By Robert F. Tyson | February, 2020
Nuclear Age - Combatting The Growing Problem Of Runaway Jury Verdicts - Schaefer City
In October 2019, a Philadelphia jury delivered an $8 billion verdict against Johnson &Johnson for its improper marketing of the anti psychotic drug Risperdal as a treatment for some mental-health disorders in children. The enormous punitive damages award-in a case where compensatory damages were less than $1 million-was not an anomaly.
In May 2019, a California jury issued a $2 billion verdict against Monsanto after finding that its Roundup weed killer caused a couple's cancer. Though the Monsanto verdict was later slashed significantly by a judge, the initial award was yet another striking example of the type of runaway jury verdicts that are becoming commonplace across the nation.
This trend is a major problem for corporate America and the attorneys who defend claims brought against businesses large and small. This very real issue is not going away anytime soon and is much broader than just the highprofile cases that make it to trial and get reported in mainstream media.
What Has Changed?
hese increasingly large verdicts raise an important question: What has changed to spark such outsized jury awards? The answer is the plaintiffs' bai:
Over the last 10 or 15 years, the plaintiffs' bar has completely changed how they try lawsuits in front of a jury. They have studied psychology and applied it to their jury trials, and they share these new methods with each other constantly. For instance, previously, plaintiffs' lawyers would seek the jury's sympathy in hopes of obtaining a large verdict. In many cases, they would not even put forward a damages number that they were seeking. However, things have changed rapidly on both fronts.
Now, the plaintiffs' bar has realized that tapping into a jury's anger is a much more effective approach at trial than appealing to sympathy. In recent years, plaintiffs' attorneys have primarily leveraged the so-called "reptile theory," which involves utilizing strategies to spark the fight-or-flight mentality among jurors, which pushes them to decide cases based on their emotions rather than the facts in play.
Plaintiffs' attorneys often generate such strong feelings among juries by repeatedly attacking the corporate defendant and portraying them as only caring about profits. In turn, this type of offensive against a defendant can prompt an emotional reaction from jurors when they are trying to reach a verdict or determine the amount of damages to a ward plaintiffs.
Plaintiffs' attorneys also have begun asking juries for astronomical awards instead of hoping that they will reach an outsized figure on their own. While both sides used to shy away from addressing money in a jury trial, plaintiffs' attorneys have discovered that the best way to get a big verdict is to ask for it.
How Have You Changed?
Now we know how the plaintiffs' attorneys have changed. But what has the defense industry done to counteract these evolving approaches? The answer is, little to nothing.
Stop for a moment and think: How have you or your defense counsel tried cases in the last 10 years? What are you doing differently? Anything? From my experience, the defense industry has continued to use the same traditional strategies of fighting liability at all costs, avoiding the worst facts of their cases, and hoping that the jury does not reach the issue of damages.
While there is comfort in the status quo, it is a very dangerous place to stay and can result in Nuclear Verdicts®. Plaintiffs' attorneys are counting on the defense to do nothing differently at trial. They have created a whole new approach to jury trials that assumes the defense will continue to do the same things it always has. So far, they have been right.
Therefore, it is time for the defense industry to change its approach to jury trials and adopt new strategies to reduce Nuclear Verdicts®, and insurance carriers should demand that they do so. Here are a few key tools all defense lawyers can implement; we will delve into these in more detail throughout 2020.
CERTAINLY, WE KNOW THAT PLAINTIFFS LAWVERS WILL BE SPEAKING ABOUT DAMAGES FROM START TO FINISH AT A TRIAL, SO DEFENSE COUNSEL SHOULD DO THE SAME.
Take Responsibility
This recommendation may be anathema to many corporate defense lawyers, but it is wise for the defense to accept responsibility for something. However, this does not mean admitting full liability, or even any liability, for that matter.
For example, the defense can accept responsibility for its employee-training practices, following traffic laws, or putting a safe product into the stream of commerce. While the type of responsibility will vary depending on the facts in play, some semblance of this approach must be implemented in every trial.
When done properly, accepting responsibility for something makes the defense look like the most reasonable party in the room and defuses the type of anger that typically results in large jury verdicts.
Give A Number
Defense lawyers also may be reluctant to provide the jury with a damages number, especially when fighting liability. However, it has proven to be a helpful strategy amid the changing legal landscape. Certainly, we know that plaintiffs' lawyers will be speaking about damages from start to finish at a trial, so defense counsel should do the same.
However, a number can be presented while still seeking a defense verdict for your client on the merits. In fact, there is a law review study that found a jury is more likely to give a defense verdict when the defense gives a number. But if the jury does find the defendant liable, having provided them with a defense figure can significantly reduce the ultimate jury award.
Personalize The Corporate Defendant
Too often, defense attorneys have allowed plaintiffs' lawyers to paint a horrible picture of a corporate defendant without presenting an alternative view. Therefore, it behooves defense lawyers to try and humanize a corporate client by telling the jury the company's backstory, including meaningful details about the people who make up the corporation. Personalizing the corporate defendant also involves highlighting the company's standing in the community and its values. This approach, which should be used throughout a trial, can help defuse juror anger and raise the likelihood of a defense verdict.
Argue Non-economic Damages
What is the number-one way the defense argues non-economic damages in a runaway jury verdict? They don't! Typically, the largest component of any runaway jury verdict is non-economic or general damages, more colloquially referred to as "pain and suffering." This can be a sensitive subject for the defense to raise at trial, but counsel should not be afraid to broach the topic. In coming articles, strategies will be provided on how exactly the defense should argue non-economic damages. This could be career changing. To quote "Seinfeld,"
"That's gold Jerry! Gold!"
Nuclear Verdicts® are real, and they are increasing. The good news is that you can do something about it. We'll give you the tools in 2020 to do just that.
Robert F. Tyson Jr.