Are millennials to blame for nuclear verdicts?
Nuclear verdicts are causing concern for defense counsel and insurers. The American Transportation Research Institute (ATRI) evaluated verdicts of over $1 million against defendants in the trucking industry and found that the average verdict increased from just over $2 million in 2010 to more than $22 million in 2018[i]. ATRI controlled for inflation and rising healthcare costs and still found that jury damages were increasing well above the expected rate. In several other areas of litigation, the number of nuclear verdicts has not increased, but the amount of money that jurors have awarded has increased significantly[ii]. According to TopVerdict.com, the top verdicts in the U.S. in 2012 and 2013 were just over $1 billion each year; while the top verdict in 2019 was $8 billion.
Some insurers and defense counsel have proposed that one factor influencing nuclear verdicts is that younger generations do not value money in the same way that older generations do. Of course, it is likely that each generation, as they age, believes the younger generation does not value money as they should. At the same time, we found it worth testing this hypothesis and determining, scientifically, whether one generation is statistically more likely to award higher damages than another. The present authors collected data from 1,100 jury eligible individuals who served as mock jurors in personal injury matters during 2020.
First, the data were analyzed to determine whether one generation was any more likely than the others to find for the plaintiff in a personal injury lawsuit. The results showed that 61% of Baby Boomers, 56% of Generation X jurors and 53% of Millennial jurors favored the plaintiff. Thus, Millennial jurors were no more likely to find for the plaintiff than the other generations. The difference across generations here is also not a large enough difference for the conclusion that Baby Boomers are most risky for the defense. Generation alone is not likely to predict a juror’s leaning toward the plaintiff or the defense.
Next, an analysis of damages was performed. Because high damages in one case could be considered low damages in another (depending on case type, extent of injuries, etc.), the jurors’ individual damage determinations were standardized by case, by converting the numbers to z-scores. Damages were then assessed across cases and a comparison of damages by generation was performed. The results of the analysis revealed that there was no statistically significant difference in damages when comparing generations. Thus, Millennials cannot be blamed for recent nuclear verdicts. This finding should actually be a relief given Millennials make-up nearly a quarter of the population. Thus, if you tried to strike all Millennials during voir dire, you would need more peremptory challenges than are typically allowed!
Given generation alone is not predictive of verdicts, additional analyses were performed on variables we expected to actually have some predictive utility. Importantly, the jurors in the present sample all participated in jury research during the COVID-19 pandemic. Prior to the pandemic, Courtroom Sciences' consultants have advised defense counsel to identify jurors who are under stress, as those jurors are more likely to side with someone who has a complaint. For example, individuals who have recently lost a loved one, changed jobs, or experienced divorce, especially if they have been coping with multiple such stressors, should be identified for strikes during jury selection. During COVID, many jurors were experiencing stress due to the pandemic. We expected that jurors under greater stress may have been willing to award higher damages.
Mock jurors in the sample had indicated their level of concern with several COVID-related stressors. Jurors who reported greater concerns with the ability to pay bills, concerns with job security, the risk of getting sick from COVID-19 and the difficulty of having to social distance for a long time awarded higher compensatory and punitive damages during mock trials. Therefore, during jury selection, it is much more effective to identify jurors who are experiencing high levels of stress than to make strikes based on an assumption that one generation has a tendency to award higher damages than another.
It should be noted, though, that some of the concerns related to COVID-19, such as difficulty paying bills and job security, affected more of the Millennial jurors than their older peers. Millennials were likely to have been more recently hired into their jobs than Generation X or Baby Boomers (many of whom are retiring). Thus, when companies were forced to downsize during the pandemic, the Millennials were often first to be let go, contributing to their stress. Defense counsel with a greater understanding of the types of stressors likely to be affecting each generation will be better prepared to uncover those stressors and identify risky jurors during jury selection.
The findings support what Courtroom Sciences' consultants have been preaching for decades - that demographics (e.g., gender, race, generation) are much less predictive of verdict than attitudinal and experiential factors. As Americans move toward the post-COVID era, defense counsel is advised to stay current on stressors affecting jurors of each generation and inquire about those stressors during jury selection. Then, use these predictive factors to identify the most risky jurors for strikes.
[i]American Transportation Research Institute. (2020). Understanding the Impact of Nuclear Verdicts on the Trucking Industry. Retrieved from: ATRI-Understanding-the-Impact-of-Nuclear-Verdicts-on-the-Trucking-Industry-06-2020-2.pdf (truckingresearch.org)
[ii]Daly, A., & Mandel, C. (2020). Liability Litigation Trends and Practices. Sedgwick Institute. Retrieved from Sedgwick-Institute_Liability-White-Paper_052620.pdf
Juror Confirmation Bias