What Has Happened Since the Harley Davidson Verdict?
Well, actually, not a lot. A lot has changed since the Harley verdict. At least from a litigator’s perspective, Harley-Davidson has just continued to trudge along, like corporate litigators throwing more money, more paper, and more arguments at the case, much the same. So, essentially, they’ve asked the judge to throw out the verdict. They’ve asked the trial judge to throw out the verdict, and a briefing schedule has been set. And even that schedule is in negotiation. So, it’s basically litigation ABCs. You just keep on the scene course. And right now, that course is set, at least Harley-Davidson, for an attempt to have the trial judge himself set the verdict aside, throw it out or change it, reduce it in some way. That is scheduled to happen in late November, at least the argument on that. And in the meantime, they went out and hired new lawyers, so a bigger firm.
So, they went from big firm to bigger firm, to the biggest firm. And now we have a giant corporate firm. They’re a multi-state firm with a litigator who used to clerk for United States Supreme Court Justice. So, this is what you do. I guess the intent is to continue to grind down a plaintiff, a law firm like myself, or intimidate us, continue to frustrate, delay Mr. Morris, the clients. That’s what you do. After a verdict, most people say, “Well, there’s a verdict, so didn’t we win?” And the answer is no. It’s really the beginning of another chapter in the case. And so, it’s almost like we’ve started all over again, albeit now from a different starting point. That starting point being with a verdict in place. So, that’s where we are at the current moment.
What is the Process of the Harley Davidson Verdict?
All legal cases really have two components, or I like to talk to people about things that are substantive and things that are procedural. So, substantive are like, well, what’s the case about? This case was a product liability case, involving unfortunately a death, really bad injuries, and why this product failed and all the facts that go into that. And that should really be where the focus is. But unfortunately, the procedure is a big part of how cases progress. And so, procedurally, we’re now at a point where we have a verdict and a judgment has been entered on that verdict. Harley-Davidson has appealed that judgment, so they filed a notice of appeal. By filing a notice of appeal, you stop enforcement of the judgment. So, when you file a notice of appeal, I have a judgment now, we have a judgment now for 287 million against Harley-Davidson.
So, what procedurally can happen is you can go to a bank and say, “Hey, look, I got a piece of paper. I’ll have a judgment. Give me the money.” And Harley-Davidson has a lot of money in the bank and you can do that and collect it. So, that would be the end of the case. “Thank you for my 287 million and we’re done doing business with you.” You’ve satisfied the judgment. But of course, Harley-Davidson is not going to allow that to happen, or any defendant really wouldn’t want that to happen after a verdict. So, what you do is you file a notice of appeal. When you file that appeal, it’s a piece of paper, not hard to really do. And there’s a filing fee. It’s $65. Then you get to appeal your case, but when there’s a judgment against you, you can’t just appeal for nothing.
You have to file a bond. So, people hear about that in the context of criminal cases. So, when you get arrested and you don’t want to sit in jail, while you’re waiting for your case, the judge could post bail and then say, “All right, bail is a million dollars. Come up with a million dollars and you won’t have to sit in jail while you’re waiting for your trial. And if you can’t come up with the million dollars, you sit in jail.” So, what do you do? You go to a bondsman. And bondsmen are guys, let’s call them the hedge fund investors, the Wall Street investors in the litigation world, they’re speculators. So, they’ll look at a bail, let’s say at a criminal case or a bond, a civil bond in a case like ours, and they’ll decide, “Hey, we’ll put up the money for you.” And they typically will make the litigant the defendant, or if it’s a criminal case, that the criminal defendant pay them 10% of the money. So, they got to have some skin in the game.
And then the bondsman will put up the other 90% to the court and then your bond is set. So, the appellate court will give a defendant the benefit of saying, “All right, listen, we’ll stop this plaintiff from running to your bank account and taking the money out while you do your appeal. But we want some security for that so that you’re not just fooling around and doing the appeal. And if you lose the appeal, you’ve delayed, and you spend all your money or you run to The Bahamas, or close your corporation or whatever you may do.” The corollary in a criminal case would be, “Hey, we’re not going to let you just stay out of jail on bail while you’re waiting for your case to come up. We want some assurances that you’re going to show up on your criminal case.”
And so, you post bail and when you show up, you get your money back. Same kind of process in civil cases. You post the bond, you put up the money. That ensures that you’ll show up for appeal and do the appeal, that the money’s there in some form. You’re not bankrupt. You didn’t spend it all. You didn’t go, you didn’t run away, these kind of things. So, Harley-Davidson, when they file their appeal, also has to put up a bond with the appellate court. And then you get a certain amount of time to what’s called perfect your appeal. I don’t know where that word comes from. It’s very interesting for us. Has the appeal been perfected? Lawyers talk all the time about that. And really, it doesn’t mean it’s perfect, because nothing’s perfect in our world. But what it means is that you filed your brief. You filed everything that you intend for the appellate court to have.
So, Harley-Davidson gets six months from the date they filed their notice of appeal, which actually just happened. It took really almost two months even to file the notice of appeal, because of all the legal maneuvering going on since the verdict to get a judgment entered. But there’s a whole fight about entering the judgment just to get a piece of paper that they’re forced to file an appeal from. That just happened. So, now a time clock starts running on them of six months to “perfect” their appeal, meaning file everything they need to file. So, that clock’s running. They can ask for more time. And typically, appellate courts are pretty lenient on giving you a little bit more time, but they don’t give you forever.
But let’s assume that they don’t want more time. That’s probably not a good assumption because that’s all Harley-Davidson does, is extend things, or any defendant does by the way, is time, time, time. It’s wielded like a weapon in litigation. And that weapon normally is a defense weapon or rarely is a plaintiff wielding time as a sword or a weapon. So, they’ll probably ask for more time. But if they don’t and they file their brief, and perfect their appeal within six months, then once we get their papers, we have 45 days to respond to their papers. Of course, we could ask for a little more time if we need it.
And then after we file our opposition briefs to their appeal, they get a reply, they get the last word. When you’re the loser, which they are, you get the chance to file a brief and file a reply to the opposition. Once that’s done, but all three sets of papers are in their brief, trying to overturn the verdict, our opposition to that and their reply to us once all three sets of papers are in, then the appeal is truly considered perfected completely, meaning everything is done. The appellate court has everything they need. Then you sit and wait. And the appellate courts have really no exact time limit in order for them to read everything that has been presented to them. And then they’ll set an oral argument date.
And then at that oral argument, we’ll get a chance to… just much like people see, particularly these days with the United States Supreme Court, you get to go in front of four appellate division judges who will ask you questions that they may have after they’ve read the papers. Typically, in my experience, and most lawyers’ experiences, the decision on the appeal has already been reached prior to oral argument. And the oral argument sort of gives you a clue what they’re thinking. Maybe one out of 100 cases, you go to an oral argument and somebody’s mind, meaning an appellate division court’s mind is changed, that’s pretty rare, but it could happen.
So, that oral argument date is, while real challenging for a lawyer and really one of the great things you get to do as a lawyer, I’ve done it many times, other lawyers never do it. But for the most part, that day while challenging and interesting to watch and participate in, and requires an incredible amount of preparation, really the reality of it is you’re getting more of an insight into what they’re thinking than you’re really arguing, and advocating and changing someone’s mind. So, that’ll be a big day to get insight into what people are thinking. And then after the oral argument’s completed, typically anywhere between two and six weeks, depending on the complexity of a case, you get a decision. So, that is the procedural time clock that’s on this case right now with Harley-Davidson, and I expect they’re going to eat up as much of this clock and extend as much of this clock as they possibly can, because that’s what you do when you’re the loser.
Has the Harley Davidson Verdict Had Any Impact on the Company’s Behavior?
Now, that’s a great question in this case. Because interestingly enough, in this case, the only case I’ve ever seen in my 30 years or ever heard about, before the jury rendered their punitive damages award, which is really the most significant thing in this case, the punishment aspect to this. It was $240 million worth of punishment. Before that verdict was rendered, Harley-Davidson in open court asked the judge for permission to put on a witness to essentially apologize. I mean, let’s call it like that. That’s what I would say. In other words, they wanted to put somebody on there to say, “Hey, we recognize that this jury has awarded punitive damages.” Because at this point, the jury’s had already said, “We think punitive damages is appropriate,” they just hadn’t weighed in on what the punishment was.
So, this is very much like, let’s say your parents, saying, “Okay, that’s it. You’re going to be punished for what you did,” but they haven’t told you what the punishment is. So, during that time period between those two points, Harley-Davidson asked permission to bring in a witness to say, “Well, since you, the jury have already told us we’re going to be punished, we want to tell you what we’ve done between that time period and you now administering punishment, to show you that the punishment should be less.” So, basically, you say, “I’m never going to do it again, mom and dad. I’ve changed. I’m cleaning my room. I’m doing my homework,” whatever. Now, that was an astonishing thing for us as lawyers, because essentially Harley-Davidson was saying, “We want to admit something we’ve been denying all along, that being that we did wrong,” because they had been saying in the litigation forever, they didn’t do anything wrong.
And now after a jury has said, much like a parent, “No, you actually have done something wrong,” they now wanted to bring in the witness to say, “Well, we know we did wrong, but here’s what we’re doing to not do that again.” That’s incredible. So, we say, “Wow, that’s a pretty interesting thing.” But the judge didn’t allow it because it’s ridiculous in the course of a case to say, “Well, here’s what we’ve done to change our behavior in an entire week, in one week’s time.” But now the question is, well, what have they done even since this verdict until now, we’re still only a couple of months, but to give me as a lawyer an indication or anyone that’s watching them, that they have in fact altered their behavior. And the answer to that is exactly nothing. Absolutely zero.
They have continued along in the same course, as far as we could tell, both in their production capabilities and the things they’re doing internally to make sure these products are safe. But also more particularly in how they litigate cases and how they deal with their customers, their client base, who were making claims that something went wrong with one of their products. And in particular, this trike that we’ve been talking about. So, all the rest of the litigations in the country that we follow very closely, any other claim that we follow very closely, and even our claim in and of itself, are being treated much in the same way that they were before this litigation. Which is, “We are so big, we are so powerful, we are so deep pocketed that we will just continue to litigate and crush you to death with money, with lawyers, with paper, with time, rather than actually step up to the plate and take responsibility for our actions.”
So, here you have a verdict in place, a jury verdict in place where a jury has spoken and spoken very, very loudly to say, “This is what we think you did.” Let’s use the parent analogy again here. And the parent has said, “And here’s your punishment.” And it’s the most extreme punishment that child could ever have even imagined in their wildest dreams, be it given. And nevertheless, that kid is still going out, and smoking, and drinking, and staying out late, and not paying attention. So, this particular child apparently is just completely thumbing their nose at the authorities here and hasn’t changed one thing, as far as we’re concerned. And that’s too bad.
And I only hope that the judges that will ultimately weigh in on this jury’s verdict will actually take consideration of the fact that their conduct hasn’t changed at all when they decide what to do with this verdict. And the reason I say that is because punitive damages, the essence of punitive damages, the entire reason for punitive damages existing as a concept is to in fact change behavior. So, I guess if we want to stay on this parent analogy, which I think is a good one, the fact that parents are able to administer punishment to their kids of some form and say, “Hey, you’re grounded,” or whatever it is, if you then later on took that power away and some appellate court, some parent above the parent were to say, “Well, you know what? I think that punishment was too much and we’re going to cut that punishment down. You’re no longer grounded.”
Well, what would be the effect on that child? And the kid would say, “Wow, why would I ever listen to my parents again when I know there are grandparents above them, let’s say, that are going to undermine the punishment?” And that’s where we are really in the case. And that is seeing what an appellate court, and first this trial judge who was amazing in his analogies and his analysis, rather of the case, we have to wait to see what they’re going to do and what Harley-Davidson is doing, is hoping that one of them will undermine the punishment administered by this jury.
And why is that problematic? And the reason is just because exactly how I just explained, because you basically eviscerate the whole spirit of the law of punitive damages, which is specifically designed to deter behavior, to change behavior. That’s the whole idea. So, if you take away the punishment that’s been administered and say, “Well, you know what, we’re not going to do that,” then you’ve undermined the whole idea behind the law and the whole reason it exists. That’s really where we are. So, I think it’s very, very interesting to watch how this plays out with these judges, is to see if they understand exactly what Harley’s doing at this point in the case post-verdict, and the significance of altering the punitive damages award, the punishment. Because you’re basically just going to undermine the whole idea behind the law and encourage this very same behavior that was brought before this jury and intended to be changed.
Is there any interest on the Harley Davidson verdict from the media or corporate standpoint?
The answer is yes, there is. There’s a lot of eyes on this case and there should be, because a $287 million verdict is extremely rare. And in fact, in product liability cases involving vehicles, it’s probably one of the five largest dollar awards that has ever been administered against a manufacturer of a vehicle. So, all auto manufacturers and motorcycle manufacturers clearly are taking note of this. And any large corporation that is the subject of a punitive damages claim is taking note. And that’s why the media is watching this, because the size of the award and the circumstances of how it was achieved, in other words, in a tragic vehicle accident. Because these vehicles are just out there, so it can happen to other people, how these things are being manufactured.
Now, when you take this case, and this verdict, and you juxtapose it against this other big news case involving vehicles, in this case, airplanes and all of the Boeing information out there, and how they’re taking shortcuts and things like that, and all these whistleblowers out there, you see that this is not limited to just one company. That this is potentially further reached in manufacturers. Well, how do you get that to stop? Well, the only way is by putting a spotlight on it. So, the media is incredibly important to spotlight anything. And obviously, they’re spotlighting this case to some degree. And we wish there was more media attention on that, because the size of the verdict is one thing. A defendant having to pay it is certainly significant.
But even for Harley-Davidson, $287 million, that represents literally one to 2% of the company’s overall net worth. Literally, they grossed $25 million in one week. So, they could write a check for this tomorrow if they want, and not alter their behavior. So, you really want the media attention on this to put a spotlight on it, and court’s attention, and other lawyers’ attention on it because it will go a long way towards altering their conduct, getting them to evaluate what they’re doing internally, evaluate what they’re doing in terms of how they handle these cases and their claimants, their clients and change things. And so, that’s really why the media, why other corporations, why other lawyers are paying attention to this case, and watching it closely as it goes to the appellate process and why they should.
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