Apple, Expectations and Trial Strategy

Apple 5sA week ago Apple unveiled its new iPhone 5s and some Apple-bashers had a field day criticizing it for only being incrementally better than the one released a year earlier, the iPhone 5.

And this morning Apple released blockbuster sales of over 9 million iPhones sold since the actual release three days ago.

Why the sharp difference between initial reviews and blockbuster sales. And why is this important to jury trials?

Because those that were bashing were comparing it to the model released just one year ago. But most folks buy two-year contracts when they get an iPhone. Thus, the target audience for the phones was those that bought phones two years or more ago, not the few who want to upgrade every year.

And since there is a huge difference between the one two years ago and the just released, it has tapped a substantial market.

This is all about figuring out where to set the comparison bar when deciding if something is good or bad.

If at trial you want to compare an injury to normal, you have to first figure out what that normal is and set that bar firmly in place.

Last week at trial, a defense expert decided to move the “normal” bar on the range of motion, so that when he showed plaintiff’s injuries to the jury, they didn’t look as bad as they actually were. (I hope to blog on that testimony in the future.)

Firmly forcing a witness to declare what normal is, and locking the person in who is going to give that opinion, is a critical and often overlooked piece of the puzzle that constitutes evidence. It is all about expectation and doing a proper comparison.

My two rupees on your trial tip for the day.

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2 Responses Leave a comment

  • Ralph 2013.9.23 at 12:08 | Quote

    I was thinking about this concept just the other day re a PI case for an 84 year old guy hit on his bike. He used to bike 10-20 miles every day and now never will again. For evaluation purposes, is he a guy with a huge physical loss, or just a dude who now has aches and pains like other old guys?

  • Eric Turkewitz 2013.9.23 at 12:18 | Quote

    No question that, for him, normal is a guy biking 10-20 miles a day. And the collision effectively turned him into an “old man.”

    There are plenty of 84 yo men who don’t do anything due to nature taking its course, but that wasn’t your guy’s normal.

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