Jury Themes In Product Liability Trials: “What Did You Expect?” May Be Your Strongest Defense

In product liability litigation, particularly in cases involving complex or software-enabled technologies, the defense often faces the challenge of overcoming emotional narratives and a deep misunderstanding of the product's actual functionality. One of the most effective jury themes available to defense counsel is deceptively simple:

What did the user expect this product to do—and why?

This question shifts the focus from speculative or idealized performance to the product's real-world design, limitations, and intended use.

The consumer expectation test is a legal standard used in product liability cases to determine whether a product is defective. Under this test, a product is considered defective if it poses a danger beyond what an ordinary consumer with common knowledge of the product's characteristics would expect when used in the intended or reasonably foreseeable manner. Bifolck v. Philip Morris, Inc., 152 A.3d 1183 (Conn. 2016), Flemister v. GMC, 723 So. 2d 25 (Ala. 1998). Getting the plaintiff to admit what he expected can be a winning theme for the defense. Here are a few tips for defendants to use consumer expectations in litigation.

1. Seize the “User Expectation” Narrative Before It’s Weaponized

Plaintiffs will often frame their case around what a “reasonable consumer” supposedly believed the product would do. If you allow this to go unchallenged, that narrative may shape the trial.

Instead:

• Establish early that user expectations should be based on the product’s actual design and instructions, not on marketing soundbites or wishful thinking.
• Emphasize warnings, disclaimers, onboarding processes, and training provided to the user.
• Show that expectation and reality were aligned—if the product was used as intended.

Ask: “What did you believe the system would do in that situation? What made you think that?”  What did you believe at the time you bought the product?

2. Frame the Case Around Reasonable Use, Not Ideal Outcomes

Jurors apply common sense. Help them understand that the product was not defective simply because a user misunderstood or misused it.

• Demonstrate that the product functioned as intended—within reasonable use.
• Establish that software-assisted systems require user engagement and are not substitutes for human judgment or responsibility.
• Use demonstratives or expert testimony to clearly explain what the product is, what it is not, and what it requires of the user.

3. Anticipate and Rebut the Marketing Mismatch Argument

In cases involving emerging technologies or new features, plaintiffs often rely on broad or optimistic marketing language to suggest capabilities the product may not actually possess.

Be proactive:

• Audit and disclose what the company actually communicated to the user at the time of purchase or use.
• Distinguish between advertising language and actual operational reality.
• Include testimony from corporate representatives or engineers who can clearly explain the product’s actual intended use and limitations.

4. Use Your Jury Theme to Tie the Entire Case Together

A strong jury theme offers clarity and consistency. When built around user expectations, it can counteract speculative claims and redirect juror attention to defensible facts.

Consider themes like:

• “What did the product actually promise?”
• “Assistive—not autonomous.”
• “Warnings matter when followed.”
• “Tools require skilled users.”

Reinforce your theme in:

• Voir dire (to identify jurors with unrealistic tech beliefs)
• Opening (to plant the expectation-reality framework)
• Cross-examination (to challenge unsupported assumptions)
• Closing (to pull the whole narrative together)

Conclusion

In an age of software-assisted products, automation, and AI-enabled devices, consumer expectations serve as both a liability and a defense theme. Plaintiffs will try to define what “should have happened.” Your role is to focus the jury on what could reasonably have been expected—and whether the user had any right to expect it at all.

Always ask: What did the plaintiff expect—and why?

That single question can transform speculation into scrutiny—and establish the basis for a successful defense.

 Jim Pattillo is a member of Christian Small, LLP’s Product Liability Practice Group. He is leading litigation counsel for insurance, product, and commercial clients and is based in the firm’s Birmingham, Alabama office. Mr. Pattillo represents numerous commercial and personal insurers in matters involving bad faith, extra-contractual exposure, coverage litigation, and a variety of declaratory judgment actions. He also works closely with large SIU investigations on fraud-related matters. Mr. Pattillo focuses exclusively on litigation and trial work. He has a twenty-year trial record in the courtroom that is extensive and successful, including numerous seven and eight-figure exposures with results routinely exceeding client expectations.

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