It was the first case tried to verdict under a Pennsylvania anti-hazing statute that allows civil remedies against Greek life organizations. The team that tried it – Helen Lawless and Mark Fuchs – visit host Brendan Lupetin to explain how they won $7.8 million. It wasn’t easy: They had to show how the college freshman ended at the bottom of a cliff with a BAC of over 0.2. And they had to deflect defense arguments that the student bore personal responsibility. For any plaintiff’s lawyer working on an anti-hazing case, this episode is a must-hear.

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1. In King vs. AST Sorority et. al, Helen Lawless and Mark Fuchs represented the family of Justin King, an 18-year-old freshman at Bloomsburg University who died just two weeks into his college career after attending an alcohol-fueled party co-hosted by a fraternity and a sorority.
2. This was the first case tried to verdict in Pennsylvania under the state's anti-hazing statute, a law born by the parents of a Penn State hazing victim that allows civil remedies against individuals, organizations, and educational institutions.
3. A key challenge was establishing causation without a witness to the fatal fall. The team used a digital forensics expert to track Justin's cell phone movements and a forensic pathologist to establish time of death, creating an unbroken chain of causation.
4. Helen and Mark argued that the sorority’s anti-hazing policies were "paper policies" that were never enforced: The only time national representatives visited the local sorority chapter was after Justin's death, and they arrived with a lawyer.
5. The defense's strategy of building up a high school friend as a star witness backfired when he testified he wasn't even in Bloomsburg the night Justin died.
6. The $7.8 million verdict was apportioned 35% to the sorority, 35% to the fraternity, and 24% to Justin, with the largest damages going to lost earnings and Carol King's companionship damages.
7. The defining moment at trial came when the sorority CEO sat in silence for nearly a minute after being asked whether handing policies to college students was enough to deter hazing—and answered "No."

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You're going to have to confront the fact that people will assume that the hazee did this voluntarily, potentially. They consented. How are you going to deal with that?

We thought that they had a duty. They had a duty to enforce the policies at their local chapter. They're a business after all. Greek life is not a charity. It's a business. It's big business.

Welcome to Just Verdicts with your host, Brendan Lupetin, a podcast dedicated to the pursuit of just verdicts for just cases. Join us for in- depth interviews and discussions of cutting-edge trial strategies that will give you the keys to conquering the courtroom. Produced and powered by LawPods.

All right. Welcome back to another episode of the Just Verdicts Podcast. And today I have a return guest and a new guest, both from Kline Specter. We've got Helen Lawless and Mark Fuchs. So thanks for both of you for being here today. Thanks for having us.

Thank you for that.

Nice To be back.

The reason you're here is because you were kind enough to respond to my invitation to talk about this recent verdict that I read about. And I was telling you, as a dad of three boys, really resonated with me because it involves the unfortunate death in a sort of a sorority fraternity setting of a young guy who seemed like he had a lot going for himself. And it's the matter of King versus AST sorority et al. So Helen or Mark, well, before we get into that, I'm getting ahead of myself just because I was moved by this story. But I think maybe Helen, I talked to you a little bit about this, but Kline & Specter, big dog, trial law firm, all sorts of superstar trial lawyers there and have come out of there and people have been on this podcast before. Helen, I know we kind of talked about your really unique way of you finding yourself to Philadelphia and working at Kline Specter.

Mark, from your perspective, how did you get there? And then how did the two of you come together to be part of this trial team on this case?

Sure. So I started my legal career at Quinn Emanuel in New York City. And I'm sure you're familiar, Brendan, but big law firm, they do litigation only. And I was doing a lot of sort of financial litigation at the time. I have a background in finance. I did investment banking for a couple years. So I was at Quinn for about two and a half years. And I would say for about two and a half of those years, I was thinking about moving to the plaintiff's side and just constantly was getting opportunities there that I didn't want to give up and wanted to see some time at Quinn Emanuel before I finally decided to make that jump. And then finally after those two and a half years, I decided it was the right time. Started interviewing at some firms and from Erie, Pennsylvania. Originally, my dad worked at Erie Insurance, so I kind of grew up hearing about Kline Specter and some of these big plaintiff firms in Pennsylvania.

So Kline & Specter was one of the first places I looked. I really enjoyed talking to the people there, went through the process, seemed like it'd be a good fit, and then joined the team back in July.

Okay, gotcha. And why did plaintiff's law reach out to you? I mean, your dad working at Erie Insurance, you are a investment banker until you probably saw the light of what your life was going to look like for the next foreseeable future. And Quinn Emanuel probably doing just great financially there. What was calling to you from the plaintiff's side?

There was mainly two things, one of which is directly relevant to the question you just asked. I wanted to get in the courtroom. I wanted to be in trials and the only way I could get in trial at Quinn Emanuel was to do pro bono cases. And if I did pro bono cases, that meant I couldn't bill, and then that meant I couldn't be eligible for a bonus if I did pro bono cases. So I did take on one pro bono case while I was at Quinn. It was an employment discrimination case, represented the plaintiff, and was able to see that through the trial and just absolutely loved the experience, fell in love with it, and realized I didn't want to go back to bill by the hour doing document review and discovery constantly in big law and never see a courtroom again until I picked up my next pro bono case.

I wanted to get in the courtroom. And after talking with some of the plaintiff's firms, not only in Philly, but around the country, I realized that Kline Specter was a unique place where associates could get that sort of first chair, second chair trial experience. And so plaintiff's law was something that attracted me in that sense. And then on the other side, I have no problem with people representing corporations or defendants. I think everybody's entitled to their representation, but I was doing a lot of work for Tesla. I was doing a lot of work for tech founders who were billionaires. And it was rewarding in some sense and I enjoyed working with them. But at the end of the day, it didn't get me up. It didn't feel like I was motivated every day to do my job as much as I wanted to. So I wanted to represent people that I felt like really needed the representation.

And plaintiff's law, obviously you have people that are hurt, that are in significant need of help. You're not company X suing company Y, you're not billionaire A, soon billionaire B, you're representing someone who's severely hurt or has lost a loved one. And that just motivates me a lot more and gets me up in the morning to do my job.

Now, Helen, you have been at Kline Specter not that long, but longer than Mark, right?

Yes. I've been there about four years now.

So how did you ... We were talking before we started here that I was commenting that you seem to have a pretty sort of eclectic practice. The last case we talked about was some type of weird workers' comp kickback billing type case. And now this is this sorority hazing type case. Are you intentionally trying to work on a whole smattering of different practice areas or is it just kind of whatever gets thrown your way you jump into? I

Really enjoy the intellectual challenge of moving from area to area. I definitely have a couple of repeat players, kind of cases where I've done a couple to develop more of that subject expertise. I've had a few rideshare matters. This is actually one of two hazing cases that I've worked on. I was on some of our incline sleeper litigation, which was a bunch of products liability cases around the Fisher Price Rock and Play and similar products. But being able to do different kinds of work, I think is one of the really unique and wonderful aspects of KNS. And while we definitely have some lawyers who are further in their careers and are very specialized and enjoy that, personally, I really like the challenge and I like the variety.

So now that you are officially a subject matter expert of fraternity hazing type cases, I've never handled one, but I know that they come up not infrequently. And so if you could from say like a 30,000 foot view, can you describe maybe some of the unique aspects of these cases? And one thing I would say that kind of jumped out to me that I thought was interesting was, and correct me if I'm wrong, but the original pleading was against a fraternity, a sorority, and then something like 32 individual people, which I'm assuming were probably fraternity and sorority members. So that kind of jumped out today. So I'd like to know why that approach. There had to be some strategic basis for that. And then second, sort of big picture unique aspects of working these cases up and trying them.

Yeah. So while these don't come up infrequently, it's still, I would say, a burgeoning area of the law, including in Pennsylvania specifically. So when they first pled this case, which is now over six years ago, I think there was some strategic benefit to having as many theories that we could then test out. So all of the individuals were individuals who were either present or involved in organizing this event. That's one particular theory. And then we also wanted to test vis-a-vis the Greek life organizations themselves. It was over 40 defendants originally. We dismissed a handful who we learned during discovery were not involved materially, but we needed to err on side of caution in terms of advancing these theories. And this is the first case that has been tried to verdict, I believe, in Pennsylvania under the anti-hazing statute. So that was also a relatively novel area that we needed to test.

And tell me about that, because I guess that's sort of resonating, something in the back of my head that I've heard that before, but tell me about the anti-hazing statute. When did that come into effect and what are the basic terms that allow ... I mean, so are you allowed to sue under it as a civil remedy?

So the statute, which is actually the byproduct of some really amazing advocacy on the part of the Piazza parents whose son Tim died as a result of a hazing incident at Penn State. That statute is primarily a criminal statute. It has criminal provisions that pertain to individuals, but also allows for civil remedies against individuals and against organizations and against educational institutions. It also requires annual reporting and data, which leads to greater transparency from those educational institutions. So it's a really fabulous piece of legislation. They then adopted near mirror legislation in New Jersey, which is actually where the Piazzas are from. And there are also different state equivalents to various degrees across the country. Not every state has one of these statutes, but many of them do. They differ slightly, but there have been a couple of national coalitions that have really advanced. This legislation have also been working on federal legislation to try and draw attention to this particular issue, because it's something that doesn't really fit in our traditional rubrics of negligence or of the criminal world super neatly.

And so there's been a real push to design legislation that accounts for this particular set of circumstances.

So we have the statute, which obviously sounds like, I don't want to say a weapon, but something that benefits and allows as kind of a legal stepping stone to get these cases off the ground. So for anybody else listening who is investigating or starting to work up a hazing case, and I assume these could be injury cases or death cases, what are things to keep in mind that are looking back on your cases that were ... You've learned, okay, now next time I'm going to do this.

That's an interesting question. So I think first of all, just being aware of the dynamics at play and being aware of the stereotypes that people have, right? You're going to have to confront the fact that people will assume that the hazee did this voluntarily, potentially, that they consented to this. How are you going to deal with that? How are you going to deal with the argument that if your client participated in underage drinking, that this is not their fault, that they knew what they were getting themselves in for? All of those sorts of arguments and really fleshing out the power dynamics at play to try and contrast perhaps with what people expect in these situations. And in particular, because the legislation is very strong, it's not necessarily ... It encompasses situations that not everyone would necessarily think of as hazing immediately, so you want to be ready for those on the forefront.

And then disparate point, but something that I would absolutely stress is the importance of obtaining communications in these cases and working that up from the beginning, doing your social media investigation, doing your comms investigations, because that's really the treasure trove of evidence in a lot of these cases.

I'm assuming that the text messages, social media that is just second nature to everybody involved is going to help you tell the real story of what was going on. One other question, I was reading that the national organizations seem to pass a policy like this is the policy of AST, or this is the policy of Omicron, or I couldn't even keep up with all the fraternity names in this case, but it sounded from your pretrial documents that's ... I'm trying to think what the right word would be, but kind of a sham or it's like ostensibly this is the way that we operate, but everybody knows that nobody actually follows those rules about underage drinking and no drinking and all this kind of business.

Yeah, that's right, Brendan. They were paper policies at the end of the day. That's kind of the way we were thinking about it. It was just policies that were drafted and handed to these fraternity members, these sorority members, and said, Follow these and then check back in when it's time to pay your dues. That's kind of how the relationship worked, and that's a theme that we stressed throughout trial.

And in stressing that theme, because things like that come up in other contexts, a lot of employers will put together these safety policies, but everybody knows that they're kind of a sham and aren't really followed. So do you also use it as the standard of care sort of like, well, this is what you're supposed to do, but at the same time, everybody within this organization knows that they don't actually do that.

It's a little bit tricky because you have both the individuals and the national defendants. So for the individuals, yes, you're saying you are aware of these policies, you're aware of laws around underage drinking, you're aware of all these things, but you didn't follow those policies, you didn't follow those laws. And while at the same time you're saying to these national organizations, you didn't do enough to enforce policies. You had the policies, but you didn't do anything about them. So it is kind of walking a tightrope between those two things, but you try to advance both arguments. It just depends on if you're talking about the individuals who were there or the national organizations.

So why don't we, either one of you who wants to start, give us a little bit of the background of what happened in this. Where did this take place? Who were the integral parties involved and how did this tragic outcome come about?

Sure. So Justin was about two weeks into his college career at Bloomsburg University. He was 18 years old. It's the first time he'd been away from home. I think Brendan, you were saying you found this story affecting. It's probably because it's every parent's worst nightmare that the second you drop your kid off, something happens to them. He was looking at Greek life as a way to make friends. It was something that he ... It was very big on Bloomsburg campus and he knew was the way to do that. So this was during the period of not pledging, but brush. Before that, he was what was known as potential new member, and he was invited to an event that was for purposes of affiliating with the fraternity, Kappa Sigma, but was hosted by ... The event was co-hosted by a sorority at a sorority house. So that's why there's those two sets of actors involved.

Members of these two organizations planned and organized this event together. They purchased alcohol together, and the sole purpose was to provide that alcohol and fanish it to these potential new members, most of whom were 18-year-old freshmen. In terms of what takes place precisely at that event, we have limited information, but from what we can tell, huge amounts of alcohol were served, including in a highly alcoholic concoction known as blackout water quite illustratively. And Justin, following this main event, as well as a short after party at a few of the fraternity members where they resided that he was invited to after the combination of those two events, he ended up at the bottom of a cliff very close by on campus with a BAC of over 0.2, which would put him at nearly three times the legal limit under the DUI statute.

And I think I saw that he was basically just discovered there the next morning kind of thing, just awful. So one thing that I would imagine jumping out, and I think this is somewhat in reverse order, but the event that led to his death was completely unwitnessed, I'm imagining, right?

The fall, yes.

Yeah. And were there hurdles in that sense, and I'm thinking about a particular case in which I got dismissed in federal court, because so the court said you couldn't say with any degree of certainty what actually caused them to fall. I mean, was that issue raised and how did you get over from the sense of, well, what if somebody pushed him? What if he tripped over a rock? And I'm not trying to be difficult, but I've run into this. It's like removed from all the negligence, you know what I mean? Like that kind of proximate chain of now he fell off and we don't even know how he fell off. So how did you overcome that?

Absolutely. It was definitely a challenge and the death of information towards the end. I think our experts were really vital in this regard. So we had a digital forensics expert who was able to track the movements of Justin's cell phone throughout the course of the night and until the cliff that put him in the area of his death very shortly after he left these events. And we also combined that with expert testimony from our forensic pathologist who also opined around time of death, those things lined up together. And so the very short delay between leaving these events and what we determined was Justin's time of death, I think helped with that unbroken chain of causation. It's also worth noting that discovery in this case was about four years. They tried everything and anything they could to try and demonstrate that Justin went anywhere else where he could have been furnished alcohol, where there could have been some other bad actor, turned up nothing.

Justin also had no indications of any suicidal intent, nothing like that. Nobody else appeared to be involved in terms of the final outcome from the police's perspective, but it was definitely a circumstantial case. And one thing we had to stress from the outset and all through trial is that jurors are allowed to use their common sense. Just because you don't have something point blank in front of you on video doesn't mean it didn't happen if you can put two and two together.

Gotcha. So this incident happens, tragedy. What were the family's motivations in bringing this lawsuit? I read a little blurb in one of the news articles that his mom was supremely satisfied with the verdict, but obviously doesn't bring her son back. But from the family's perspective, did they have, I would imagine, a goal greater than financial outcomes?

Absolutely. Carol has also been involved in the anti-hazing efforts across the country, including through the anti-hazing league. I think accountability was just really important for her. From the outset, the two Greek life organizations in particular were really taking this stance that Mark was talking about earlier, we don't have the resources, we don't have the means in order to police this behavior. We don't have any way of enforcing our policies even though we're going to pretend that they exist. And so I think for her, the accountability vis-a-vis these organizations was really important in addition to obviously compensation that she is entitled to. In terms of the investigation, it would've been preferable if we had had some smoking gun that came out, but unfortunately, sometimes the simplest explanation is what's true. But overall, she was very satisfied with the outcome and we are incredibly supportive of the work that she's doing.

Talk to me for a minute about why this case had to be tried. Just as a lawyer myself looking at this, I'm assuming the fraternity settled out, maybe some of the remaining individual defendants settled to some extent, and you have this AST that seemed pretty entrenched in their position. What was it about their view of the case versus everybody else's that made them so seemingly not interested in settling and feeling like they weren't at fault?

Yeah, I think the biggest thing was they claimed they're a thousand miles away, so there's really nothing they could do about it. And I don't want to put the cart before the horse here, but we even predicted that that would be a theme throughout their opening trial or statement during trial. And sure enough, it was, they had a big Google Maps picture as one of their premier slides about where the headquarters is and where the party happened. So their theme was, look, we didn't know Justin King was going to walk through the door that day, which is absolutely true. They had no idea this kid was going to walk through the door, but our theory was they knew someone was going to walk through the door and this was going to happen to some eventually. It didn't have to be Justin, it could have been someone else.

But eventually, if you don't enforce these policies, if you let this behavior get away, then eventually someone's going to get hurt from it. So we thought that they had a duty. They had a duty to enforce the policies at their local chapter. They're a business after all. Greek life is not a charity. It's a business. It's big business. And so they had a duty to enforce their policies and ensure that people that were attending events like this held at one of their sorority houses are safe. So obviously they didn't see that. They didn't think that they had the ability or resources, as Helen said, to enforce those policies, but we thought they could have and

Should have. Mark, that's an interesting point that I was ignorant too, that when you say that it's big business, so is AST, is it a for- profit corporation or a nonprofit, or how does that work? I believe it's for- profit. Helen will correct me if I'm wrong, but-

Some Greek life organizations are classified as for- profit, some non, but more broadly, I think the idea that they are collecting dues, right? They're collecting money from all of these members, and what is it that they're supposed to be getting in return? What is the purpose of you having a national organization that has institutional knowledge that deals with these kinds of incidents and these kinds of risks time after time all over the country? What is the benefit to those members, if not some enforcement of measures around their safety? I think that was something that we wanted to stress. Also, to your previous question, Brendan, this may seem facetious and obvious, but I think it's worth talking about. This is a sorority in the death of a boy who's trying to become a member of a fraternity. I think they thought that optic was going to be far more important than it is, but the reason the statute is written the way that it is, which is anyone involved with the affiliation of anyone into an organization is because this kind of cross-pollination happens all the time.

Athletes are involved in fraternity hazing and vice versa. Different Greek life organizations do hazing together and so on. And I think the jury really saw through that, but AST anticipated that that was going to be a stronger point than it was.

Given the fact that there are so many of these, and I'm probably using the wrong terms, but chapters nationally, did you have evidence of prior incidents or similar incidents that you could use to show foreseeability or notice as it relates to a case like this?

Yes, we did, both for AST specifically, also for the fraternity specifically and that chapter at that campus. They tried repeatedly to invoke the similar incidents doctrine, which you might be familiar with from sort of trespass cases, premises liability and products cases. And we argued very straightbroadly, this is about notice. This is what negligence is about. You are aware of a risk. And I think that argument might have been more persuasive a couple of decades ago, but at this point, everyone's well aware. There's been some really high profile hazing incidents across the country. I'm thinking of the young man who died in the swimming incident in Florida. I'm thinking of Timothy Piazza, obviously from the Penn State case. These corporations or nonprofits, however you want to define them, are on notice. They know what these risks are, and I don't think it's unreasonable for us to hold them to those standards.

Did you have any type of sorority fraternity safety expert? I feel like you can find an expert for anything, but I imagine you had somebody like that.

We did. And that's a really interesting question because we had him throughout the discovery process, throughout summary judgment, and then we made a last minute strategic decision not to bring him at trial. And there's some implications behind that we can't absolutely discuss, but we thought that the jury would understand just from common sense that this national organization had a duty to their local chapter and to the members and people that were going to walk through that local chapter. And we thought that our expert was really helpful to get us through discovery, get us through summary judgment and kind of help frame the issues for us. But once we got to trial, we thought that the jury would understand this and we could put forward our case through AST, through the CEO, and through their own sorority members, basically through their witnesses.

I'll just point out that's perfect evidence for young lawyers of A, you have to take risks to try a case, you're probably thinking to yourself, should we call the expert? No one would blame us for calling the expert, but you made a strategic decision that you thought the case would be better without them because of the common sense component of it. And by doing that, you're then not overtrying your case, which I think are two really important takeaways from ... In hindsight, they seem like such easy decisions, but I would imagine that wasn't a simple decision whether we use this person that's been with us the whole time and abandoned that person coming in and being our quote expert at trial.

And sometimes that's the most useful thing that experts can help you do. It can help you through discovery. "What are you looking for? What are the industrial standards? You were talking about what the standard of care is. I think some of that in this particular context comes from Panhellenic interganizations and they have that sort of subject area expertise that can help you in terms of framing the issues, in terms of conducting discovery to Mark's point summary judgment in particular. But that doesn't mean that that's necessarily the way to present an issue to 12 ordinary people who are going to intuitively understand. And I think we have to be aware of coming across as lawyers as perhaps a little condescending and erring away from that. And one of the ways is to simplify your expert testimony or streamline your expert testimony and then only really use it where it is genuinely additive.

Yeah, I think that's a great point. So let's pivot to the trial. This was Luzerne County and state court. What was the jury selection process like in this case and what were your goals from jury selection, whether it's de- selection or particular types of people that you're thinking might be good jurors for you?

So jury selection was very fast-paced. If you are familiar with Philadelphia, it's a different process per county and you get different amounts of time. This was a very efficient process. The main thing with a case like this that's going to be as long as it is that the court is concerned about is people who are going to stick around and not have conflicts. So we didn't end up with a huge amount of control, I would say, in terms of excluding for our super rarefied preferences. But one thing we were obviously seeking as parents, people who will really feel that fear that one has when dropping off their kid or when your kid moves out of home. In terms of one thing though that was really interesting is defense really revealed their theme during voir dire. In terms of the questions they asked, it became very clear to us if we didn't know already how they were going to try this case, and they kept stressing this theme of personal responsibility that was something that they asked repeatedly during voir dire, which gave us an opportunity to really seize that ground in an anticipatory way during openings and all through the case.

How did you do that? I mean, because sometimes the personal responsibility by the defense argument can be very effective, but I find sometimes that it's just kind of like the go- to move and it becomes very heavy-handed in the way and not ... And it can backfire because like, well, yeah, you've got personal responsibility too, and you're actually more responsible. So how did you seize that ground or that frame from them?

Exactly. We did that precise turnaround that you just mentioned, and I think people are becoming more receptive to the idea that corporations are often very neglectful of their responsibility while simultaneously asking individuals to be hyper aware of the ramifications of their actions. So that was something that we could really seize on. I think also cases that involve young people, people are Understand that their decision making is not as mature. To contrast that with an organization that has a professional staff, that has a CEO that's been in this sector for decades, that itself has existed for decades. I think that contrast was very helpful. And so yes, there's responsibility in terms of the individuals who are involved here in our client, but what is the framework by which we would organize these actors? And for us, it was really about power, it was about knowledge, it was about who has the capacity to prevent these things.

And when you set that framework up, who should be held the most responsible? Who should that responsibility be allocated towards?

Can one of you walk me through the approach to opening? What was your central premise or rule or frame? I mean, you sort of just talked about it, Helen, and then what did you feel were the key piece ... Because you can't put your whole case into opening, but what did you feel and what did you ultimately decide on were the key points that you wanted to make sure were some of the first things that the jury heard?

So definitely that framing that we were just talking about. Definitely differentiating this from just typical drinking, typical party culture. Why is initiation different? Why are the moments when young people are trying to become accepted, more dangerous, riskier? Exactly the reasons that this legislation exists. And then for me, I think this opening was more anticipatory than you would do in other cases, in part because discovery was so exhausted. We had been doing discovery for over four years. If you are not in that situation where you haven't deposed everyone or spoken to everyone, then it could be a little riskier to take that strategy. But I think we could put a lot of rebuttal of what we thought they were going to say and exactly what they did end up saying upfront by virtue of how long this case had been going through. So it was a lot of, to Mark's point, they're going to tell you they were really far away.

That's some revelation. That's not what we are worried about here and really taking on every mantle that we could upfront. I don't think that would be the right strategy in every case, but it was here.

How long was the trial?

It was 11 trial days. It spanned essentially over three weeks because we had a holiday in the middle and then a snow day as well.

So logistically then, long trial. The one good thing I think about being in the outlying counties is that they're much ... I think ... I don't know what Philly's like, but they're much tougher on the hardship excuses. You have to have a real hardship in the outer line counties to get out of jury duty even for a three-week trial. So logistically though, how did you divvy up who was going to do what in a case of that length and size?

So Ben present and I were ... Ben, who isn't able to be with us today, he closed. He did the cross-examination of the OST CEO, which was incredibly important. And he had been living and breathing through digital cell phone world for a couple of years. So he was handling those experts on both sides. I took on the more sciencey CSI portion of the case, I would say. Our pathologists, our toxicologists. I also dealt with Carol's examination, which I thought was very important, the mother and opening. And Mark, to his great credit, jumped on this case very late in the game, which for a record this long, I thought was very impressive and was just willing to help out wherever.

So opening goes, defense does their opening. Who do you lead with as your first witness? Because I feel like the first witness is always quite important, so long as there aren't total giant scheduling problems and so forth.

It was originally going to be our fraternity/sorority liability expert that we talked about, which was the last minutes. Right, of course. So last minute shuffling, but we essentially structured our witnesses. So it was the sorority sisters at first. So we could have them talk about their relationship with nationals, how often they saw them, which was next to never for this incident. And then sort of the only time that they heard from nationals was when their dues were late. So we front loaded it with a lot of the sorority sisters. Then we went on to the chapter advisor, who was a volunteer advisor that was a member of the sorority many years ago, and basically just acted as a kind of liaison between the national organization and the local chapter. And then we did the CEO of AST and I followed that by our experts. Then I'd put a couple extraneous witnesses there, one of Justin's roommates, one of his dorm mates, and then we had to call in, which is a funny story, the manager of a local convenience store, just sort of last minute to prove that our client didn't buy alcohol while he was there and bring it to the party, and then ended it with both Carol, the mother of Justin King, and then his brother, Drew King as well.

I saw in one of the, I think it was the defense pretrial that they were suggesting that Justin had brought his own alcohol to this party. I mean, was that a disputed issue? And I mean, the relevance being that, oh, he wasn't even drinking the alcohol at the party, so this was completely self-inflicted.

So there were a couple of theories that came up during discovery that we pretty clearly dealt with that AST essentially tried to resuscitate. And I think this was an error on their part, one of which was Justin going to another fraternity. There was no evidence of that, and there was evidence to the contrary that the event they were mentioning didn't exist. And then the second was that he brought his own alcohol to the party. This we are pretty certain based on the text messages and other evidence we were able to uncover, was a cover story that was invented by members of the fraternity after these events, and that's very common in these cases. And you can have an expert speak to this, that members of Greek life, when faced with a potential investigation or a potential violation of school policies, will concoct a common narrative that everyone is supposed to adhere to.

And in fact, with some high risk events, they will concoct this narrative in advance in case anything goes wrong. And so you'll hear the same thing through all of their depositions, their interviews with the school, whatever sources that you have. But when we push to shove, nobody ever has any details. It's all something someone has heard from someone else. And I think we were able to show both in discovery and then again at trial that this was all Chinese whispers that had been made up to conveniently deal with what happened to Justin.

So were there any particular, because it sounds like the defense, they get in, they feel confident, then they start realizing, "Oh, our argument isn't so hot right now." Did they, from your vantage point, make any strategic or argument blunders that you felt really even further turned the tide for your side?

Personally, I think it was things like that. I think they were trying to pursue too many different tracks at once, and it would've been more effective to concentrate on the one that they could prove most easily. For example, AST being at a distance and not having the means to enforce their policies, picking a lane as opposed to that, and the sorority members are a problem, and the fraternity members are a problem, and Bloomsburg is a problem, and Justin is a problem. It was so many different threads, and particularly once you are bringing cross claims, the burden of proof is on you to make sure that that happens. And if you don't meet it, you don't come across as as credible as you should be. So from my vantage point, I think what the unforced error was on their part was just trying to pursue too many positions instead of ones that they could actually meet the burden for.

And just to add to that, Brendan, their CEO had what I thought was a really great analogy. He said that we had policies and people didn't follow them, just like there are laws in our country and some people choose to break those laws. It doesn't matter if we have police, it doesn't matter if we have prisons, it doesn't matter if we have all these things. People know these laws exist and they still break them. So us as a thousand miles away from these girls on a random night, it's tough for us to police everything that's going on there. They're still going to break the policies, doesn't matter how much they know about them. And I thought that was a really strong point for them, but it wasn't a theme that they emphasized throughout trial. It was just sort of a line in his testimony and then they kind of moved on from it.

And then during cross-examinations, they would talk about the way Justin's body was positioned at the bottom of the cliff trying to, I think, so doubt about how he died rather than focusing on their actions and their conduct. And I think the jury saw through that, they saw that, look, they're poking holes in all these little things that are tangential, but aren't really the main issue in this case. And I think it was a blunder on their part.

And so if I try to just simplify what your position and your whole case was about is that the national organization is responsible when they're accepting all these dues to essentially, you probably can't ensure, but do a lot more than what they actually do to help prevent things like this from happening. I mean, is that kind of the short of it?

Precisely. No one is expecting perfection, but for example, the advisory board, the chapter advisor was a member of, which are the alums that are supposed to help these current students was unfilled. The board consists of one member, it was supposed to be five for years. In terms of recurring training, there was nothing after initial training, there was nothing done in the face of prior incidents. So there's a big latitude between just simply putting out paper policies and hoping things go well and ensuring absolute perfection. And that was kind of the dichotomy they were trying to draw. We were saying there's something in the middle that can be done that would improve outcomes and that would make an event like this not likely to happen.

I think an interesting thing that's just sort of dawning on me too is that the parent organization, AST, they can't be held sort of vicariously negligent for the actions of the sorority members, right? Or can they?

We did not pursue that theory because there is some bad case law in other jurisdictions, but also because it was more helpful for us to have the distinction. In terms of proving them as agents, I think that would be difficult, but not impossible, but it was also more helpful from us from a narrative perspective to say that these girls were not acting on their behest because they didn't know better. An agent relationship implies that there is better communication from the top down than what we were trying to prove.

Well, suss that out a little bit more because I'm just sort of mulling through this in that I'm imagining, okay, Mark just said, the CEO said, "Hey, we have the rules. It's just that some people, i.e. Our people, I mean, in part, didn't follow them, but that's not our fault. I mean, there's only so much that we can do and we're far away and that whole thing." Part of me thinks then, because I'm imagining through social media and text messages, you probably got some good stuff about some pretty reckless behavior that you would sort of expect is going on at this alcohol infused rager. And so if you thought you could connect them potentially as agents, isn't that almost like slam dunk liability if you show, "Hey, look at all these reckless people violating all these rules, we got you on vicarious versus, Helen, you're telling me you felt there was a better ... It played better to go directly to the parent organization." Why?

Yeah. First of all, as I say, I think the legal framework is hard for various reasons and other cases, but in terms of the narrative perspective, an agent is someone like the level of control that we would need to prove I think would be difficult, but would also get away from the fact that what we wanted to put was the onus on AST to foresee these risks and do something in particular on campuses like Bloomsburg where there had been historical issues and where there were violations of policies and previous decisions. And I think all of that was better done by proving the direct negligence than trying to imply, "Oh, they're clearly acting on the behalf of ... " I think that would've been a stretch.

Yeah, I get it. And then did you have sort of a list of ... Because I think it's a key thing, you don't want to make this sort of the standard of care that they're to meet too high. You want to create like, look, this is just a bare minimum is what we're asking them to comply with and meet. At a bare minimum, what was your argument as far as what they should have done and did not do?

I think one of the big things was check in on the sorority, go there and talk to them, inspect the place that they were living, get a sense of what they're doing when they're there, have a relationship with the chapter advisor. Even the chapter advisor who's a voluntary position said, "I could use more resources. I'm struggling here. I have a full-time job. I can't be this constant liaison between the national and the chapter. I have other things I have to do as well." So provide those resources, especially if you're going to take dues from the individual members. I think I said this before, but the only time that AST National visited the sorority, the individual chapter was after the incident and they showed up with a lawyer. That was the first time that most of the sorority members had met anybody from the national organization, and we thought that was really powerful.

And going back to the point about them being a thousand miles away, while that is true, a third of their locations are in Pennsylvania, a third of their individual chapters. So the fact that they couldn't even take a road trip throughout Pennsylvania and stop by a Bloomsburg and visit that chapter, I think was really telling.

I mean, you talked about that they went the throw everything against the wall and hope something sticks, but how did they lead off in their defense? And I mean, it doesn't sound like they had ultimately a unifying theme of what they were arguing, but how did they try to defend the case in their case in chief?

Yeah, it was a lot of throw everything against the wall. It was a lot of, we weren't there, we couldn't be there, we couldn't police it. Another thing they tried to do was blame our client, Justin. They kept saying that he was this big drinker, big partier, and there was evidence that Justin King had underage drink. No one was refuting that. He had definitely had some beers. He attended parties in his first couple weeks in college. No one was disputing that, but to make him out to be some sort of raging animal when he really wasn't, I think backfired. One of their star witnesses that they at least tried to play up as a star witness was one of Justin's friends from high school. And in the defense council's opening statement, and then even throughout his examinations of all of our witnesses, he kept bringing up this high school friend and saying, "Were you aware that Justin would drink with this friend all the time?" And after repeating that and repeating that, when they finally got to their case, their very first live witness was this high school friend.

And it turned out that he wasn't even there on the night in question. He wasn't in Bloomsburg because even though they went to high school together, they went to Bloomsburg together, he was back home that weekend because he had to go work at his job. So to keep playing up that witness and make him out to be like he was going to be some star and then all of a sudden he wasn't even there on the night in question really backfired. I think the jury was like, okay, and I don't want to jump too far ahead here, but their very first question as they went back to the deliberation room was, "Were this friend and Justin together that night?" So we were able to give them the transcript and show them they weren't together. So I think it's a lesson that if you're going to write checks, you got to cash them.

You can't be promising all these big revelations and that it flops at the end of

The day. I mean, just the fact that the defense was trying to use one of his friends as their beneficial witness, I mean, had they had a falling out or was this guy doing this just because he got pulled into it and was just kind of telling the truth about his friendship and hanging out with Justin in the past?

Yeah, he was just telling the truth. He wasn't, I don't think, trying to be harmful to us nor helpful to the other side. I think he was just a straight up guy who was saying, "Yeah, I hung out with Justin in high school and we both went to Bloomsburg together." We used to drink occasionally in high school and in college, but that was the extent of it. And he even said, "I never saw Justin get out of control either in high school or in college.This kind of surprises me that this would happen because I had drinks with the guy before and nothing like this ever happened."

And how did he even get into the case to begin with, this friend? I mean, did somebody else mention him or why did the defense even learn about this person?

He was interviewed as part of an investigation that was conducted by the Pennsylvania State System of Higher Education,

Justin's death. That was how a lot of these individuals were learned of by both sides, including people who were in the dorms, people who attended both of these events. And also what was interesting, Brendan, not only was this their first witness, it was their only live witness. It was the only person they called live at trial. So then to have that person's testimony be kind of irrelevant, particularly since we had already anticipated in opening with our toxicologist repeatedly in other instances, we'd had Carol admit to the fact that Justin drank on prior occasions, we made it very clear we weren't running away from this. So to have that be your first, your star and your only live witness wasn't particularly compelling.

What did you think ... I mean, we talked about mom's motivation for this lawsuit, but sometimes in death cases, you can't help but worry there might be a sect of the jury who thinks to themselves like, "What's the point of the money in a case like this? " I think the verdict was like 7.5, 7.3, something like that in that vicinity. Okay, 7.8 million. I mean, that's a serious chunk of change. What do you think motivated the jury to ... And I thought it was interesting. I always appreciate when it seems like the juries are very ... I feel like they're really trying to do a good job and be thoughtful about it. And I think the apportionment was 35 AST, 35% out the fraternity, 24 against Justin and 1% against who? There was like a 1% or something. But in any case, they clearly thought out and really tried to make a measured verdict.

However, what about this case do you think motivated them to award that much money in this case?

So the largest aid of damages was lost earnings. There is something to young people who have their whole life ahead of them. But I also think we did, and Ben President in particular did a very strong job during closing of emphasizing that this is something that Carol is going to have to live with for the rest of her life and really framing that in granular terms, what does that mean? How many days go by will you think about your kid? And personally, as someone who's worked on a number of different cases, injury cases and so on, I find that parents who've lost children are perhaps one of the most devastating demographics to deal with is almost unnatural to you. It is what is not supposed to happen. You are supposed to go first. And so to break down for the jury, this is something that's going to exist in her mind on all of these occasions, has done over the pendency of this case.

Carol came to all but one of the scores of depositions in this case. This is something she has lived with since that day and will for the rest of her life. Second largest item on damages was those companionship damages for her. And I think the jury really understood that.

I mean, I don't know to the extent that you talked to the jurors. I don't talk to them anymore when I win, but did you have a sense of what the biggest sort of tickoff factor or piss off factor was in the case? And one thing we didn't talk about was the extent you alluded to at the beginning that social media or text message or things like that played a role in this. So could you talk to those two things? What do you think was ... Because I think there always has to be a bit of an annoyance factor or just like, these people are wrong and they need to be held accountable. Something has to resonate with the jury and then the extent to which any of the social media or text messages interplayed with that.

I think the social media and the text messages were good. I really demonstrated what kind of event this was and that this was above and beyond what you would typically expect at a party that involves some drinking at college. But in terms of really inciting that feeling in the jury, I actually think AST CEO being very ... I'm trying to think what the exact word I want to use, but really speaking around in circles, he was just refusing to give straight answers. He was refusing to be clear cut and combine that with defense's chaotic approach to the case in general of having all of these threads to follow, and then you contrast that with us being extremely clear, having a consistent through line, asking very direct questions, making very simple statements. I think when compared with this guy who was trying to talk his way around things and obsocate responsibility after they had emphasized their personal responsibility was so important, I think that was the factor that really got to the jury.

And did you call him in your case or was he in their case?

We did. We called him as a cross.

Just because you felt that there were so many things that he had to concede that would play well for you? Absolutely. We'll wrap up. I'm just a little bit curious about how did you approach mom's testimony? Because obviously, as you mentioned, that was a big part of the closing that Ben put on was from the loss perspective, it's mom's loss of her son. So A, how did you prepare for that testimony? Did you prepare a lot or was it more general because you don't want to overdo it? And then what did you think was most poignant that came out during the testimony?

Yeah, so we called Drew and the mom. Drew, I think was actually also an exercise in what Justin could have been and the life he could have led. Obviously, his siblings' damages aren't compensable under the law, but to see this young man who's very successful and likable, it's very helpful for the jury in terms of picturing what has been lost here. In terms of Carol's testimony, I always try to prepare witnesses in these cases to the degree necessary that they know what's coming, but not beyond that. And to always ask them questions like, "If you wanted the jury to know three things about your kid, what would they be? " Or, "Can you think of a few small anecdotes? Can you think of a few small stories?" And in particular, she had this wonderful story about how this really resonated with me because my husband is a catcher.

Her son was a catcher at baseball games and every game he would go up to everyone and say, "Hi, I'm Justin. I'm going to be your catcher today." This is literally precisely what my husband does. And it's just this wonderful anecdote that really tells you the kind of person that Justin was. And I think having stories like this, damages can be so abstract, right? Law can be so abstract and confusing. And what you want are things that really ground your jury in who they're dealing with and what has been lost to this family. And so if you can get from your clients a few really hyper-specific examples, because it's so overwhelming to be asked, "How did the loss of your son affect you? "That's an enormous question. Instead, can you tell me three things that you missed? Can you tell me three memories that you think really encapsulate who he was and then bring those out?

Love it. I imagine there's an appeal pending, right?

Absolutely.

It didn't strike me as one that they would go down without a fight after a verdict like this. Amazing outcome, $7.8 million. I read just how much mom appreciated, clearly appreciate the work that all have you put into it and just appreciate the outcome. As you look back on that trial, is there a particular moment that sticks out most in your mind? I mean, it sounds like maybe it was the combination of the CEO or the mom, but I mean, was there any other sort of moment that sometimes there's that kind of mic drop moment or some big revelation, or sometimes it's just you had a strong case and just kind of consistently building in the credibility battle between both sides, you had the better case. But as you look back on it, what was the overall vibe of this case?

For me, it was definitely when Ben was cross-examining AST CEO and he asked the CEO, I forget exactly how you worded the question, but something to the effect of, "Do you think that just handing policies to a group of college kids is enough to deter this type of behavior?" And the CEO sat there for, I'm not kidding, at least 45 seconds, maybe a minute, in silence, staring off into the distance, thinking about the question. And it was clear he was thinking, "Oh crap. If I say yes, I'm in trouble. If I say no, I'm in trouble, I got to figure out what to do here." And then finally he said, "No." And then we break for lunch. So the jury was left with that for an hour and a half to just think about. And I thought that was a very powerful moment for us.

Yeah, sure sounds like it. So excellent. So amazing outcome, great verdict in King versus the AST sorority. I wish you and your whole crew the best of luck on the appeal and certainly Mrs. King and Drew that this all holds up. Thank you for sharing the story and your approach to the trial. Helen Lawless, Mark Fuchs from Kline Specter. Really appreciate it. Very interesting, and I'm sure we'll be talking to you both again sometime in the future.

If you enjoy the show, please subscribe to the Just Verdicts podcast on your favorite platform and consider leaving a review. And if you're interested in co-counseling, local counseling or referring a catastrophic injury case, we'd love to work with you. Call us at 412-281-4100 or visit our attorney referral page at pamedmal.com/refer. Thanks for listening.