What a Lawyer Must Prove to Win a Product Liability Case

Thousands of injuries occur each year in the United States from defective or dangerous products. Victims of dangerous defective products have legal protection under product liability laws throughout the country. These laws govern the legal rules that determine who can be held liable for the defect or danger to consumers.

In general, products sold to the public are required to meet common expectations of consumers. When those products have an unexpected defect, common expectations of consumers are not met.

More than one party could be held liable for injuries that occur from consumer use of a defective product. This includes all sellers that are part of the distribution chain for making the product. Parties that are potentially liable for a defective product include the manufacturer, parts supplier, wholesaler and the retail store from which the product was purchased by the consumer.

The type of defect will determine who is responsible for a liability claim. All of the specifics related to a product liability case may differ among states. However, there are certain elements that a lawyer must prove to win a product liability case for his or her client. These elements include:

  • Injury and/or loss was caused by the product
  • Product was defective
  • Manufacturer’s error led to flaw in product
  • Manufacturer failed to warn consumers about potential dangers
  • Product was used correctly

Product Caused Injury and/or Loss

An actual injury or loss is a crucial element for a lawyer in proving a product liability claim. Specifically, the injury or loss must be a direct result of the product’s defect. In some cases, demonstrating the link between an injury and product defect is straightforward. In other cases, proving that the defect caused the injury or loss is not so easy.

For instance, a client was injured in a car accident while driving a vehicle prone to flipping over. If there is evidence that the client was speeding when the accident occurred, the manufacturer could argue that reckless driving – not the design of the vehicle – caused the accident.

However, a client could suffer third-degree burns when a brand new electric tea kettle explodes because of a hairline crack. The client did nothing out of the ordinary while using the tea kettle and could have a strong injury claim.

Product is Flawed Due to Manufacturer’s Error

In addition to proving that the product caused an injury or loss, the lawyer must also prove that the same product is defective. For some cases, the defect could be the result of a problem at the manufacturing plant. For others, the defect is within the product design, which means that the entire product line is dangerous for consumer use.

A lawyer might have a harder time proving that there was a flaw in the product design. The most likely scenario is demonstrating that an unreasonable design created the danger. However, a product that has potential danger is not automatically a judgment against the manufacturer or supplier when an injury occurs.

There are times when designing a product in a cost-effective or reasonable way is not feasible. Consider the potential dangers of vehicle air bags. While they can cause serious injury to a driver or passenger, they can also save lives in certain collisions. Car manufacturers would argue that when alternative outcomes are considered, air bags are not unreasonably dangerous.

Manufacturer Failed to Warn Consumers of Potential Dangers

Typically, a lawyer might have a better chance at proving an injury or loss occurred from a defective design when the average consumer is not aware of the dangerous quality. A ruling in such cases may depend on whether the manufacturer failed to warn consumers of the potential dangers. The manufacturer or supplier must show that instructions and warnings were reasonably sufficient.

In this case, a client might suffer third-degree burns from an electric tea kettle because the steam valve is concealed by some part of the product design. An average consumer would expect to find a visible spout from where steam is released. Instead, the steam valve is placed in an inconspicuous area, which strengthens a defective design claim.

Proving defective design is problematic if the tea kettle included bright red stickers printed with the word “caution” and the user manual included warnings about the steam valve position. The legal question now becomes whether the warnings were adequate.

Injured Client Used Product Correctly

Generally, the lawyer’s client must use the product correctly; that is, the way the manufacturer intended the product to be used. Continuing with the tea kettle example, an example would be if the explosion occurs when used to heat water for an outdoor kinds’ pool is not the intended use.

If the kettle explodes and causes burns, the lawyer may not be able to prove manufacturer liability. The manufacturer is not required to make the tea kettle safe for use with an outdoor pool.

However, this does not mean that use of every product must conform to the manufacturer’s specifications. The key is proving whether the average consumer would or would not use the product in the same manner as the client. If so, the lawyer has met the reasonable expectation of use requirement.

Winning a product liability case involves deciphering often complex circumstances and establishing a good legal theory. A lawyer who is knowledgeable of product liability law and the litigation process will craft a strategy to prove the case. An immediate investigation into the facts surrounding the case could expose obvious defective issues. Further, expert testimony is often essential in proving that a defective design caused an injury and/or loss.

How To Stand Out In The Merchant Card Services Industry

Most commercials bore me, but recently I saw one that caught my interest.

The spokesman gave the usual spiel, selling his brand and talking about how things are run today, but then he finished with something different. He said, “Why do we continue to do things the same way and never try anything different?”

Why did this statement stick with me? It’s simple. For a long time, his statement has been my business philosophy. I believe if your competition is doing something, you need to do something different.

A Copycat Industry
Merchant credit card processing is a business of copycats. There isn’t much to differentiate the various players. And there’s an entire group of players selling merchant card services that have been dubbed “me too” companies because they offer the exact same services. Often, the only thing that they differ on is cost.

Start With The Sales Call
Don’t be a “me too” company. Differentiate yourself from the copycats, starting with your sales calls. When you introduce yourself to potential clients, don’t lead with the standard line, “Show me your statement, and I’ll show you how much money I can save you.”

Instead, take a softer approach. Say something like, “I heard about your business, and I just thought I’d stop by and see if we’re a good fit for each other. Maybe we could be partners.”

If the merchant hands you his statement automatically out of habit, fend it off and take control of the situation.

Say something like: “Don’t show me that just yet. We don’t really know each other, and I’m not sure we should even do business together yet.”

Do you see how that approach is different? You’re doing something unexpected, and this puts you in complete control of the sales call. And because you’re doing something that your competition doesn’t do, you’ll be memorable, too.

Few sales managers teach this approach, mostly because we’re creatures of habit. We do things the same way over and over, and eventually we forget that another way even exists.

Because you’ve been approaching sales calls the same way for a long time, it may be hard to adopt this new approach. The easiest way is to keep in mind that no matter how hard you try, you won’t be able to sign every merchant. You can only explain your services and take them through the sales process step by step.

If you can do that, you’ll see that it stops many merchants short–but not in a bad way. They’ll see that you’re not the same old merchant card services salesperson that they always deal with, so they’ll open up to you. This will make everything easier.

Do you have other ways of separating yourself from the pack in the merchant credit card processing business?

Video Production Business Tips – Surviving Economic Downturns and Thriving in the Upswings

When business is slow, people often blame it on “the economy.” When I was younger, I used to think this was a load of crap. How can “the economy” be directly responsible for why my clients aren’t hiring us for more video projects?

How can “the economy” be responsible for ME losing contract opportunities? Well, after years of fighting tooth and nail to have a successful video production business, I can tell you that even though I still don’t understand exactly how it works, the state of “the economy” definitely impacts my business.

In this article, I’ll attempt to give you a quick lesson on how, why, and what you can do to weather the storms.

I had an interesting conversation with a client about how the high price of oil impacts his business. He owns a multi-million dollar plastics manufacturing company (I mean MULTI-MILLION dollar business!)

This guy is big time and I’m doing everything I can to quickly learn how to replicate his success. The odds are good that I won’t reach that level with my video production business, but perhaps the collective efforts of all my business endeavors will resemble an inkling of what he has accomplished some day.

In a moment of ignorance, I asked him why the price of oil was making such a difference to his profit margins and he proceeded to instruct me in Business Economics 101. He mass produces products like medical waste trash bags, bags designed to keep frozen foods fresh for so many weeks/months, the liners of helium balloons, etc. which are made from plastic raw materials. These plastic raw materials are derived from oil.

Since oil is a lot more expensive these days, his raw materials cost a lot more which means that in order to maintain profit margins, he has to raise prices. Well, this isn’t fairing well because he has been successful due to his reputation of being the best quality at the lowest price.

Now that he is having to raise his prices, he is merely the best quality at an average price. Part of his frustration is that his competitors aren’t raising their prices to protect their margins. Instead, they are consciously losing money by keeping their prices the same.

So, as of right now, he can either join his competitors by not raising his prices and lose money or he can raise his prices to protect his profit margins but get less volume.

At this point in the conversation, I realized that I was running late for another meeting so we broke it off and I hauled tail out of there. Regardless of what he decides, I’m sure it will be a decision that continues to make him wealthier down the road. He didn’t get where he is by not understanding how to maneuver through good and bad economies.

So, how does the example I gave above regarding economic downturn impact us as videographers?

It’s pretty simple. Let’s say that this plastics manufacturer was a client of yours. If the high price of oil is leading him to raise prices which results in less sales volume, then it’s safe to assume that he will tighten up the purse strings when it comes to the “nice to have” services (videos, websites, breakfast in the middle of the Serengeti with 50 armed guards to keep the animals away… true story) and will only spend money on the “must have” services (raw materials, paper, pens, maintenance on his machines, etc.)

If he is a customer that does repeat business with you but hasn’t called in a while, this is most likely the reason. Or, if you submitted a proposal a few weeks/months ago and he hasn’t responded, this again could be the problem.

You have to keep in mind that when a business owner (or decision maker) is in survival mode, they aren’t thinking about anything else but how to get through this economic downturn. They know that if they can just get through the storm, great things will be on the other side when the economy bounces back.

As a service provider, YOU MUST RESPECT THIS! To not will result in extreme frustration for both you and the client/prospect. Plus, your client/prospect is giving you signs that the economic downturn is coming your way as well. If high oil prices impacts your clients’ profit, they won’t have extra money to spend on your services, which, you guessed it, means that you too will soon face a crisis.

So now that you’ve “seen on the news that the hurricane is coming,” what do you do?

You start boarding up your house and potentially think about leaving town.

I’m not suggesting you leave town but you should definitely start thinking about how you will weather the economic storm that will soon hit you like a ton of bricks.

What are your options?

My experience has been that when a client/prospect is facing a cash shortage due to an economic downturn, there isn’t any type of incentive that will result in them signing a video production contract.

They “freeze” their spending on anything that isn’t directly related to the operations of their business. So, you will feel like a hamster spinning the wheel without getting anywhere if you attempt to find a way to get your client/prospect to move forward with a project during this time. Embrace this fact and start collecting nuts… it’s going to be a long winter!

When your clients/prospects stop purchasing the “nice to haves” and only focus on the “must haves,” YOU MUST FOLLOW SUIT IMMEDIATELY! Put off the software upgrade or the expensive trip to the big industry conference you love to attend each year.

This is also the time to put off personal vacations and the kitchen renovation. If you don’t preserve your cash, you will be caught in the worst part of the storm without a lot of options for survival.

When the economy is bad, banks don’t like to lend money to people who actually need it and since you will be going to them because you are out of cash, they won’t consider you a good risk. It’s a messed up system but learning to embrace it will result in a healthier life and a more successful video production business.

It will be difficult to do this in the middle of a bad economy but a few ways you can help to off-set some of the impact include:

1. Focus your marketing efforts on industries that aren’t impacted as heavily when the economy is experiencing a downturn.

Some of these industries include health care (people are going to be sick no matter what the economy is doing), higher education (people go to college no matter what the economy is doing), local/state/federal government (the only entities that seem to not be impacted at all by the economy), and church ministries (the larger churches I work with seem to always have cash tucked away no matter what’s going on the business world).

These industries won’t necessarily thrive in a bad economy but they fare better than most which means you won’t be bone dry when the usual corporate clients close their checkbooks.

2. Find ways to improve your cash flow when the economy is good.

This is when banks will loan money or refinance loans for ANYONE! Use this to your advantage to reduce your monthly payments on equipment, vehicles, etc. And remember not to take on any unnecessary expenses that will either eat a large portion of your cash or will tie you in to monthly payments. You’ll need the cash when the economy gets bad and you won’t want extra monthly payments when your revenue drops.

3. Make hay while the sun is shining!

I know this is a cliche and one I’ve used in other articles, but, it’s true in this case as well. When the economy is great and people are buying things left and right, you MUST SELL LIKE THERE IS NO TOMORROW!

I’m serious. Spend all day marketing/selling and produce the videos at night or on weekends. Or, relax your client’s delivery expectations when possible so you can spend more time selling when everyone is buying.

4. Then, when you have a stack of cash and are trying to figure out how you want to spend it… REMEMBER… another storm will be coming soon!

Always has and always will. You can’t deny it. To do so will spell disaster for your video production business.

In conclusion, the economy is a force that is much stronger than you, me and even the largest businesses in the world. In order to make it through the downturns, you must do everything you can to prepare for them when the economy is strong.

Sell more, spend less and make smart financial decisions when it comes to refinancing your long-term and short-term loans. Eventually, the positive things you do in great economies will outrun the worst that bad economies can dish out. This is when your video production business gets stronger and you start to experience true wealth.

As for my client, his personal wealth is already far greater than the value of his multi-million dollar business. So, in reality, it doesn’t matter what happens during this particular economic downturn.

In the worst possible case, his business shuts down for a few months (with all employees continuing to receive paychecks) while he goes on a few lavish vacations. Then, when the economy bounces back, he turns the lights back on and they go back to being the best-quality/lowest price provider of plastics products that will continue to make him millions of dollars each year.

Wouldn’t we all like a piece of that action?

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