Episode #24 – COVID-19, juries, and nuclear verdicts

This video episode of The Litigation Psychology Podcast features an interview with Liz Skane, Partner with Skane Wilcox. Liz and Dr. Bill Kanasky discuss the impact of COVID-19 on litigation and juries and the continued presence of reptile in litigation and its effect on nuclear verdicts. Liz and Bill also talk about the exposure companies are creating for themselves with their COVID-19 messaging, plus their experiences with CA judges.

Full Episode Transcript

[0:04] Bill Litigation Psychology Podcast brought to you by Courtroom Sciences. I’m Dr. Bill Kanasky here with one of my favorite trial attorneys in the world, Liz Skane from San Diego, California. Liz, how are things in San Diego with COVID-19 running rapid? Are you guys opening up a little bit or is it still kind of crazy?

[0:25] Liz Well you know, I mean California is a huge state obviously. So San Diego is a little bit different than perhaps some of the other counties. You know, our mayor has been pushing the governor to last San Diego a little bit more autonomy to open up. Our curve has been passed flattened and I think you seem to be doing pretty well, but it’s it’s still craziness. I mean, never in my life would I have ever expected to see what I see people everywhere I go. People are wearing masks. There’s there’s a you know, lines at Costco. There’s there’s no still no toilet paper. You know, there’s can’t get a delivery for any groceries to save your life.

[1:10] Bill Crazy times. I’m gonna jump to my last question first because I think what you just said is a perfect segue is all the people you’re describing are potential jurors. Usually the multi-million dollar question everybody wants the answer to, and that we’re working on very hard and it’s going to be very region by region, but what are your thoughts on how the COVID-19 epidemic may impact jury decision-making? I’ve heard this from multiple angles. I’ve heard it’s going to get worse for defendants because jurors have been through a lot; they’ll likely be emotional. A lot of people were unemployed or laid off or furloughed. On the other hand, I’ve heard well, maybe if someone’s bring in a soft tissue claim against the company on a slip and fall, maybe there’s gonna be this horrible lack of sympathy from the jury. What are some of your thoughts on this because I’m sure your firm’s thought about this and had discussions?

[2:09] Liz Yeah you know, I I think it depends on… I still think the juries are gonna be determined in large part by where you are. I mean, you and I both know because we’ve done we’ve done a trial together actually like the last one I did was with Mary who was amazing with your company. But you know, if you want to try a case in California, you’re gonna want to try it in San Diego County. That’s the truth. And because our jurors are typically super duper cheap juries and they’re very very smart juries too. I think the one that I did with Mary, we had what nine nine all twelve I think were college-educated and we had nine that had master’s degrees. So, but I tend to think that it’s really gonna go more in favor of defendants. I think that the world is certainly… I think of it now, I mean I think of going through this crisis myself and thinking, oh my gosh, this puts everything in perspective. I mean, look at what we’re dealing with, and what we’re dealing with right now makes everybody else’s minor gripes and concerns seem so much more trivial.

That’s one side of it, but you and I both know from having read a lot of the books—I’ve read all the books and I urge all the lawyers that ever litigate to read these books by plaintiffs—you know, you’ve talked about it, you and I have talked about it quite a bit. You know, whereas sometimes the science might be off, right? But but their their tactics work. And I think the the reason that is important is because you have to understand their mindset. And one of the big things that they love to harp on is this sense that not just so much of injury, massive injury giving sympathy, but on the concept of loneliness and isolation, right? I mean, that’s one big big topic in a lot of the books because I think they’ve done—and you can probably talk more about that—but they’ve done a lot of research from what I understand to show that that jury or juries are going to want to give people more money because they they understand and sympathize with this idea of loneliness and isolation. People’s injuries make them lonely and isolated. And now you’re gonna have a lot more people who can understand that concept of loneliness and isolation, because they’re living it. I mean, they’re all living it. We’re all going crazy. So that may be against us, right?

[4:41] Bill Yeah and that loneliness and isolation cuts across all races, all demographics, all socio-economic statuses. That’s a really good point. Now Liz, like myself—and we’ve given several speeches together—you are a prolific speaker. A lot on reptile theory and I know you got one coming up on nuclear verdicts. So two topics dear to my heart. Kind of give us the reptile updates because this continues to be a vicious battle regardless of what region you are in. Have you seen an uptick or a downtick in reptile and maybe how COVID-19 does that kind of help the plaintiff reptile theory going forward?

[5:27] Liz Yeah, I think um no, there has been an uptick certainly. But I think what we’re seeing—and you could probably I’m sure you’ve seen the same thing—is there’s a lot of people who know how reptile works now, much more so on the defense side than ever before. Now you know, I remember when you and I first started talking on this subject and the first time I ever saw you speak I thought, oh my god, this guy, this is amazing. And then I got addicted to the topic and read up about it and use their own tactics in my own trials, which is just brilliant. But um I think that that now the defense bar is familiar with it, right? Because everybody’s talking on it now, although a lot of people still are talking on there don’t really understand it.

But that’s a… the plaintiffs bar, there’s a lot of people who know about it but there aren’t very many people who actually do it very effectively.

 [6:14] Bill They stumbled over it.

[6:17] Liz They have to do it. There are only that I can think of plaintiffs that I’ve been involved in cases, but there’s only truly a handful of them that are really really proficient and very very good at it. So there’s a lot more people to try it and and if you try it and you don’t do it properly, it backfires against you, right? I think I just experienced that not too long ago where you and I ended up with my fastest verdict ever, 12 minutes the jury deliberated, because the tactics backfired. I called them out on it.

But I will say this too is is the insurance industry, which is notoriously slow, and the defense bar is notorious slow, they get it now too. In fact, um you know talking some top-level insurance executives, they’re all talking about it now. I mean all the heads of companies, CEOs, chief claims officers, they’re meeting and talking about these reptile and nuclear verdicts, which truthfully they they go hand in hand, right? I mean the nuclear verdicts are caused by people who really really blew it at the reptile style of litigation, right? So they’re they’re now very much paying attention to it, all the companies are, and they’re trying to come up with reasons and an understanding about why these huge verdicts continue to happen. And I think that’s a good thing. As far as how that plays into COVID-19, I think COVID-19 will… who knows? I mean, I think in some ways as we’ve discussed it’ll it’ll it’ll benefit the plaintiffs, in other ways it will hurt them. I think for those who don’t know how to do it right, it’s going to hurt them. For those who know how to do it really well, it’s gonna help them.

[7:56] Bill Well, for the insurance defense industry to take 11 years to catch up with this, I guess that’s not a shocker. Another question and I’ve talked to several guests about this between commercials, a lot of emails, things being posted on corporate websites. There’s a lot of companies coming out essentially saying hey, you know, we’re gonna guarantee and ensure your health and safety going forward. And I don’t think that this has been well thought out because I mean I get these emails every day and I’m thinking if a plaintiff attorney gets this email, that’s Exhibit A in your reptile case, isn’t it?

[8:36] Liz Oh, I had a case where you know ultimately I ended up settling it, but I took it right up to the courthouse steps because there was some really powerful witness testimony on on the, you know, on the videos, video recorded as a lot of them do. And they they’re pulling out, you know, they’re showing screenshots from the company’s website where they say exactly that. And and that’s why you know, when I prepped these witnesses, I said listen you guys, you have to be aware of everything you put out there, right? The plaintiffs bar is notoriously good at talking to one another. They’re notoriously good. And they share information. We don’t do that on the defense side of things, and we really ought to, truth be told. But we don’t. But they share information. So if you’ve got some email or a letter or something out there, every good plaintiff’s lawyer out there has it. And you’re gonna see it in trial and you’re gonna see it in deposition. So there’s got to be a lot more forethought in putting this stuff out there especially when they use, like you you said, these key words like “safety,” right? I mean jeez, that is exhibit one, highlighted, blown up on the screen. What are you gonna do with it then?

[9:47] Bill You know in commercials it’s always the first sentence and I swear they they copy it off of each other. It’s it’s… I don’t care what it could be, Hilton, it could be Delta, it could be Southwest, it could be a food service, and they all go to the same thing first response like hey, we got to say the right thing here to keep people calm. And are not really looking at litigation going forward. Well Liz, how are how are California judges? Because they’ve been notorious for not under… but then I saw some changes, particularly in LA with a couple of judges putting high-profile reptile attorneys in their place. Has what’s the defense bar’s effort to educate the bench on reptile?

[10:34] Liz You know like anywhere it works with some, it doesn’t work with others. I will tell you that and this is something you and I should definitely talk about in one of our next things, the next talks if we get to give another presentation together is I not long ago had a trial where I was getting ready to argue motions in limine because a lot of this stuff to deal with you know, the reptile taxes, you got to bring them up in motions in limine. And one of the things obviously good plaintiffs lawyers do is they use the voir dire process to start introducing those terms and introducing numbers and once the numbers out there, then they’re stuck to it and then they repeated throughout trial. So you know, they throw out a number in voir dire, right, rather than in opening statements and then it just sticks there.

So they talked about 10 million there, 40 million in voir dire, and then they managed to eliminate those jurors let’s say that that you know, for cause, saying that there’s no way they could you know give a a verdict of 40 million dollars to a woman who had a broken arm, right? So that’s the same juror and all of a sudden she’s she’s being kicked for cause, so you’re going in you know with the deck stacked against you. But I have now had judges where I will tell them that that’s happened. Last time, the last last trial before that, I had a motion in limine to prevent a mini opening. Right, the mini openings which are the you know four five less than five minutes, two or three minutes overview of the case before voir dire. And that’s where they use the time to talk about the basics to introduce these terms and introduce numbers.

And the judge said… I said you know what they do, what these plaintiffs lawyers do is they do and I start to tell them what they do, and the judge says “I know very well what they do.” And and he looks right at the plaintiffs lawyer and he says, “You will not be giving a mini opening in this case,” even though there is a California rule of court that says they’re fatal. So there are some that are catching on and there are quite a few of them. I mean you know, the case that I did with Mary of your company, he was very very much familiar with the process and he was with us the whole way along. I mean we objected and he would strike portions of the testimony that refer to community and community values and all those things we talked about because he was from California. Not so much I think they really seemed to be getting it in an LA down south. I’ve had a couple more Northern California judges and they have no idea what’s going on, they’ve never even heard of it. So it’s just still taking… so it’s amazing that they haven’t, but it’s still taking some time.

[12:54] Bill Well Liz, thank you so much for being on our podcast. Please keep in touch, let’s do a talk together soon. If you need a witness prepped, we are doing virtual witness preps via Zoom or WebEx. So you know, sign up at anytime. I have plenty of time to do it right here from Orlando, Florida.

[13:09] Liz Awesome, thanks so much and thanks for taking the time.