The Nuclear Verdict blog series
Part III - Causative factors, concluded
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 provided detail on two additional causative factors: egregious conduct and punitive (stealth) jurors. In part 3, we cover the final causative factors: judicial hellholes and plaintiff attorney tactics/defense attorney conservatism.
Plaintiff attorney tactics/defense attorney conservatism
After watching dozens of jury trials to verdict, we had the distinct impression that plaintiff attorneys were more likely than defense attorneys to bend the rules in their zeal to capture the hearts and minds of the jury. There seems to be a greater conservatism among defense attorneys, along with a greater focus on protecting the record for appeal and comparatively less emphasis on winning the approval of the jury at any cost. This trend of increasing boldness on the part of plaintiff attorneys is one of several factors that have led to the staggering increase in damage awards in the last two decades. [Emphasis added]
This article, written almost twenty years ago, documents a historical trend in what was referred to at the time as “staggering verdicts.” The current label for such courtroom outcomes is “nuclear verdicts.” While many defense litigators have taken charge and fought back against plaintiff attorney aggressiveness, this factor still remains as a potential explanation for some of the large verdicts that have recently been recorded.
A more recent issue is the plaintiff bar’s current exploitation of the insurance defense industry’s system of handling files. In fact, an entire chapter of Ball and Keenan’s 2009 “Reptile” book is dedicated to teaching plaintiff attorneys how to conduct psychological warfare on both defense counsel and claims specialists. Specifically, the chapter states:
The fear button for the insurance company and the self-insured is their awareness of a strong chance of a large verdict. A substantial differential between the final defense offer and a higher jury verdict can undermine careers and make heads roll. It’s the ever-present guillotine of the profession. Their Reptiles do not like it. So start by finding out whose head is at stake. This can be tricky, but it’s essential. Ultimately, someone’s head is at stake for the decision. That’s where the fear button will be…(Chapter 16, p. 173)
Moreover, the chapter exposes the insurance defense industry’s tendency to:
§ Be reactive, not proactive;
§ Maintain a “save money at all costs” philosophy;
§ Only spend money on a case when “needed;”
§ Rarely use mock trials and focus groups in discovery; and
§ Utilize basic witness preparation techniques, rather than paying for advanced training.
Many, if not most, nuclear verdicts occur because of this faulty, reactive system that ends up surrendering vast amounts of leverage to the plaintiff attorney, all to appease their corporate executives with a cost-savings approach to litigation. As this persists, the impact of third-party litigation financing has increasingly become a thorn in the defense bar’s side.
Specifically, third parties invest in lawsuits by giving money to the parties or lawyers in exchange for an interest in the proceeds obtained in the settlement or verdict. This type of financial backing allows plaintiffs and their lawyers to spend more money than the defense in preparing their cases, while traditional defendants are more concerned about cost-savings. This financial assistance also allows plaintiff attorneys to be far riskier in the courtroom, as most, if not all, of the legal costs, will be paid by a third party, not the plaintiff’s attorney, if they end up losing.
This is one of the reasons that we are seeing excessive settlement demands – if the defendant turns it down, the plaintiff’s attorney simply does not care, and may even increase the demand. A common tactic by today’s plaintiff attorney seeking a nuclear verdict is to tell the defendant “Give me $50 million dollars by Friday, or I am raising my demand to $75 million next week. If you refuse to pay that, I will ask the jury for $150 million at trial, in opening statement.” Needless to say, these tactics, combined with the increase of nuclear verdicts, have created panic within the defense bar.
At trial, this tactic is known as “anchoring” damages. Specifically, asking for an absurd amount of money (early and often) and hoping that the defense will not give an alternative damages formula (it usually does not). Even if the defense gives an alternative number, plaintiff’s counsel is hoping that jurors will split the difference between the two numbers, which still allows a nuclear verdict to occur. As attorney Bob Tyson points out in his new book (Tyson, R. Nuclear Verdicts: Defending Justice for All. Law Dog Publishing, LLC, 2020), defense attorneys are notoriously uncomfortable talking about money damages to a jury at any time during a trial, much less repeatedly throughout a trial. Tyson’s book instructs defense attorneys to provide jurors with an alternative and reasonable number every time, which the authors of this paper wholeheartedly agree with.
Moreover, defense attorneys place themselves at great peril if they wait until closing arguments to discuss money with the jury, as plaintiff attorneys are using the psychological construct of “priming” by repeatedly: a) discussing damages in voir dire, and b) discussing damages in opening statements (Kanasky, “W. F. Debunking and redefining the plaintiff Reptile theory,” For the Defense, 2014, vol. 57). Priming is very powerful, as it desensitizes jurors to the topic of damages and cognitively prepares them to consider such a demand as more reasonable. Priming, particularly during voir dire, can eliminate the immediate sticker shock that is naturally attached to large damages requests.
Finally, Tyson states that there are two primary causes of nuclear verdicts: greed and bad lawyering. Attorney greed (plaintiff or defense) leads to bad decision making and harmful outcomes. Regarding bad lawyering, Tyson believes that defense attorneys have evolved into risk-averse rule-followers who fear being aggressive and competitive during litigation. The authors of this paper, who have a combined 50 years of jury consulting experience, agree with Tyson (see Dobbs G. and Speckart G., “Streetwise Litigation: ‘Legitimate’ tactics for operating outside the rules,” Litigation, 2003, vol. 29) and believe that defense attorneys and clients need to start “throwing the first punch” in the fight. To quote a different Tyson, boxer Mike Tyson, “Everyone has a plan, until you get punched in the face…” He became the youngest heavyweight champion in the history of boxing, winning his first 19 professional bouts by knockout, 12 of them in the first round. In litigation, if you wait until Round 9 to start punching, you are going to lose the fight.
The Role of Cognitive Fatigue on Witness Performance