The Nuclear Verdict blog series
Part II - Causative factors
In part 1 of our nuclear verdicts series, we covered an overview of the definition of a nuclear verdict, some historical context, and the first of the five causative factors of nuclear verdicts. In part 2, we continue with the next two causative factors: egregious conduct and punitive (stealth) jurors.
The kind of conduct that enrages jurors may either inflate punitive damage awards or blur the line between them and compensatory damages. As in the 1999 case in which $296 million was awarded for the death of a teenage girl in a North Texas pipeline explosion, jurors can, and often do, drastically increase compensatory awards as a means to “send a message.” The infamous McDonald’s hot coffee case in 1994 had the same inflammatory ingredients – while the vast majority of the lay public (i.e., from our focus groups) appears to hold the position that the nearly $3 million verdict was outrageous, most people are unaware of the facts that:
§ The McDonald’s Quality Assurance Manager testified that the serving temperature of 180-190 degrees would burn the mouth and throat;
§ burn experts testified that the temperature would produce third-degree burns within 3-7 seconds;
§ over 700 reports of injury had been lodged by customers with no response by the company;
§ the plaintiff was elderly, suffered burns in the inner thigh and genital area, and required multiple skin grafts to recover;
was suggested to the jury that the stores resisted lowering the temperature
because higher temperatures created an attractive
coffee smell that would waft through the premises and increase sales (McDonald’s witnesses could not proffer an explanation as to
why the temperature was never reduced);
§ the defense took a strategically ineffective position of blaming the victim – an elderly woman.
We have dozens of cases in our files in which corporate defendants engaged in conduct that was ill-advised or inflammatory, and where accounts of which eventually made their way into the trial, creating highly inflated awards. More details on these fact scenarios may be found in Speckart, G. and McLennan, L., “Excessive damages awards and tactics for containment,” 2002, For the Defense, vol. 44.
Punitive (stealth) jurors
Most of the current explanations for the “nuclear verdicts” proffered by litigators and experts in the field tend to focus on disenfranchised, alienated, or otherwise “fed up” jurors who are unleashing their angst against defendants. In the early 1990’s, following the Exxon Valdez case, one of the present authors coined the term “stealth juror” describing the individual who attempts to “fly in under the radar, concealing bias while professing neutrality” (Speckart, G. “To down a stealth juror, strike first,” National Law Journal, 1996, vol. 19). However, this is simply one class of punitive jurors that may be present in high profile cases, and does not cover those jurors who, for example, merely (perhaps “merely” is not the best word here!) wish to create a redistribution of wealth after reading about CEO pay, golden parachutes, and the like.
During jury selection, the overwhelming majority of jurors say that they will put sympathy aside during the trial, then proceed to award high money damages to the plaintiff during deliberations. In post-trial interviews, these jurors commonly admit that sympathy drove their decision-making, despite their earlier assurance that they would put sympathy aside. In reality, jurors who express strong intentions to follow the law often fail to act on them during deliberations because the emotional aspects of the case are overpowering. This scenario is every defense attorney’s nightmare, as often even the most well-intentioned voir dire efforts are not enough to prevent sympathy from trumping the law. Years of psychology research has shown that the correlation between intentions and behavior is modest at best. Meta-analyses have revealed that intentions only account for approximately 30% of the variance in social behavior.
These findings suggest that defense attorneys need to go well beyond assessment of a juror’s intentions to determine whether or not a juror is capable of following the law with regard to sympathy. Since sympathy is such a powerful factor in jury decision-making, defense attorneys need a more sophisticated procedure, such as a scientifically designed Supplemental Juror Questionnaire (SJQ), to assess jurors in jury selection (for more details, see Speckart, G. “How to tap the potential of the juror questionnaire,” The Practical Litigator, 1999, vol. 10; and Kanasky, W. F. “Assessing sympathy in voir dire: Exploring jurors’ intention-behavior gap,” Voir Dire, 2018, vol. 60).
Despite the considerable tactical potential of the SJQ, however, we routinely see such questionnaires on the eve of trial that are packed with items backed by no predictive validity rationale whatsoever – that is, there is no scientific basis for inferring that the questionnaire items differentiate favorable versus unfavorable jurors. Instead, questions are included because they “seem reasonable.” Additionally, items are included with improper scale construction and other psychometric properties that make them essentially useless from the perspective of proper psychological measurement. This is not an arcane exercise in scientific snobbery but rather a genuine pragmatic issue: If a questionnaire item reads “Have you, a family member or friend ever been unfairly terminated from a job?” and the response options are “Yes” and “No,” one still has no idea who has had the experience.
The entire area of SJQ
construction; voir dire; and jury selection strategy generally is one
that is often relegated to a subservient position in trial preparation with post
hoc rationales and tactics that are left to the last minute – usually as a
consequence of the fact that juror profiles are not scientifically-derived, but
rather “intuited” – leading to less than optimal, and sometimes disastrous,
results (Speckart, G. “Identifying the plaintiff juror,” For the Defense,
2000, vol. 42).
Juror Confirmation Bias