The Litigation Psychology Podcast

Nuclear Verdicts part I

CSI - Courtroom Sciences Inc

CSI is pleased to present the debut of The Litigation Psychology Podcast! This brand new podcast series, unlike any other podcast today, is about the intersection of science and litigation. We explore topics of interest to in-house and outside defense counsel and the insurance defense industry, with a particular emphasis on subjects that don’t get enough attention. The host of The Litigation Psychology Podcast is Dr. Bill Kanasky and joining him will be other Ph.D.-level social scientists from CSI, with a wealth of knowledge about science, research, human behavior and decision making, as well as other special guests. Start listening below!


A podcast introducing The Litigation Psychology Podcast: 



Episode 1 - Nuclear Verdicts - part I:


Podcast summary (Episode 1):

Dr. Bill Kanasky:

Welcome to the Courtroom Sciences Podcast this morning. This is the Litigation Psychology podcast, and this morning we're going to talk about the nuclear verdict. The entire defense bar's in a complete panic right now and I just had an attorney call me last week and he said, "Bill, what the hell is going on here?" And I said, "What do you mean what the hell is going on?" And he said, "Well, my clients keep calling me, asking me what the hell is going on? I'm reading about all these nuclear verdicts, nuclear verdict this, nuclear verdict that, and it seems like the entire defense bar is now in panic mode." And I actually agree, they are and I think that there are certain reasons for this, and so today is episode one of, I think a series that we're going to do, on the nuclear verdict, what it is, what it's not and the potential contributing factors to it.

Dr. Bill Kanasky:

And there are many that I'm going to start to go over today and some of them you're probably not going to want to hear. Others I think are highly debatable. But everyone's coming out, all the pundits are coming out, attorneys are coming out with their potential causes. And I think as litigation psychologists, we may have a different take on this. In our next episode, Dr. George Speckart is who I'm going to have as my guest, he's a colleague of mine for over 15 years. He's been in the industry over 30 years and has been doing research on jurors, jury decision making, particularly on damages. And he has some very interesting things to share with you.

Dr. Bill Kanasky:

So we're going to break down the nuclear verdicts scientifically in a few days here. But today I want to talk about what it is, what's going on in our society that could be causing these. And then maybe some factors that may surprise you. Now I want to start off by playing you some audio from a recent mock jury deliberation, what the client described as a nuclear verdict. Let's hear some of the comments that jurors are saying while they're awarding damages and break down the game film.

Juror:

To deter behavior, you have to do something. And if you don't deter behavior with a penalty like this, then it's sort of like-

Juror:

Especially with apparently just fine.

Dr. Bill Kanasky:

Okay. So to deter behavior, you have to do something. Okay, that's a very logical argument. Let's see where this goes.

Juror:

They're in business. You know, companies can come around to sell off and restart up someplace else.

Juror:

They're all around, they actually spent $100,000 on this, why not I'll just take half of what they just started at.

Juror:

They are big companies, they bought the company at a discount, I'm sure of that, that knowing that got this liability.

Dr. Bill Kanasky:

So this is a trucking case in which there is a fatality in the state of Texas. And now I have a juror telling the other jurors how companies work, how corporations work. And this guy doesn't have any corporate experience, but he's educating the other jurors. Hey here's what companies do. Here's how they operate. Let's keep listening to the videotape.

Juror:

They rolled the dice.

Juror:

on top of the 136 [million]

Juror:

Did they possibly know, about the liability?

Juror:

50 thousand, I mean 50 million.

Juror:

She suggested to go half of the $136 Mil and go with $68 or seven you know?

Dr. Bill Kanasky:

Okay, so the demand, the demand in our mock trial was $136 million dollars. So this jury is like, hey, I have an idea. Let's make life. Yeah, that's too much money. Let's cut it in half. Let's do 65, 68 million. So there's another factor there, which I want to talk about now and also later is that the plaintiff's bar is simply asking for more. They're simply asking for more. If they would have asked for a hundred in this particular case, I'm sure this jury is going to be talking about, well, let's split down the middle at 50 if they would've asked for 50 they'd be talking about 25 but I want to hear some of these more punitive comments coming up.

Juror:

To deter behavior, you have to do something and if you don't, if you don't deter behavior with a penalty like this, then it's like.

Juror:

They rolled the dice.

Juror:

On top of the 136. Okay, then 50 thousand, I mean 50 million.

Juror:

She suggested to go half of the one $136 and go with 68 or 70.

Juror:

How about 75? [laughing]

Juror:

It has to hurt them because it doesn't really, really hurt them. So that would be like someone saying, okay to me, I'm super poor. So if they said you have to pay $500 like that would kill me, I would die. Like it would take me forever.

Dr. Bill Kanasky:

So it's going to have to hurt them. That's what you just said. So then that was just a punitive, that was not the compensatory damage deliberation. That was, that was just a punitive talk. So we have to go back to really what, what is going on here? There are a number of factors, but let's talk about nuclear verdicts. You know, what is a nuclear verdict? And by the way, no one agrees on this stuff. I had a client, well not a case that I worked on, but a client that earlier in the year got hit on a med mal case for $1.5 million. It was $1.5 million dollars. Well to him and his client, that was a nuclear verdict. So I think it's going to depend - it's in the eye of the beholder what a nuclear verdict is, and again, there are a lot of, so you know, so-called legal experts and attorneys coming out with factors such as, well, it's corporate mistrust.

Dr. Bill Kanasky:

We have growing corporate mistrust. There's social pessimism, it's politics, it's Trump, it's people don't value money the same way. And then several have come out and said that the reptile theory is playing a big role. And I have several opinions on that too. But I think what we really have to determine here before I go into these factors is who is to blame? Who is to blame? And I got to tell you everything I'm seeing right now. Everybody's blaming the jurors. Everybody's blaming jurors. No one's taking a look in the mirror. Okay, no one's taking look in the mirror. And I think that the defense bar needs to take a really good look in the mirror because I do think that they're contributing to some of the variants here in these verdicts. And I'll tell you why in a second.

Dr. Bill Kanasky:

So there's this growing concern right now in industry, everybody's going crazy, right? And just in, for example, in the state of Florida last year, the seven largest verdicts range from $41 million to $157 million. All right? And everybody's panicking. When you hear from Dr. George Speckart in a few days, he's going to, he has a very different take on this. Dr. Speckart's comments to me earlier in the week were that these nuclear verdicts have been around for 30 years, they were called runaway juries back in the 90s, then you had your stealth jurors, right? And now it's the nuclear verdict. Well, we would argue as scientists that this is not a new problem. It's just the problem that's really kind of gift wrapped in a different way. And I think one of the issues is the media coverage of these verdicts is far greater, particularly with social media. If you turn on the news channels or the websites you're going to hear about the Roundup cases with the weed and grass killer, you flip to the next page on the internet.

Dr. Bill Kanasky:

I think Johnson and Johnson gets hit for several million dollars almost on a weekly basis now it seems. This is happening all the time and maybe that's another factor here is jurors see all of these large verdicts and have become desensitized to the verdicts and that type of money to them is really not shocking, but again, I think it's one of several potential causes here of these nuclear verdicts. I'm not really sure it's the number one factor. So all the legal experts have come out and they have all of their hypotheses and this individual named David Logan, a professor at Roger Williams University School of Law suggested, quote, "We're a much more deeply skeptical world than we were a generation ago. The larger narrative is people feel left behind." I don't know what the scientific basis is for that, but to me that's a guess. I don't think there's any science behind that.

Dr. Bill Kanasky:

And I don't trust academics either because they're not out in the field like, like we are at Courtroom Sciences literally digging out information and data from these jurors on a daily basis. I'm not so sure that conclusion is true. And he says also that, "People, jurors are fed up, they feel aggravated in general." Well, I mean do they? The defense doesn't lose all of these cases. You know, you don't hear about the nuclear verdicts or the nuclear non verdicts. Meaning when the plaintiff asks for a lot of money they put on their case and it turns out to be a defense verdict. Well, the same jurors, right? The same jurors. I think this is the time where we need to talk about the defense bar looking in the mirror.

Dr. Bill Kanasky:

Funny enough, I think the one group of people that have more accurately figured this out and I actually agree with them, is the plaintiff's bar. The plaintiff's bar has come out with all of these articles and LinkedIn posts and said, "hey, wait a second, you guys have no idea what you're talking about. What's happening is we're out maneuvering you. Okay. The insurance defense industry and corporations, you don't know how to value cases the right way. You underestimate the venue you're in, you overestimate your defense counsel and you underestimate the plaintiff attorneys and we are outmaneuvering you at every stage of litigation." I think that's a big part of this. I see this all the time, in all the nuclear verdicts I hear about, it's the same story. It's discovery was not handled correctly, witnesses weren't trained properly. The depositions are horrible and by the time you get to the courtroom you have a strategic disadvantage that's almost impossible to overcome and I don't think the jurors have anything to do with that at all.

Dr. Bill Kanasky:

And I think a lot of that's what's going on here and we're going to talk about more of that with Dr. Speckart, but I can't tell you how many times I've had insurance companies tell me, well I can't, I can't pay for the mock trial. I'm not going to pay for the focus group. I'm not going to pay to train my witnesses appropriately yet, that's exactly what the plaintiffs are doing early on in the case. And there's a reason for that which is a very interesting reason is that the types of financial resources that the plaintiff's bar now has is really kind of out of control, it's called litigation financing. So right now rather than a plaintiff attorney having to go into his or her savings account, now you have these third party financers, right? That will invest into a case and it takes the plaintiff attorneys or the plaintiff's firm, it takes their financial risk out of it.

Dr. Bill Kanasky:

These are usually hedge fund based from what I've heard. And they're multiplying all over the country, meaning that a plaintiff attorney now can take a case that maybe otherwise he or she wouldn't have taken. Cause now the funding is there and yeah, I think this has really changed the course of litigation. That's why I think you're seeing a lot of these cases move forward that otherwise would have settled because now they don't have to settle. Now they can throw out some type of crazy number for settlement and they don't have to pull off the table. They can go to trial and they can have no fear. Why? Well they don't have any financial consequence by going forward and losing. And I think that's something that's just going to grow. And I don't think the defense bar was ready for that. So this financial banking really allows the plaintiff attorneys to just roll the dice and if they lose big deal, you know, we'll go onto the next case.

Dr. Bill Kanasky:

Whereas before, if they lose a roll of the dice, they get zeroed out. Well now that's a big financial hit to their firm. Well that's not, that's really not happening anymore. So I think the whole concept of litigation financing combined with the defense bar's and the insurance defense industry's, I guess unwillingness to invest in cases early creates, I think the big problem here. So you have two parties that are both working up a case. The plaintiff is doing focus groups early on. They want to find the lottery ticket, they want to find the way the defense insurance, the defense industry, they're largely not doing that stuff. Okay? And then you get into the whole reptile theory. Well they come in with maybe a reptile script for a deposition testimony and the defense witnesses aren't ready. Okay? So now you have a huge disadvantage.

Dr. Bill Kanasky:

You have one side that has done one or more jury research projects in the form of a mock trial, in the form of a focus group. Right? They've adopted perhaps the reptile theory methodology and then you have another group that's maybe saving a couple bucks. But they're completely unprepared for this, meaning their case evaluation is nowhere is nearly as accurate as the plaintiff's case evaluation and their witnesses aren't prepared. So when they, you've all seen, you've seen my CLEs and the countless videos I have with plaintiffs. Just really plaintiff attorneys taking advantage. I mean just completely taking advantage of defense witnesses and the reason why it's, they're totally unprepared and it's completely preventable. But again, no one wants to talk about this. The defense bar has not adjusted to the new plaintiff attorney tactics and these two tactics.

Dr. Bill Kanasky:

Again, a lot of a reptile theory, a lot of it is this financing where these attorneys can get pretty brave because there's no, there's really no financial consequence to them. So going back to one of my favorite movies, I think everybody needs to understand, "You can't handle the truth." And it is the truth. And again, no one wants to talk about it. Again, every time we get a call from the attorneys, the insurance company doesn't want to pay for this, the insurance company doesn't want to pay for that. Well then you know, four years later they're in court. They don't have the weaponry, they don't have the weaponry.

Dr. Bill Kanasky:

And that's I think making a really big impact on these, the ability for the defense to really put on a solid defense because if you start really putting money and time and effort into a case after discovery, well you have to live with that discovery and at trial and you have your bad depositions, whether it be your expert testimony, your fact witness testimony, your corporate rep testimony, one of the, probably one of our top services right now is coming into train corporate reps to be able to withstand aggressive, particularly reptilian cross examination from the plaintiff's bar.

Dr. Bill Kanasky:

Cause listen, let's face it, you put your corporate representative on the stand and they get reptiled, your case is over. Now it's going to be a matter of how much, how much is it going to be? Another factor that's coming up, a corporate distrust. And again, all the pundits are coming in saying, well jurors don't trust corporations. Jurors don't trust corporations. Well, again, I don't think jurors have trusted corporations since the 1960s or seventies, I really don't. Maybe not even, maybe not even then. I remember my grandfather, he worked for Chrysler, Chrysler automotive for 40 years. And as I was growing up as a child, I mean there's Chrysler stuff all over the house. He wore shirts that said Chrysler on them. He just adored this company, and that's the way that war generation grow up. They grew up very, very differently than the subsequent generations.

Dr. Bill Kanasky:

And the last, again, the last 30 years, I think jurors have generally mistrusted corporations. I mean, we look at Enron, remember the Enron days? Okay, well, the Enron case is not new. And people, jurors were not trusting corporations well before Enron. But think about Enron was one of the biggest corporate distrust cases out there, and that was a while ago. Okay, so when people start bringing up corporate,distrust, I'm not sure that's such a huge factor as everybody thinks it is. Okay, I'm really not sure about that.

Dr. Bill Kanasky:

Social pessimism. Here's another one. Well, people have lost faith in the system. People think they're getting left behind and they can fix things by awarding a large verdict. Again, I think this is a complete, I think this is speculation. I don't think anybody has any solid data on this. Courtroom Sciences, we're looking into these things. It takes a while. It does take a while, but I think pessimism has been around for a long time. I don't think pessimism started in 2019 ladies and gentlemen. It's been around a long time.

Dr. Bill Kanasky:

Let's look at some of these hypotheses. The concept of money. Well, money doesn't, money isn't valued the way it was at one time. I would generally agree with this, but I really think it's, it really, really depends on your venue. We work in venues where we do a mock trial or a focus group and we can bring up a figure of, for example, I was working in Wisconsin a few months ago and during the mock trial our mock plaintiff attorney said, you know, ladies and gentlemen of the jury, when you deliberate, I'd like you to come back with a verdict of $8 million for my client.

Dr. Bill Kanasky:

Okay, 8 million, not 80 not 800 not 8 billion, $8 million dollars. And this conservative farming community in Wisconsin started like bursting out loud in laughter and they were appalled by $8 million dollars, okay. So they value money. I think they came back at around $1 million dollars and they thought that was too much as well. So now you go into a different venue, you know, go into Philadelphia, $8 million dollars is nothing. Okay? So I think that there's some interaction effect here with the types of jurors you have. And I think there's a lot of blanket statements, a lot of blanket statements. Jurors are thinking this way and jurors are thinking that way. Well, that's not true. It's going to depend on the venue. Every venue is completely different. In fact, I have a client that's hiring me to do a set of mock trials on the very same case across several different venues.

Dr. Bill Kanasky:

Why? The venues are different. Okay, let's go down to Fort Lauderdale and Miami. And you know when you start throwing $80 million dollars around them, it's not a lot of money. Everybody has a yacht. Okay, go into Lincoln, Nebraska and ask for $80,000 dollars they're going to look at you like you have three heads. So I think looking at the venue and what the venue data shows is, is very important. Now on the other hand, I don't care what venue you're in and look at today's athletes and movie stars. I mean, Russell Wilson makes $79 million dollars to throw a football. All right? Now does that have a big impact on how jurors view money? Well, maybe a little, but again, I'm not so sure of that, I'm not sure. I'm not so sure that's true. I think there's, I think there's other reasons, this is going on.

Dr. Bill Kanasky:

And don't forget another thing that no one's really talking about. The defense is winning the vast majority of these. So everybody's terrified. Everybody's scared. All these corporate clients keep calling. Everybody's worried cause they don't, they don't want to be the next one. They don't want to be the next one on the cover of the Wall Street Journal that just got lit up for a $100+ million dollars. But the fact of the matter is the defense is winning most of these cases. Okay, and when you really look at us statistically, but no one's breaking down, why are they winning? Let's talk about the, I'll tell you why they're winning right now. They're very aggressive early on in the case. Okay? Thankfully there are some corporate clients out there that see things differently. They don't mind dumping in significant funding, okay, corporate funding to giving their defense team the weaponry they need to start the fight.

Dr. Bill Kanasky:

I call it throwing the first punch. You've got to take the fight to the plaintiff, if you're going to sit there and wait and wait and save this, save money as a save money mentality, by the time you figure out you have a problem, it's entirely too late and that's what we want to avoid. And I think that's where some companies in corporate America have figured this out. Like, 'Hey, the way I'm going to win this case is by resolving it. I'm going to settle this case and here's how I'm going to settle this case. Well, I'm going to make sure that my witnesses are trained properly. I'm going to make sure that my witnesses are effective at deposition. I going to make sure, my corporate rep does not get reptile because once that happens, it kind of sucks the life out of the plaintiff's case.'

Dr. Bill Kanasky:

Now they got to think twice. You know do I want to keep going with this, do I want to take a reasonable settlement and a lot of them want to take the reasonable settlement. Okay, now, yes, we have this litigation financing going on. Okay. That is a factor where regardless of what happens, a case may end up going to trial, but I think much of the time when the plaintiff has figured out, wow, the defense has done their homework, I'm going to rethink this. And I think that's where the defense has been doing a much better job. But again, it's only a small proportion of defendants, a lot of defendants, if not the majority, again, they take that I need to save money on litigation. Litigation's expensive. Well, yeah it is, but the problem is when the other side is spending more than you and the other side is more prepared than you, that's going to lead to issues down the road. So I think that the reason why the defense is winning a lot of these cases is that they're properly working up the cases. They are getting their witnesses properly trained for testimony, particularly for the reptile attack. We've all seen this, okay, these reptile attorneys can absolutely abuse your witnesses and it's always on videotape and that puts you in a terrible position going forward. Terrible position going forward.

Dr. Bill Kanasky:

Finally kind of last topic here and I'm, I'm just scratching the surface. We're going to do a series on all these topics. This is just kind of the first one that scratches the surface, is what the other thing that the plaintiff bar has figured out, because they've been doing the mock trials because they've been doing the focus groups, they're getting very bold with their demands. Okay? They're asking for more money. Why? They can. They have figured out, you know, a lot of jurors like to split the baby or go halfway. They want to go home. Jurors don't want to sit there for five days calculating damages. And so this effect is, it's quite amazing if the plaintiff asks for $50 million, okay? Many jurors say, you know what? Let's let's give them half of that and get out of here. Right? Well what if they ask for a hundred?

Dr. Bill Kanasky:

Well, now the award just doubled. It goes from 25 to 50 what if they ask for 200 million? What happened? Well half of that is a hundred so they're getting very aggressive with the amounts of money they're asking for. And if the defense doesn't properly attack that amount of money immediately, that's how they're going to get burned. Now, most defense attorneys are taught, don't talk about money early in the case. Well, things have changed. Things have absolutely changed. If a plaintiff attorney comes out and asks for $150 million, the first three sentences of your opening statement better be attacking that demand and about how absurd it is.

Dr. Bill Kanasky:

I worked on several cases like this in which a plaintiff attorney came out and asked for well over a $100 million dollars and I had to convince the attorney, don't wait till later on. Don't wait to your damages case to attack that number. Don't worry about your financial economic expert to attack that number. You have to attack it in the opening statement. Okay? Otherwise, there's this anchoring effect and it's going to impact jurors, so you have to torpedo that immediately in the opening and not wait till later on in the case.

Dr. Bill Kanasky:

I think now this is a good time to wrap it up. I wanted to get this first part of the series under our belts, educate our listeners on why we're doing this. Why we're doing this is well, no one else is doing it. No one else is podcasting. And I think we have a unique insight on jury decision making and juror cognition, jury behavior, jury emotion, and why this stuff is happening. And quite frankly, we want to share it with the, with the defense bar, we want to share it with corporate America. You know, the one thing that the defense gets knocked for a lot, and I do agree, everybody says this and it's completely correct. The defense bar does not communicate effectively. They don't share ideas, they compete with each other because you're all fighting for the same business.

Dr. Bill Kanasky:

Whereas the plaintiff's bar, they share everything. When they win, they share it, ready for this, when they lose, they share it. Okay. And they're doing that. So I think what you're going to see here, and we have to stop it, and part of this podcast is to stop this effect. There's an evolution going on. There's an evolution going on and I think the defense bar's behind and they have a great chance to catch up. But how do you catch up? Well, CLEs right? Whether it be webinar or live, we have to share our strategic information with each other. Otherwise, the plaintiff attorney, the plaintiff attorney bar is not only going to stay ahead, they're going to increase their lead and then we have to be more aggressive. The defense bar has to be more aggressive early on in cases you have to throw that first punch, put the plaintiff attorneys, put them on their heels, and that really changes the leverage in the case.

Dr. Bill Kanasky:

And so I want to thank everybody for listening on this first podcast of the nuclear verdict series. We'll be back in a few days with my guest, Dr. George Speckart, to get into each one of these issues scientifically as we want to show you what the data is showing, and we're very excited about that. So for now we're going to check out and we'll be with you in a few days with Dr. Speckart. Thank you very much.