Litigation trends in 2021 - part 2
In part 1 of this topic, we covered litigation trends and developments including an increase in settlements, changing juror perceptions, the fragile state of witnesses, and considerations, risks, and opportunities around essential workers. In the final part of this topic, we dive into nuclear verdicts and settlements, Reptile attacks, and reputational risks for corporations.
Nuclear verdicts and settlements
There is much debate about the definition of a nuclear verdict or nuclear settlement. Ultimately, it’s in the eye of the beholder. If you have been hit by a verdict that hurts more than expected, that’s a nuclear verdict. If you have had to settle for more than you had anticipated - or your client had planned for - that’s a nuclear settlement. The one thing that everyone can agree on is that no defendant wants to be the victim of a nuclear verdict or settlement. But they aren’t going away.
The plaintiff’s bar continues to ratchet up their demands and the defense is consistently on their heels in fighting against these massive dollar amounts. Ridiculous figures are thrown out to the jury in opening statements and become anchored in the juror’s minds, making it difficult, if not impossible, to purge those amounts from the jury’s decision-making process. So damage awards by juries are based on the original, outrageous figure, leaving the defense at the mercy of the jury.
The transportation industry, healthcare industry, and insurance industry are all being bludgeoned by nuclear verdicts and settlements, but they don’t have to simply accept it. Suppression and control of nuclear verdicts and settlements is possible by investing in scientific research. The accuracy of scientifically derived estimates far exceeds that of the hunches and intuition typically used to value and settle cases. The cost of guessing in settling cases is not only more expensive than the research, but it is in fact far more expensive than the research when it is based on scientific method and theory. There is a way to combat nuclear verdicts and settlements via research if the defense avails itself to it.
Listen to our numerous podcasts and read our blog posts and articles on nuclear verdicts to learn more.
The “Reptile” continues its attack
The “Reptile” attack has been a huge boon to the plaintiff’s bar with over $8 billion and counting in verdicts and settlements. There’s no denying it – the “Reptile” method has been widely successful. And what should keep defense counsel up at night is that, up until this point in time, the “Reptile” method has focused almost exclusively on cases involving personal safety and care (healthcare, transportation, medical malpractice, trucking, etc.), but there is a trend developing where the “Reptile” approach is being deployed in areas broader than personal injury and death: product liability, patent infringement, and even family law. With just a slight adjustment, the safety and danger rules that are core to the “Reptile” method can be applied to questions of reasonableness, rationality, sensibility and fairness. Once this shift becomes commonplace, the “Reptile” will be fully unleashed.
Just like in nature, the only proven defense to a “Reptile” attack is preparation. In The Art of War by Sun Tzu, he writes, “If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.” Defense attorneys must prepare themselves for potential “Reptile” attacks by researching their adversary and must prepare their clients to combat a “Reptile” attack when it is unleashed. A comprehensive, neuro-cognitive witness effectiveness training with an experienced psychologist – prior to deposition - is the most effective way to prepare vulnerable witnesses for a “Reptile” attack. Without training focused on combatting the emotional, behavioral, and cognitive triggers that a “Reptile” plaintiff attorney will exploit, all witnesses – regardless of their level of fortitude or testimony experience – are susceptible to a “Reptile” attack, which will inevitably lead to a negative outcome.
Covid-19 has created more disruption than any other event in modern history. Every organization has had to adapt their business model in minor or major ways to the pandemic, leading to opportunities, but also risks and exposure. Massive amounts of litigation are expected to come out of the Coronavirus pandemic and each lawsuit is not only a potential financial hit for companies, but also could cause significant reputational damage as well. How the image of the business is managed can factor directly into how a potential jury perceives the company and how they decide in a potential case involving said company.
Litigation related to worker’s safety issues, in particular, could be devastating for a company’s reputation and public perception. Businesses with essential workers who are sued for cases of negligence or other lapses or inequities in their operations will struggle with receiving empathy from a jury that, as we established earlier, has increased their compassion for those workers. And businesses that profited during the pandemic will be judged through a very different lens than ones that struggled due to the virus. Businesses need to take public perception into account in the management of their litigation and ensure that they are managing their communications, both internal and external, in a way that considers potential future litigation and the media coverage that would be associated with those lawsuits.
The Role of Cognitive Fatigue on Witness Performance