The Litigation Psychology Podcast - Episode 4

Nuclear Verdicts - part IV

CSI - Courtroom Sciences Inc

The Litigation Psychology Podcast, presented by Courtroom Sciences, Inc. (CSI) is pleased to share Episode 4! This episode continues our series of podcasts on nuclear verdicts. In this episode, Dr. Bill Kanasky, CSI Litigation Consultant is joined by defense attorney and author Robert R. Tyson, Jr. Mr. Tyson discusses his new book titled "Nuclear Verdicts Defending Justice For All", which is the first book ever written for the defense on how to avoid runaway jury verdicts. Bill and Bob Tyson discuss how the plaintiff's bar studies and hones their craft and what the defense bar can do to better prepare for Reptile attacks and other manipulations by plaintiff's counsel to avoid nuclear verdicts. 



 


Podcast summary:


Dr. Bill Kanasky:

Welcome to the Litigation Psychology Podcast. This is episode four, hosted by Courtroom Sciences, www.courtroomsciences.com. I am Dr. Bill Kanasky, litigation consultant at Courtroom Sciences, and we've been having a lot of fun with these podcasts, particularly the series that we have on the nuclear verdict topic. I think it's the hottest topic in civil litigation right now. Everybody's talking about it, everybody's worried about it. And we have a very special guest today, Mr. Bob Tyson from Tyson & Mendes in San Diego, California.

Dr. Bill Kanasky:

Bob has just come out with a book, which I'm going to let him talk about a lot today, but it's really the first publication that's really serious about the nuclear verdict. And he's got the playbook here on how to, for the most part, suppress these if not eliminate them, and he did a really nice job. Like I said before, we talked with Dr. Speckart last time, two sessions with Dr. Speckart. So this is our episode four in this series, that will probably go on and on because there's so much to talk about, but we're really, really happy to have Bob with us today.

Dr. Bill Kanasky:

Bob, can you hear me?

Bob Tyson, Jr.

I sure can, Bill. Thank you very much.

Dr. Bill Kanasky:

Now, this is a really exciting... Since 2009 when the Reptile came out, the Reptile kind of shook the planet. And now 11 years later, now it's the nuclear verdict that seems to be shaking the planet. I was telling our audience that I got your book yesterday. You really did a phenomenal job with this book, but before we get into that, I always like to hear about the person I'm talking to.

Dr. Bill Kanasky:

Tell us a little bit about your firm, the types of cases that you handled. And I always like to ask this question, when was it in your life where it clicked, when you said, "I want to be a trial attorney," because that's different for everybody?

Bob Tyson, Jr.

Yeah, thank you very much. How much time do we have? No, I'm teasing. You ask a lawyer to tell you about himself. That that could, cut me off please-

Dr. Bill Kanasky:

That's a problem.

Bob Tyson, Jr.

Exactly. But I knew at a fairly young age. My mom was a legal secretary and she worked for like a white-shoe Wall Street law firm as a legal secretary, and she always wanted me to be one of those. So she got half of what she wanted. I became a lawyer, but I'm by no means an Ivy League, Wall Street lawyer, just a simple trial lawyer, which is what I always wanted to be. I had read a book called My Life in Court by Louis Nizer, when I was about 13-years-old, 12, 13-years-old and understood most of it, but he was a famous trial attorney in the 50s and I was just fascinated by it.

Bob Tyson, Jr.

So I knew pretty early on that I wanted to be a trial lawyer. And now I'm pretty much... always been a defense lawyer my entire life. I've only had one plaintiff's jury trial in my life and that turned out quite well, but it was very scary. So I've got great respect for the plaintiffs' bar for sure.

Dr. Bill Kanasky:

Absolutely. Absolutely.

Bob Tyson, Jr.

Yeah. And so we're a defense firm. I had worked at a couple of midsize defense firms, went out on my own in 1998, had one insurance client at the time, and have now, however many years later, built it up to... we're 150 lawyers plus, in seven different States, with 10 different offices. And Pat Mendes and I, have been partners since about 2002. We've been best friends for a longer time than that. And there's been a lot of challenges, but it's been a lot of fun. Very rewarding.

Dr. Bill Kanasky:

Well, excellent. Congratulations on your success. And let's start talking about the book. When exactly did you come up with this idea about writing a book on the nuclear verdict topic?

Bob Tyson, Jr.

Yeah. With all this growth, we have a management consultant named Dr. Mort Shaevitz who's amazing and I call him the lawyer whisperer. And he had suggested it maybe three years ago, "You should write a book about all these things," because we had internally, in writing, we call them the 10 Tyson & Mendes methods, 10 Tyson & Mendes methods for really how to defend lawsuits. And it was 10 things that we thought and still do, that we do better than other defense firms.

Bob Tyson, Jr.

And so it comes from a career of learning and going up against some of the best plaintiff's lawyers in the country, learning from what they're doing, and sometimes a lot of our ideas come from either doing the same thing as the plaintiffs' bar's doing or doing the opposite, but doing something. That's part of the problem is that no one's been doing anything certainly since 2009, like you said. So-

Dr. Bill Kanasky:

That's a very good point.

Bob Tyson, Jr.

Yeah.

Dr. Bill Kanasky:

That's a very, very good point. So I started your book yesterday and in the introduction... and by the way, for our audience, you got to get this. This is a very... I love your writing style because this is a very up in your face, very candid book. You are not holding back anything and you're very, very-

Bob Tyson, Jr.

It's personal.

Dr. Bill Kanasky:

You're very, very candid with your thoughts and your opinions. And the first thing that struck me, I think it was on maybe the second or third page. I want you to tell me about greed and bad lawyering, greed and bad lawyering. I thought that when you said the two primary reasons these disastrous verdicts happen are greed and bad lawyering. The moment I read that I'm like, "This guy and I, we're on the same page."

Bob Tyson, Jr.

Well, you know what? So many people talk about tort reform and I get it. I get it. I'm not able to do that, write your congressman, that's not me. But what I've said to folks sometimes is, people complain about these crazy verdicts and the system's broken, it's not fair, we need a whole new system. And what I've said to some people is like, "Have you ever gotten like a good deal in life?" I said to some real estate people, "Have you ever like gotten a good deal on a piece of property where you ended up, you bought your house at a reasonable price and sold it for more a couple of years later, and you made a lot of money?" Do you think that the real estate system is broken? No. You were just better than the other person.

Bob Tyson, Jr.

And that happens all the time in trial where it's two human beings going against each other, and sometimes the other side's better. And then the other thing that happens is one side or the other sometimes gets greedy. My biggest wins, we've offered millions of dollars. I've had people say to me, "How do you sleep at night? How do you live with yourself? You should have taken the money. You should've taken the money. You didn't take the money." So that's how I live with myself. We offered you millions and you didn't take it, and now a jury, 12 of your peers decided you were never even entitled to that kind of money. So yeah, it's very personal.

Dr. Bill Kanasky:

Well, yeah, and I have the same attitude, and back when Reptile came out, I tried to be the pioneer to create the Anti-Reptile System, which has been highly effective and the plaintiffs' bar's not too happy with me. I can tell you that. And they're not going to be too happy with you either, so-

Bob Tyson, Jr.

Oh, on. And that is, you wonder who's going to buy the book. And I did write it for the defense industry, but the plaintiffs' bar will read it and I'll tell you why. They'll read it because the plaintiffs' bar studies their trade.

Dr. Bill Kanasky:

They do.

Bob Tyson, Jr.

They really do. They read David Ball on Damages, they read the Reptile Theory, they read Nick Rowley's book, they read all the Gerry Spence books, and you ask defense lawyers, "Hey, have you read David Ball on Damages? I know what it is." You know, it's like, you've got to read these books. I've read them all. You need to know what your opponents are doing. And the plaintiffs' bar is going to buy my book, that's for sure.

Dr. Bill Kanasky:

And they're going to listen to this podcast too, and I don't care. Good for them. But I'm glad that we're together here putting up the strong fight. And one thing that I see as a big problem in the industry, just to kind of dovetail off of what you just said is, and this is a problem that is nationwide that I've been hearing from just hundreds of defense counsel, is that the development of the young defense attorney is nothing in comparison to the development of the young plaintiff attorney.

Dr. Bill Kanasky:

I think the plaintiffs' bar, I think they're training their young people a lot better than the defense side is. And particularly with Reptile, all this training; I was giving a Reptile speech the other day and there were 500 people in the crowd and they're all defense counsel and I said, "Raise your hand if you've spent a nickel on training on becoming a better attorney, on giving a better opening statement, on learning how to cross-examine an adverse witness. Tell me how much training have you put into your career since you've been licensed."

Dr. Bill Kanasky:

And not one hand went up, not one hand. Can you talk a little bit about the lack of the development of these... because there's guys that are starting to retire now or they want to retire and they can't because the second chair that they've been with for years has tried three cases.

Bob Tyson, Jr.

Right. It's a real problem in the industry. The other problem is that folks that are getting to my age on the defense side are... I mean, I'm 55 but, in their 40s or 50s, and I've had some success on the defense side, are flipping over to the plaintiff side. Why am I getting paid by the hour when I could just be getting big chunks doing the same exact work, just the other side? So there is a bit of a drain of talent that's going on. And so, this book is part of that as well, that in the defense side of things, traditionally you have a good trial lawyer and he will share what he knows with whoever second chairs with him, who's ever helping him. And so, maybe one other person in the firm, two other people in the firm, learn from this excellent defense trial lawyer. We're changing that in our firm.

Bob Tyson, Jr.

We have a whole TM University where we have our own internal training on everything that's in the book, but then also what you were talking about, which is their skills in general. And this year for the first time, we're rolling out a trial academy just within our firm. And ultimately what I... you asked how the book came about, it hit me like, look, you're sharing it with the hundreds of lawyers in your firm. There is a sense of justice. A lot of these verdicts are simply just not fair. They're not fair to anyone-

Dr. Bill Kanasky:

Correct.

Bob Tyson, Jr.

They're unnecessary. So why not just share it with the world? Why not share it with all defense lawyers? And I get it. I give a lot of speeches to defense attorneys like you do, and it's some of my toughest audiences because I get it. Why do you want someone else on your defense panel coming in and telling you how to try a lawsuit? You've been trying for 20 years or 30 years and why do you need to hear from Bob Tyson? I get it. But we need to do something. So hopefully, they'll listen to the book and listen to you and me a little bit.

Dr. Bill Kanasky:

I hope so. And I'm glad that you said that about your trial academy. A lot of law firms are starting to figure this out and they're inviting me as a faculty member, which I love to do, to help these attorneys develop. And I think everybody, again, your book kind of alludes to this is I think as the defense, I think everybody's got to take a long look in the mirror because we're falling behind. And I think that we've caught up a little bit, but I think the training going forward is going to be really important.

Dr. Bill Kanasky:

The other thing that I've noticed that you know all too well is these plaintiff attorneys talk to each other. They talk after wins, and most impressively, they talk after losses and they share their notes and they share their tactics. And what do defense attorneys do? They compete with each other, they hide things.

Bob Tyson, Jr.

Yeah.

Dr. Bill Kanasky:

And so the dissemination of information is not really what it should be for the defense bar like it is the plaintiffs' bar. I'd like to get some... Go ahead, Bob.

Bob Tyson, Jr.

No, I was just going to say, I don't know that I'll be able to change that, Bill. You mentioned competition. Those plaintiff's lawyers are not competing against each other for the most part. And in fact, if they help each other, they're more likely to get more business, which is the exact opposite on the defense side unfortunately.

Dr. Bill Kanasky:

It is.

Bob Tyson, Jr.

We make our money in volume, we take lesser rates than some others, and to do it, we make our money in volume, we make our money on the next case. So that's very different, very different than the plaintiffs' bar.I wrote a book, so I'm sharing.

Dr. Bill Kanasky:

Yeah, we're actually, we're getting started and we're writing articles and doing these podcasts and doing a lot of webinars to hopefully get the defense bar more engaged into sharing information. Let me ask you a question because this is... it came up in your book and this is another kind of hot button issue. The inability or... I'm trying to think of the right word here. I think inability is the right word or just the philosophy of the insurance defense industry, not letting people like you develop your younger attorneys, because they want Bob, they want Bob Tyson, and you go to your client like, "Hey, I'm trying to get these younger guys up to speed, get their talents honed." Tell me a little bit about your experiences with an insurance company saying, "Oh, no, no, no, no. No, don't do that," and then that ends up really hurting you in the end and your firm.

Bob Tyson, Jr.

And ends up hurting the insurance industry as well, because they're facing the same problems that defense attorneys are facing, which, who's going to try the cases 10 years from now? Now it'll probably still be me because I'll be 65 and hopefully still around, but how about 20 years from now? But yeah, it's a struggle and I get it. A lot of issues in the world come down to money, Bill-

Dr. Bill Kanasky:

Yeah.

Bob Tyson, Jr.

And if you think about it, if you're an insurance company and you can get a junior partner for X and you can get Bob Tyson for $30 more an hour, why not? Right? I mean, why not? But again, that's a here-and-now decision, it's a purely economic decision. One thing that we're doing in our firm is we are trying to be the Mayo Clinic of law firms. So-

Dr. Bill Kanasky:

I love it. I love it.

Bob Tyson, Jr.

Yeah. And what that means is, if you've got a medical problem that's so egregious and so difficult, your personal doctor will send you to the Mayo Clinic. And you show up at the Mayo Clinic, you've got your file, and the Mayo Clinic gets you the best care that you need. They will find the right doctors in each of the different specialties for you. You don't go to the Mayo Clinic and say, "I want Dr. Smith." They come up with a course of treatment for you. And so that's what we're trying to do. Our clients come to us, "Here's our problem, here's our case," and we're trying to get them the best team possible and that they don't get to pick Bob Tyson or a few of our other trial partners.

Bob Tyson, Jr.

But on the flip side, it's one thing to say that, but it's another thing to do it in practice and that's where the whole TM university comes in and our trial academy. So we want to be able to give them the best as well.

Dr. Bill Kanasky:

That's excellent. And I love the analogy too. I guess Courtroom Sciences is trying to be the Cleveland Clinic of jury consulting doing the same thing.

Bob Tyson, Jr.

Yeah.

Dr. Bill Kanasky:

I was giving a speech the other day, and costs, particularly with insurance companies not so much maybe in-house corporate, that's a different animal, but cost always comes up. And the whole, we want to save money mentality, which is difficult because the claims guy handling the file doesn't want to spend 50 grand on a mock trial to really adequately prepare for trial or to adequately prepare for mediation or assess the case, whereas the guys on the other end of the hallway, the indemnity guys, they're the ones that are going to pay out the millions of dollars if they lose.

Dr. Bill Kanasky:

And so you have this, the person that's funding the file and paying for the attorneys and paying for the jury consultants, they don't really interact with the other guy in the back end, the guy that has to write the big check. So I do think from an insurance defense system, I think the plaintiff attorneys are totally taking advantage of this knowing that they can probably out prepare most defense teams because their system is very different.

Bob Tyson, Jr.

Wow! That is a mouthful there, Bill. All of it completely accurate and I just... we both work in the insurance industry, at some levels I have to be careful what I say-

Dr. Bill Kanasky:

Of course.

Bob Tyson, Jr.

Let me say this. Why don't we go back to 2009, like you mentioned.

Dr. Bill Kanasky:

Yeah.

Bob Tyson, Jr.

In 2009, the Reptile Theory came out. Also in 2009, the financial world pretty much came to an end, the fall, just a couple of months earlier before 2009. Well, some of the biggest financial institutions in the world were crumbling and that includes insurance companies. In 2009, we all owned AIG. All of us Americans owned AIG. And so what happened was insurance companies had to get on the right footing and they needed to secure up their finances and stuff.

Bob Tyson, Jr.

So at this same time, when the plaintiffs' bar has come up with a new and creative way to get larger indemnity awards, the insurance companies were focusing on expenses. And defense lawyers, look, I'm here to do what insurance companies want. I mean, we've become much more efficient as a law firm, we know our metrics, we can report our metrics to insurance companies, we can do all that. But at no point in the last 10, 11 years, has anyone said, any insurance company said, "Hey, you need to be working on indemnity. You need to be working on your trial skills." The reality is that our clients have a lot of power over how we act and they've asked us over the last 10 years, not to focus on runaway juries or nuclear verdicts, they've asked us to focus on cost. And we've done that. So it's a two-pronged thing happened in 2009, and I think they're both related.

Dr. Bill Kanasky:

I think you're absolutely right. And unfortunately, oftentimes it does take nuclear verdicts to wake people up and to change decision making. And I'm hoping that that is going to happen. I have a story for you, Bob, it is actually about a corporate client and you're right, 2008, 2009, was a disaster and we've been working for this client, they manufacture heavy equipment. So I'm not going to say who they are, but they manufacture heavy equipment. We had worked with them for 15 years prior to 2009 and they were very aggressive with spending the money up front to do mock trials, to do focus groups, to have their fact and corporate witnesses and 30(b)(6) witnesses going through our witness training program to make sure that they'd be solid at deposition and trial.

Dr. Bill Kanasky:

And over that 15 year period, their highest verdict that was awarded against them was $4 million over 15 years. So we had a very happy client, because the demands on these cases are just 50, 70, 500 million. Well the economic downturn came and they said, "Well, we're going to part ways with you guys because we want to save money." In the next year, Bob, they got hit for over $50 million, over 50, twice in the same calendar year! Why? Well, they stopped doing the mock trials, they stopped doing the focus groups, they stopped preparing their witnesses, and it goes to show you the amount of exposure that they faced was only going to increase. And so I think our philosophy, which I really get from your book is, if you're going to win, you have got to be aggressive and you've got to throw the first and probably second punch in this fight.

Bob Tyson, Jr.

Yes, yes, and it is a fight. It is a fight. Our young lawyers I think are often taken aback by what a trial is really like. And it's generally not physical combat, but it is a form of combat. And the other interesting thing is that for years, for many years, and I've been doing this 30 years, the plaintiffs' bar always kind of hated us because we had all the money and we had all the resources and all that, that's also turned around the last 10 years. My firm goes to trial all the time without using a jury consultant, without mocking it, and these are in cases where we've asked, "We should mock this. Let's mock this." I haven't been to trial where plaintiffs have gone to trial without a mock experiment and testing and-

Dr. Bill Kanasky:

Never.

Bob Tyson, Jr.

Money and time spent in, forever. They mock everything. They know their themes to a T, they don't do just one mock trial, they're testing different things. They're testing damages, they're testing liability. And they're telling me, they're telling me on break, "Oh yeah, I knew you were going to try that, it's not going to work. We've already tested it." I don't believe them necessarily, because it is combat and there's a lot of posturing, but I do believe that they mock trial, they mock the case, before they went to trial. They always do. So they are more prepared-

Dr. Bill Kanasky:

Well, they want to find that lottery ticket. They want to find that lottery ticket. And what I'm trying to tell Corporate America and the insurance industry is, you have to invest up front because you're going to find you're a loser. You're going to find the one where, it's a loser and we can empirically prove that through science by doing a mock trial that's going to give you reliable and valid results. And the good thing is that some of our clients have come around and are starting to be very aggressive, and boy, I got to tell you, Bob, it changes everything.

Dr. Bill Kanasky:

When you walk into a courtroom, well, hell, if you walk into a mediation and you know exactly what your case is worth, you know what your pros and cons are, that is heavy weaponry to have. Whereas if you don't really have that information, in fact, it kind of shocks me that a lot of claims people in particularly, they kind of go on a hunch of what a case is worth and they go on a hunch of what the key arguments or themes will be without testing it, maybe looking at history, whereas the plaintiffs' bar is doing the exact opposite. They're testing all these cases. They're finding out what works. They're finding out, and this is really important, the plaintiffs' bar figures out during their testing process, how they're going to lose the case. That's what they figure out.

Dr. Bill Kanasky:

There's a couple of different ways to win, but they figure out, "How are we going to lose and get zeroed out." And they use that information to then build different strategy until they find the way to get the lottery ticket. And I'd like to talk, this is a perfect time to talk, can you talk a little about this whole notion which is somewhat new, but, boy, is it growing, third party litigation financing for the plaintiffs? Can you talk... because I think that is an absolute game-changer. Because when you have somebody running a hedge fund that is essentially buying plaintiff cases saying, "Hey, I'll give you a blank check. You go try the case. Don't worry about the consequences," it's turned the plaintiff's attorney... I mean, they're doing some pretty ballsy things as far as their demands and the types of cases they've taken to trial.

Bob Tyson, Jr.

Yeah. It's quite a big deal right now. It's, again, it's one of the macro issues, which quite frankly, I'm not going to be able to change. It's another one of those you're going to have to write your Congressman. But I know that a lot of our clients are really concerned about it and want to know more about it. In other words, there are clients that are pushing us to find out the relationship, find out if there's litigation funding through discovery. And in fact, I've talked about, shouldn't they be included as a plaintiff, as a party of interest, because they have a stake in the outcome of it? I don't know. Like I understand what the defense industry wants, I understand where they're coming from.

Bob Tyson, Jr.

One thing that could be another game-changer is that there was a proposal in many different States to allow non-attorney ownership of law firms-

Dr. Bill Kanasky:

Yeah.

Bob Tyson, Jr.

And I know that the consumer attorneys of California came out against it. So the consumer attorneys of California does not want there to be non-attorney ownership of law firms, but it would kind of do away with the whole litigation funding thing that's under the radar right now or not under the radar, under the microscope right now. In other words, if some of these law firms were able to be owned by litigation funders, that's never discoverable. If I'm trying a lawsuit, they don't get to know how much of Tyson & Mendes does Tyson own or Mendes or someone else? Like what does that have to do with whether my client hurt somebody? So the reality is, litigation funding's a big thing right now, but that could change if there is non-attorney ownership and plaintiffs law firms are open to that or interested.

Dr. Bill Kanasky:

Well, we'll have to keep an eye on that, but it's definitely a hot button topic that I know a lot of clients are worried about because they feel like it's not a fair fight, if that's the case, if you have unlimited funding and... you've heard the phrase, taking a knife to a gunfight. Well, this is like taking a stick up against the tank. It's going to put you in a bad position going forward.

Dr. Bill Kanasky:

Another topic that's come up, which I want to bounce off you and this has been around a long time but I think is really related to the whole concept of the nuclear verdict is, the number of Judicial Hellholes that we have in this country. Because I am convinced regardless of the amount of preparation, I think there are certain areas of this country that if you try a case, your odds of winning are substantially lower in some of these places like Philadelphia, Memphis, some like your areas down there in California. Can you talk about how your strategy is when you have a case that's been filed in a Judicial Hellhole? How do you handle those cases differently?

Bob Tyson, Jr.

Yeah, that's a great question. The reality is, we don't handle them much differently. We study, I kind of geek out and read closing arguments in these nuclear verdicts for many years now. I read them on planes and I try not to watch them too much. You can get them through that... seems to be plaintiff owned, CVN, court video network-

Dr. Bill Kanasky:

Yeah.

Bob Tyson, Jr.

But to watch it can be just a little bit upsetting because then you're back in the battle, but to read it it's not bad. And what I've found is there's a pattern in these cases and I think the outcomes are much higher in some of the Cook County and Downtown LA and some other places, Philly. The results are higher, but the pattern's the same. So you need to break the pattern of nuclear verdicts. There are things that plaintiff's lawyers are doing. They're incorporating the Reptile Theory, but things have changed. The way they tried cases in the last 10, 15 years has completely changed and it's more effective in the so-called Judicial Hellholes. The outcomes are just greater than other places. But the methods they're using are working across the country.

Dr. Bill Kanasky:

I totally agree with you. And it is getting scary when you're reading... I mean, correct me if I'm wrong, but does Johnson and Johnson not get hit for over a hundred million dollars about every two weeks? I mean I see it every week-

Bob Tyson, Jr.

I'm not laughing. I'm not laughing. Call me Johnson. But yes, and that's social inflation, right there, right?

Dr. Bill Kanasky:

Yeah.

Bob Tyson, Jr.

You grow numb to a $180 million verdict. Like you can't even keep them straight anymore. There's so many of them.

Dr. Bill Kanasky:

It is crazy. And I do think there is an issue with the whole concept of money. Kris Bryant from the Chicago Cubs, I'm originally from Chicago, he wants the Cubs to pay him $400 million to throw a baseball, to hit a baseball. Some of these NFL quarterbacks... Dak Prescott wants $45 million a year. I think when jurors, you know, the people every day watching SportsCenter start to hear those numbers day after day after day, I think they become numb to what this money is actually worth.

Bob Tyson, Jr.

Yeah. And those are the exact arguments that lawyers, plaintiff's lawyers, are using. They are using the celebrities. I think it was Arash Homampour in LA, within the last year, referenced the Kardashians and the fact that one of the Kardashians is the youngest ever billionaire. And that's how society puts values on people, and he used that to get a significant award on behalf of his client.

Bob Tyson, Jr.

So they're using it, but there's something the defense can do. We can, first of all, if you read closing arguments in a nuclear verdict, the number one... first of all, typically the biggest component of a nuclear verdict isn't economic damages, isn't, "Oh my gosh, can you believe that this poor innocent boy who's now in a wheelchair for life got $15 million and now all of his healthcare is going to be taken care of, all his treatments are going to be taken care of?" No, that's freaking justice. That's right. He should get that all taken care of. When people start to maybe shock the conscience a little bit is when that same person gets $115 million and a 100 of it is non-economic damages.

Bob Tyson, Jr.

So typically, non-economic damages and sometimes punitive damages, are the largest component of any runaway jury verdict. That's the shocking part. So the question I would pose really hypothetically is, how does your defense counsel argue non-economic damages? How are they arguing it? And I'll tell you, if you read nuclear verdicts, the number one, the closing arguments in nuclear verdicts, the number one way that defense attorneys in America argue non-economic damages is they don't argue them-

Dr. Bill Kanasky:

Exactly. It's unbelievable.

Bob Tyson, Jr.

They will spend weeks arguing the medicine and whether this young boy really needs a wheelchair every year or something. That's such a small component and ridiculous by the way-

Dr. Bill Kanasky:

Yes.

Bob Tyson, Jr.

The kid's needs should be taken care of if you hurt him. Why are you quibbling over some of this care? I just read one where they were saying, if this poor boy got counseling that he wouldn't need - this was in $113 million verdict - that if this poor boy had gotten counseling and some physical therapy, he wouldn't need as many diapers over the rest of his life. I mean, are you kidding me? Like why is that your argument? Argue about the biggest part of the case, which is the non-economic damages and the impact that this is going to have on his life because that's what the plaintiff's lawyers are spending their time on and they're getting very creative and they're referencing the things that you just referenced, right?

Dr. Bill Kanasky:

Yeah.

Bob Tyson, Jr.

You just referenced celebrities and all that, and they're equating it to that. And what is the defense bar doing in response to that?

Dr. Bill Kanasky:

Well, they're terrified. They're absolutely terrified. And I have so many defense attorneys, I hear like, "Hey, I can't talk about money. Are you kidding me?" And my response is, "If you don't talk about money early and often, you're going to get your ass kicked." Because they're talking about money. We, and I know that you know about this case, but we went up against the Nick Rowley in LA last year and he got up in front of this jury and in the first sentence - it was opening statement - said, "I want $140 million. That's what I want and I'm going to prove to you that's what my client deserves." That's the first sentence. That didn't happen 10 years ago, 20 years ago-

Bob Tyson, Jr.

Exactly.

Dr. Bill Kanasky:

And so I looked at our attorney and I said, "If you don't attack that $140 million and put Nick Rowley on trial, he's going to get $140 million. This is in a case of admitted liability." And so I convinced these guys to stand up and to say that, "What Mr. Rowley just said is absolutely absurd. It's absolutely absurd. It's unnecessary. And I think everybody in this courtroom knows why he's doing this." And we ended up putting the plaintiff's counsel and that award on trial. We didn't say anything bad about the plaintiff, we made it about the ridiculous figure that came out. And in the end, Nick, walked out of the courtroom with roughly $6.5 million and he was very, very unhappy.

Bob Tyson, Jr.

Yeah. Well, I've had two jury trials against Nick Rowley and he is very good at what he does, and he does exactly what you said. And you raised a good point. When I first started trying cases long time ago, neither side really talked about money-

Dr. Bill Kanasky:

Never, or at the end. At the end.

Bob Tyson, Jr.

Yeah, at the end. At the end plaintiff's counsel would talk about it and maybe suggest some numbers almost sheepishly. In the last 10 to 15 years, they've completely changed the way they tried cases. They used to think it would be off putting to bring up big numbers up front, they don't want to scare the jury. They have studied it. These plaintiff's lawyers are good. They study, they use psychology. And what I try to tell defense lawyers is that psychology, it's the study of humans not plaintiffs, it's not the study of plaintiffs. So what works for plaintiff's counsel works for you.

Bob Tyson, Jr.

So, if I'm in a trial now where they haven't asked for a number in voir dire I'm like, ca-ching-

Dr. Bill Kanasky:

You're shocked.

Bob Tyson, Jr.

That's right, I'm shocked. If they haven't asked for an opening, to be blunt, we've pretty much won. So we have this thing. Look, they've changed the way they try cases, the defense has to change the way they try cases. We haven't. And the way you change it is you have to give a number. So we give a number and we've got a chapter in the book on it, we get a number in every single trial even when we're going for a defense verdict. And like you just said, we give that number early, often.

Bob Tyson, Jr.

And the one thing we learned in a case where we were monitoring against Nick Rowley, is that it never goes up. The defense counsel in that one, doubled his number come closing, and we about lost our mind. So it's early often and it doesn't go up.

Dr. Bill Kanasky:

And by the way, thank you for citing me very often in your book. I really appreciate that. But back to the psychology, that's the whole concept of priming. You prime the jury, and you said this war starts in jury selection because they're going to start talking about money in jury selection, and if the defense doesn't, they're in big, big trouble. And the same thing with opening statement. But the level of discomfort, it's really hard for many defense attorneys to buy in to that system because I think they're absolutely terrified of talking about money. And I think, especially in my CLE's and speeches, I'm trying to get... It sounds like you and your firm have already cracked the code, but I think probably the way attorneys were trained prior to Reptile is you just don't bring this stuff up because it's going to make you look bad, or here's my favorite myth, and this is a complete myth:  If I talk about money as a defense attorney, I'm admitting liability. I don't think that's true at all, Bob.

Bob Tyson, Jr.

No, it's not even close. And we give a number in every single jury trial, all my partners, all of our attorneys, and we get defense verdicts. And finally, I've been vindicated by some smart folks in the Midwest. There's that University of Iowa Law Review testing that they did. Maybe you tell your audience what it showed, but I can talk if you want.

Dr. Bill Kanasky:

A little bit about our studies because we do this on a case by case basis and I can tell you this, when we do our mock trials and focus groups and the defense counsel insists on not giving a number, we get killed every single time.

Bob Tyson, Jr.

Yeah. So, here, I'm going to have a question for you at the end of this.

Dr. Bill Kanasky:

Sure.

Bob Tyson, Jr.

So, this University of Iowa Law Review article did this study; it was a mock trial and they did it two different ways. One where the defense gave a number, one where the defense didn't give a number. I think it was like a 2017 study, and I think it was like 800 participants. And what they found was, I thought they would find if the defense gave a low number and the plaintiff gave a high number, if the defense gave a number, the outcomes were less. They didn't quite find that correlation, what they did find which was something I've been waiting for forever, is that, and I was actually kind of surprised, this University of Iowa Law Review, and if you Google me, you're not going to see my name ever come up in a law review search, so these are really smart people.

Bob Tyson, Jr.

What they found was if the defense gives a number, a jury is more likely to return a defense verdict. If, I got to say it twice, if the defense gives a number, which the whole defense industry does not want to do when they're going for a defense verdict. I mean, you talk to some insurance people and they're like, "No, well, I get it, give a number in some cases, but not in this case”. I mean, we really get a defense verdict, oh, sure. Okay. But if you give a number, you are more likely to get a defense verdict if you give a number. And I was just like, I couldn't believe it. So it's probably the first Law Review article I've ever read in my life, I've never written one. But anyway, I'm just a simple trial lawyer.

Bob Tyson, Jr.

So what do you think about that? Do you have any ideas, doctor, why that might be true? I've got one thought, but-

Dr. Bill Kanasky:

Well, yeah, there's a couple of things. I think that it's important to, again, when you're talking about damages is to say, I have a duty to my client to talk to you about damages, I'm not admitting any guilt or liability whatsoever. And to put on a more reasonable damages, alternative damages argument, I think jurors respect that because if you just don't even bring it up, well now, there's a whole anchoring effect, where if they only have the one number to go to, everything's going to be anchored to that number.

Dr. Bill Kanasky:

And I love it when the plaintiff attorney asks for $150 million and the defense doesn't say anything, and then the jurors in our mock trial say, "Well, you know what? 150 is crazy. Let's cut that down to a 100. We'll show them, and we'll give the defense... It's still $100 million." And so I think the jury respects the defense when they put on the alternative damages case and it brings them back to the voice of reason, whereas if they only have the inflated model, which is the lottery ticket model, there's really nothing to compare it to.

Bob Tyson, Jr.

Wow! So I completely agree. You said the word reasonable, which is one of our three themes that we use in every trial. My goal in every jury trial if possible, and sometimes it's difficult, is to be the most reasonable person in the room. I want to be the most reasonable person in front of the jury. I want to be the most reasonable person. And what I think happens is you're fighting liability, right? We want a defense verdict. So you're fighting it and we're fighting it. Just because we gave a number, it doesn't mean we're just going straight to damages and we're spending weeks on liability, but I think it's exactly what you said, doctor, which is... and I'm trying to be the most reasonable person to explain why we're not at fault, why our product didn't hurt someone, or whatever it might be, but then when you go to damages, here's another opportunity to be the most reasonable person in the room.

Bob Tyson, Jr.

So if you're able to give a much lesser number and you're able to justify it, you're able to explain to the jury why your non-economic number of say, several million versus 150 million, is reasonable and will get this person on the road to recovery and you're able to argue it. I've got two chapters on non-economic damages in the book; if you're able to argue in a reasonable way, the jury is going to say, "Wow! Mr. Tyson, yeah, that kind of makes sense. This guy's talking about Kobe Bryant or some of them," not Kobe Bryant anymore, and God, that is very sad. But I've heard Kobe Bryant reference, he makes 25 million a year, and whatever town you're in, they use a sports figure from there, a quarterback or whatever.

Bob Tyson, Jr.

And they're going to say, "What relevance does that have to this case? Why did they bring up Mr. Tyson explain non-economic damages in a reasonable way?" That makes sense to me. You know what? And you know, what you are saying about liability was pretty reasonable too. I don't know that we ever get to damages. It's another way for you to show that you're reasonable. And I think by arguing damages in an enlightened, educated and engaging way, you're showing that you're a reasonable person and you're going to gain more credibility on your liability arguments and-

Dr. Bill Kanasky:

That's what it is. That's what it is.

Bob Tyson, Jr.

I think we're in agreement, right?

Dr. Bill Kanasky:

Yup.

Bob Tyson, Jr.

I'd read the Law Review article and they didn't really say why, but I agree with you and you agree with me. So I go with our reasons.

Dr. Bill Kanasky:

Yeah, and it's definitely true. And we're running out of time here, but there's one more topic I want to talk to you about, which I don't think is in your book. If it is, I haven't gotten to it yet. But the whole... I posted this on LinkedIn the other day and got a lot of responses on it, but the... So you're hearing about these nuclear verdicts in the media, on the internet, social media, I really think there's a lot of nuclear settlements going on that we never hear about. What are your thoughts on the nuclear settlement? Because some insurance companies or clients, they figure out that they're pretty much screwed. They don't want to have the nuclear verdict, so they just end up paying the piper and they lose a lot of money anyway.

Bob Tyson, Jr.

Yup. That might even be a bigger problem for the insurance companies. They're well aware of it, that is why a lot of the folks in the defense industry are paying attention to this because it at least creeps across over to settlements. Think about it. You're in a mediation and plaintiff's counsel is able to cite a similar case in Atlanta that hit for 100 million because it's been in all the papers and they have access to it. It's going to increase... forget if he was able to get it, if he personally was able to get it, then he's going to... that mediator is going to be saying, "Jim just hit for 74 million downtown. So this case is not that dissimilar from this, you know." So, yes, it's definitely leading to bigger settlements for sure.

Dr. Bill Kanasky:

And I've gotten these... yeah, I get copies of these emails from these big time... I swear they're all cut and pasted, and you've received these, but I'll kind of outline what the email says. It says, "Dear Joe, I don't want you to lose your job. Your insurance company is a good company. I don't want your claims adjuster to lose their job, but you know, I just hit on a $50 million verdict. If you just give me $25 million by Friday at noon, everything's over. Everybody's safe. Because if you don't give me 25 million by Friday, it's going to double on Monday morning. And if you don't give it to me on Monday morning, I'm going to ask the jury for 150. Ball's in your court."

Dr. Bill Kanasky:

A lot of these emails have been coming and you know who's sending them, but now everybody is sending these and they're getting very ballsy with the emails and it's putting a lot of fear into the insurance industry.

Bob Tyson, Jr.

Hey, you know what? In fairness, I give a world of kudos to the plaintiffs' bar. They are very sophisticated now, and now that they've shared information with each other, very sophisticated, it's setting up insurance companies and setting up defendants, and they share it all with each other. There's several innovative smart guys, but they share it not just statewide but nationwide. So we're seeing a lot of that, Bill.

Dr. Bill Kanasky:

I agree. Well, Bob, thank you so much for being on the podcast. You can get your book, amazon.com would be the best place?

Bob Tyson, Jr.

Yeah, that'd be perfect.

Dr. Bill Kanasky:

Amazon.com. Everybody get Bob Tyson's book about nuclear verdicts. Bob, thank you so much. I'd love to have you back on again sometime in the very, very near future. And I want to do a CLE with you live in front of an important group. I think that'd be really fun.

Bob Tyson, Jr.

Me too, Bill. Thank you very much. I appreciate it.

Dr. Bill Kanasky:

All right. Take care, Bob. Bye.

Bob Tyson, Jr.

All right, bye.

Dr. Bill Kanasky:

Well, there you have it folks. Bob Tyson, author of the Nuclear Verdict book, and I highly encourage you to buy it. It's really, really good stuff. That concludes this episode of the Litigation Psychology Podcasts from Courtroom Sciences. Again, this is Dr. Bill Kanasky. Feel free to reach out if you have questions, bkanasky@courtroomsciences.com.

Dr. Bill Kanasky:

Thank you. We'll see you next time.