Episode #31 – Dr. George Speckart on nuclear verdicts and settlements

This video episode of The Litigation Psychology Podcast features Dr. Bill Kanasky and Dr. George Speckart discussing the hot topic of nuclear verdicts and nuclear settlements. Dr. Kanasky and Dr. Speckart wrote an extensive article on the nuclear verdict phenomenon and talk about their insights and analysis.

Full Episode Transcript

[00:04] Bill Another edition of our Litigation Psychology Podcast, video version again, welcoming Dr. George Speckart. George, how are things in Dallas?

[00:13] George Pretty good, actually. Weather’s nice this time of year.

[00:19] Bill Excellent. Uh, you can see the Orlando, Florida backdrop. I actually had to put on a little, little sweater today, got a little chilly, but I’m—oh, I’m totally okay with that.

[00:31] George I think the East Coast is gonna get colder next couple days.

[00:35] Bill Yeah, and I know what’s coming this summer and then the hurricane—between COVID, hurricanes, I mean, that’s welcome to Florida. What we want to do on today’s podcast was talk about the whole nuclear verdict concept. You and I have authored a paper on this, we have done a CLE webinar for DRI, and we want to get the word out and do more of these for law firms and corporations. So the purpose of this podcast is to kind of give our audience a little taste of what they would get in the 90-minute CLE. And you have identified pretty much five key factors when it comes to nuclear verdicts. But before we get into that, can you talk a little bit about your career? The nuclear verdict issue is nothing new, correct? This is something that’s been around for a long time, right?

[01:25] George In fact, that’s why we entitled the article “Old Wine, New Bottles.” It’s a—it’s an obstacle or a challenge that’s been around for quite a while. Maybe even going back to the 1984 Pennzoil-Texaco ten billion dollar verdict. There are a number of huge verdicts in the late 90s, hundreds of millions of dollars for just business disputes or just a single, single death. Those things have been around for a while, but the nuclear verdict is just a new term. They used to call it “runaway jury.”

[02:03] Bill Yeah, they made a movie about it, correct? Right. So let’s kind of talk about these, these factors that you have studied for 30-something years now as really reliable predictors of nuclear verdicts. And the first one, which to me is dear to my heart, uh, problematic witnesses. Talk a little about—take a minute to talk about how witness testimony can really lead to big, big problems in the deliberation room if it does not come across as credible and effective.

[02:42] George And you know, because both of us work in the same industry and are confronted with the same challenges when we work with clients, I think the witness problem is something that’s near and dear to both of our hearts because I keep running into the same issues that you do. And the thing that comes to mind most readily is problematic depositions. On videotape, or—and maybe even not, but yeah, videotape you get all the problems with nonverbal behavior, which is a whole ‘nother can of worms. But even—even without the videotape, I had a class action race discrimination case once where, you know, a high-ranking executive of the company said that the n-word could be a term of endearment, and that was in his deposition. You know, and what happens when you do stupid things like that is you’re handcuffed on a freight train to hell and you can’t get off. You know, because those—you’re married to those statements forever. You know, that they’re in the record and you can’t get rid of them.

[03:48] Bill Tell the audience about how when you were a younger consultant at your first company and your marketing pitch was that, you know, hey, jurors are making decisions after opening statements. And some of the research you did to find out well, maybe that’s not so true. When are these jurors really making their decisions, George?

[04:10] George Yeah, that’s one of my favorite war stories. But this is a—I was young in my career in 1983 working for Litigation Sciences, which is no longer around. But the CEO—the two CEOs there were from marketing division of USC, and so they were very clever at marketing. And they came up with the adage that jurors make up their minds after opening statements, which went through the litigation community like a tsunami. Everybody started talking about that. “Wow, jurors make up their minds after opening statements? Oh my god,” you know. Of course, I think the reason that was—that adage was created was so that, you know, they could sell research just based on showing opening statements and say that that will give you the results that a real trial will give you. Another problem but we can talk about there in research design anyway. So I started interviewing jurors and conducting post-trial juror interviews. Now those are the gold standard of validity. That’s—that’s how you know what jurors are really doing. You talk to ’em and ask ’em what did you—what happened, how did it go? You know, the jurors started telling me, when in response to the question “When did you make up your mind?”, they started telling me, “We made up our minds while watching the witnesses.” And I had to go back to my boss and say, “Hey, what are we gonna do? Because we’re telling clients jurors make up their minds after opening statements, but the jurors are telling me that they made up their minds while watching the witnesses.” And he said, “Well, just take that out of the report.” Yeah, but that—that’s what really started thinking seriously about where is the nexus here between personal characteristics of jurors and verdict damages dispositions? And—and at Courtroom Sciences, where we are now, we created what we call a cognitive map, which is how jurors actually decide cases irrespective of the type of case. And the first thing they do is they look at the litigants, you know, not the lawyers but the litigants. And they say, “Who are these guys? You know, what are they made of?  What kind of stuff are they made of? You know, are they likable, trustworthy, honest?” And they kind of sniff them like dogs. It’s very primitive, a lot of it based on nonverbal behavior. And everything stems from that, everything comes from that one initial decision: who are these guys?

[06:28] Bill So to avoid nuclear verdicts, make sure your witnesses are well-trained. Fair enough?

[06:36] George Yeah, and not only that, I really as I look at the services we offer and the things that we do, I think it’s almost patently obvious that the most bang for the buck, the—the most value that—that we create is in wit—witness training. I think that’s the—the best spent money that anyone can—can spend to prepare.

[07:01] Bill I totally agree. And even if you have a decent set of case facts, if you have bad witnesses, things are not going to end well for you. Let’s get to point number two in your model here: egregious conduct. Yeah, I mean there are some really key examples here of where, you know, if a company does something really bad and that’s presented to the jurors, it’s gonna create a lot of anger, correct?

[07:34] George Yeah, you know another term that litigators use for that construct is “bad paper.” You know, you’ve—you know, emails or—or it can just be things that people do—you know, there are whole companies that are set up just to train corporations for avoiding these kinds of mistakes. You know, but for example, we had a case where a boxcar broke loose and rolled down the track and crushed this guy to death. And an official for the company went over to the widow’s house on the same day and said to her, “We’d be willing to pay for the funeral if it’s not too expensive.” You know, just stupid things that people do, you know, that jurors pick up on and they get angry.

[08:21] Bill Yeah, and so yeah, corporate conduct has always been an issue, but I could see that leading to a nuclear verdict. Number three, the whole concept of punitive jurors. And you came up—I believe you came up with this term, the—the stealth juror. Talk about how, particularly through voir dire and jury selection, how you can—you can have punitive jurors slip through the cracks and create chaos in the deliberation room.

[08:52] George Yeah, this is where you can’t cannot avoid talking about science because the entire jury selection process is an exercise in prediction of behavior. And prediction of behavior is the highest level of scientific achievement. You know, if you remember from your high school classes, Newton sitting under the apple tree, you’ve got observation, hypothesis, theory, and then from theory you go to prediction. And that’s where you test your theory to see if it—if it holds. A lot of the times, most of the time in jury selection, we see juror questionnaires that have just slapped together with items that quote-unquote “look good,” but they haven’t been tested or vetted for scientific validity in terms of their ability to predict verdict orientation. We wrote an article called “To Catch a Stealth Juror, Use Science.” It’s from 1996 National Law Journal. And the way to do it, Bill, is to look at discrepancies between verbal behavior in oral voir dire and written behavior in the juror questionnaire and see where people are kind of fudging a little bit and then probe those areas. It’s—it’s a big problem, particularly with high-level conspicuous corporations or high-level conduct that makes it to media coverage.

[10:22] Bill Yeah, I was working on a case where I was preparing a key witness and I said, “Hey, do you need my help with, you know, consultation for during jury selection?” And I kid you not, George, this attorney looked right at me, he goes, “Hey, I bring my—my wife sits in the front row, she can read anybody, and she’s my—she’s my jury consultant on how to pick the jury.” I kid you not. This is a true story. Can you talk about some of the things you’ve seen with particularly defense attorneys using hunches, crystal balls, horoscopes, whatever in the jury selection process that is so unscientific, that maybe they’re very comfortable with because that’s the way they’ve always done it?

[11:14] George Let me tell you the thing that drives me crazy. I’m in jury selection and working with the trial team, right? And the lawyers are saying after voir dire, you know, after we’ve observed the jurors, and then they’ll say, “I like that guy.” Yeah, that’s great that you like him, you know, but how’s he gonna vote? And a lot of the most plaintiff-oriented jurors are what we call “amiables.” They’re very sociable, they’re very sweet people, you know, but they operate from their gut and their feelings. And you—you may want them around for a drink, but you don’t want them on your jury.

[11:45] Bill That’s a really good point. Point number four: judicial hellholes. Now, we’ve talked a lot about on these podcasts and some articles about COVID-19, and we’re gonna do a separate podcast on that following this, George. But you know, the trucking industry is getting some really positive PR, the healthcare industry. And a lot—I think a lot of people are assuming, “Hey, that’s gonna carry over into trials,” and maybe the trucking industry and the healthcare industry may benefit. But I think with some of these judicial hellholes—and I’d love you to rattle them off—I’m not sure if anything is going to change jury decision-making in Philadelphia, Memphis. I mean, what are your thoughts on judicial hellholes and are they going to continue to be hellholes post-COVID-19?

[12:43] George Yeah, basically to cover the COVID-19 issue just in a nutshell, I have very good reason to believe that things will get worse in terms of punitive dispositions, in terms of nuclear verdicts, and we’ll go into detail as to why that is. Obviously, you can’t have a scientific design to test this because you’d have to have the same case before and after COVID-19 and compare the damages, so it’s always going to be somebody’s opinion. But we could certainly discuss the reasons for those opinions. But judicial hellholes—you know, it was originally brought up by the American Tort Reform Association back around 2000 or so, 2001. And this again shows you how long this—this problem of nuclear verdicts has been around. But there are different kinds of judicial hellholes, and it refers not only to the jurors but to the the bench as well. Because according to the Tort Reform Association—a lot of these venues are—have these judges who kind of grease the skids on—on this—these high damage verdicts and are really conducive to the plaintiffs’ cause, really helpful to the plaintiff cause. But there are different kinds, like you’ve got the Rio Grande Valley down in Southern Texas where people are all sweet and nice and they just give you what you asked for. And that’s—you know, they don’t even listen to the defense, they just want to know how much you want. Go up to Philadelphia and Baltimore and it’s like walking into a hornet’s nest. So, you know, it’s a completely different dynamic but the same result.

[14:16] Bill Yeah, crazy, crazy stuff. So you gotta watch out where—where your venue is. And finally, you know, point number five, which—this is the controversial one and I tend to think we get in trouble when we bring this up, but Bob Tyson’s book—just brought it up on my podcast yesterday, and he has a whole chapter, I think, in his book, his nuclear verdict book, is this: the whole notion that the plaintiffs’ bar is really just out-working the defense bar. They’re getting—

[14:53] George Out-hustling, out-innovating. We—we wrote an article on this called “Streetwise Litigation” in Litigation Magazine, it’s in Summer of 2003 issue, and then it was included and one as one of the best articles of the year in ABA anthology. Where we got in trouble was with the judges. Judges didn’t really like us telling lawyers things like, “You—the line can only be fine—found by crossing it.” You know? Yeah, or “Unless I’m told it’s against the rules, it’s not against the rules.” But let me just give you an example of how this works. I was in a trial in Baltimore once and the plaintiff attorneys were taking videotapes of witnesses from that same trial and using those videotapes to impeach other witnesses. And I asked our trial team, “Hey, where are they getting these videotapes and maybe we should do this too?” And they said, “I don’t know how they’re getting those tapes, I don’t know where they’re doing that, how they’re doing this.” How did we get out-hustled like that? You know, or it is just the—the war stories are endless. The crazy weird things that the plaintiff attorneys do to capture the hearts and minds of jurors is just mind-blowing. And we could do a whole podcast on this

[16:08] Bill Yeah, and in—and particularly with the reptile tactics being used and what they’re getting away with. This—survey particularly in, you know, California, which you’re originally from and you’ve done a lot of work out there, I’ve seen crazy, crazy things that particularly at, you know, asking for a hundred and fifty million dollars in the second sentence of your opening statement. I mean, that was just unheard of at a time, and now this is—this is happening all over because it’s working and they can—they can get away with it. Can you talk to us a little bit about how you’ve seen the plaintiffs’ bar handle the whole topic of damages, because the defense bar does not want to talk about damages. They’re all—right, you don’t talk about money till the end. But they’re talking about it in voir dire.

[16:58] George Yeah, and what they’re doing is exploiting an inherent conservatism that they see in that defense bar, because the defense attorneys seem for some reason to be just more conservative and—and more reluctant to use extreme tactics. It could be they’re trying to protect a client relationship, you know. Plaintiffs don’t have to protect a client relationship. There’s all kinds of issues that—that can encumber defense lawyers that plaintiff attorneys just don’t need to worry about.

[17:32] Bill Well, George, thank you so much for being on this podcast. Ladies and gentlemen, if you’d like to contact us at Courtroom Sciences, and George and I will get on Zoom or WebEx and do our nuclear verdict CLE, roughly 90 minutes of really great information on how to protect yourselves. We’d be happy to do that. George, thank you very much.

[17:54] George Thank you.