
36:29
say the closest thing to free speech in a courtroom is a
36:33
punitive damage closing argument against a giant trillion dollar
36:36
corporation. It was, it was a beautiful thing
36:41
to be able to even be a part of. And and then they got it and the
36:48
jury had the case for five hours.
36:50
And then we received the greatest jury question in the
36:52
history of jury questions. How are the punitive damages
36:55
divided amongst the plaintiffs? And what it showed was the jury
37:01
was thoughtful. They had just gone through the
37:04
verdict form in five hours and they had answered all the
37:06
questions and, and they had given a certain compensatory
37:10
amount for injuries and, and for death.
37:12
And then they had done apportionment between the driver
37:14
and Tesla, which they put a third on Tesla and 2/3 on the
37:18
driver. I said it was a chicken and an
37:20
egg, but it's all about shared responsibility, right?
37:22
That was the, the whole theme. The case was always about shared
37:24
responsibility from the jump all the way to the very end.
37:28
And they got it. But the punitives are awarded
37:29
solely against Tesla. So but then they got to that
37:32
last question and there was only one line.
37:35
And they're like, huh, why is that?
37:37
And so they're being thoughtful. Now I've learned trying enough
37:40
cases to know I don't really read into jury questions.
37:43
I read into that. One.
37:44
Yeah, that one's pretty clear. I.
37:46
Was pretty clear where we were on the verdict form and what was
37:49
about to happen. And to this day, it's never been
37:53
explained to me why someone didn't get Elon Musk on the
37:56
phone and say we need $100 million cashier's check
37:59
delivered to the Miami federal courthouse and we need it here
38:01
in 5 minutes. Yeah, because this thing's about
38:03
to go boom. Yeah.
38:05
And they didn't. And it was the first time as we
38:08
sat out in the alcove outside of the courtroom after that
38:11
question, where I gave myself and my Co counsel the space to
38:17
look at each other and go, it's happening.
38:22
It's really happening. Did the defense team even
38:26
approach you after that? Shockingly, no.
38:29
Wow. And they were all there, General
38:34
counsel, director of risk, they all were sitting there on the
38:40
other side of that alcove. And not a one walked over and we
38:46
just simply huddled and hoped. And 10 minutes later, knock on
38:52
the door, we have a verdict. And like I said, turned out OK.
39:00
So what I understand from you, because I asked during a break,
39:05
is that you are not allowed to speak with jurors in Florida.
39:10
So you you don't have polling data or information about about
39:14
that. No, that's another little note.
39:16
Well, for me, little known console Florida law when I asked
39:20
my local counsel, because I had my team, we, you know, have
39:22
certain processes in place. I have a juror feedback form and
39:26
I had my team prepare it and you know, we're ready to, you know,
39:28
send it out and they're juror feedback.
39:30
They're like that. That's a that's a bar violation.
39:33
It's like, really? I'm not a member of your bar.
39:37
I'm an honorary member, I'm pro hocked, but yeah, so no, no
39:40
juror feedback. And so they they split and
39:45
they're in the wind never to be heard.
39:47
You know from again, if by chance any of them are
39:50
listening, I just. Want to say thank you.
39:52
Thank you for for your service and you know, and and sending
39:57
the message that needed to be sent.
39:58
And then as far as just bring our listeners up to date in
40:02
terms of where things are, sounds like all post trial
40:05
motions are fully briefed. OK, we're fully briefed on post
40:10
trial motions awaiting the hearing if the court's even
40:12
going to issue 1. Nothing in the post trial
40:14
motions were surprising, nothing that they hadn't already raised.
40:18
So unless the court makes an about face on some issues, which
40:21
I think is improbable, but you know, you never know, I think
40:24
we'll be OK there and then up on appeal to the 11th Circuit.
40:28
And the focus of that is all going to be on both entitlement
40:31
to punitive damages. There's a half acid attempt at
40:39
arguing the due process, but it's I say it's half acid
40:43
because I mean, Florida has a limit on punitive damages.
40:46
It can only be 3 times compensatories.
40:49
However, you can't tell the jury that if you tell them that
40:52
that's what the law is, you commit prejudicial attorney
40:54
misconduct resulting in mistrial.
40:56
So you can only tell them don't award more than three times.
40:59
And so I think I don't know whether again, I don't know
41:01
their, their thought process, but they gave me 25,000,000 more
41:04
than I asked for on compensatories, gave me 30
41:06
million less. And again, I mean, you know,
41:09
this was the most reasonable $300 million ask I've ever made
41:12
in my career and ever probably will make in light.
41:15
Of who I was up against, but the ratio is, I mean, it's, it's not
41:19
even 2:00 to 1:00 and you know, we have Supreme Court
41:22
authorities as 9X. And so I, I don't think, I don't
41:25
think the ratio argument, the due process argument goes
41:28
anywhere. I think the, the whole matzo
41:30
ball on appeal is going to be they should have never been
41:32
allowed to talk about punitive damages.
41:34
They should have never allowed to talk about the cover up.
41:37
Of the data and all of that, which again, Tesla opened the
41:40
door to, you know, and so, you know, we'll we'll see if they,
41:45
you know, if they want to go the distance at the 11th Circuit,
41:47
but you know, we're prepared to. Well, as we come into kind of
41:52
the, the, the final portion of of this, one of the things I, I
41:57
always ask at the conclusion is what, whether there's anything
42:01
that that we haven't covered in terms of the organic interview
42:05
process that you think would. Be useful for our listeners to
42:08
know either about this case or about things in general.
42:11
I think the big take homes for me is trust your instincts, you
42:21
know and fight like hell and when given the chance, which
42:28
more cases now and days have the opportunity develop the big lie
42:33
right, Because here's the thing you have to prove the defect.
42:36
You have to prove that there was system failure, but that's only.
42:40
Part of the story. And if your focus is entirely on
42:44
the engineering and the ones and zeros, you are missing a very
42:47
important part of the narrative. And and while Elon Musk is
42:50
unique in that sense of being such a bombastic blowhard, there
42:56
are, especially in the digital world we live in, so many
42:59
companies who overstate so many things about their products and
43:03
services. Don't lose sight of that, right?
43:06
And and then when you get a case and it doesn't matter if it's a
43:09
Tesla case or a trucking case or a slip and fall at the grocery
43:13
store, right? Remember, in the digital world
43:16
that we live in, nothing is ever deleted.
43:21
Nothing, right? When I delete a picture on my
43:24
iPhone, it's not gone. It's just simply marked as free
43:28
space, which means the next time I take a picture, it might
43:31
overwrite it, but it's still there.
43:34
It gets degraded over time, but it's still there.
43:39
And that is transferable across almost all case types.
43:43
It's it's just transferable across human experience at this
43:47
point. It's a blessing and a curse.
43:50
Nothing is ever deleted. And I knew enough to know that.
43:56
And when you get laughed at, when you get patted on the head,
44:00
when when you get told, oh, you, you know, counsel you, you don't
44:03
understand, right? I always say it's like Med male
44:07
defense lawyers, right? They're like Alex Trebek, may he
44:10
rest in peace. You know who knows?
44:12
It's not the War of 1812, it's the French and Indian war.
44:15
Well, screw you, Alex. You're no smarter than me.
44:17
You just got the answer on the cards, right?
44:19
That's these guys, right? That's these Tesla lawyers,
44:22
that's these auto product lawyers.
44:23
That's these Med male defense lawyers.
44:24
They ain't any smarter than us. They just, they have the answer
44:27
on the cards. But you know what?
44:29
Half the time the answer they got on the cards isn't true
44:32
because it's just the same bullshit that they got fed by
44:35
their own client. So trust it.
44:38
If you think there's something, believe in it and then do what
44:43
you got to do. Go above, over, around, through.
44:47
Be willing to go outside the box.
44:49
They are the box. We have to think outside of it.
44:53
There are people out there. You know, I see all these posts
44:57
on listservs. I need an expert for this that
44:59
and the other thing. It might not be a conventional
45:01
expert. You might need to find somebody
45:04
through some other means through Twitter DMS.
45:07
Green the only. You may find somebody.
45:10
I mean, listen, not all heroes wear capes and and that guy is a
45:15
perfect example of that, you know, and, and he wasn't out
45:18
there. You weren't going to find his
45:19
name on a listserv. You weren't going to get him
45:21
through some. Expert searching service.
45:24
You got to just, you know, get out from behind your desk, man.
45:28
You got to get scrappy sometimes.
45:30
Don't be an indoor cat. Sometimes you got to be an
45:33
outdoor cat. Very true, very true.
45:37
Well, Brett, I really appreciate you taking the time to sit down
45:41
and and unpack this for all of us.
45:44
And I'll give it an additional thank you because I know how
45:46
busy you are both with your practice and also with your
45:50
service for CAOC and and for the coming battles over the next
45:56
year. And so when you devote this much
45:58
time to to sit down, it's really appreciate.
46:01
It. Oh well.
46:02
Thank you for that and I appreciate, appreciate you
46:06
giving me this platform and, and, and taking the time out of
46:10
your busy day as well. No, I've got, I've got a lot of
46:13
gratitude for, you know, a lot of people in this world and, and
46:18
both with respect on the, you know, the micro level of, of
46:20
this case and those clients of the people I'm, you know, proud
46:24
to serve beside as we take some of these larger fights, you
46:27
know, and, and obviously, you know, to my family and my wife
46:31
and my kids who, you know, allow me to do what I do because at
46:35
the end of the day, the verdicts are great.
46:37
The the political battles are important, but you know, those
46:40
are our monuments in this world. So.
46:42
Very true, very true, and thank you for listening today.
46:46
Please e-mail us at podcast at Coopers dot law with questions,
46:49
comments, feedback and suggestions for who we should
46:52
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46:54
Show us with a colleague and leave us a five star review on
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there, happy hunting.