In this special edition of The Litigation Psychology Podcast, Trucking Litigation Attorney Doug Marcello interviews Dr. Bill Kanasky on the subject of nuclear verdicts. They discuss the definition of a nuclear verdict and what causes a nuclear verdict to occur, including the impact of Reptile and witness testimony on nuclear verdicts. Doug and Bill also take a deep dive into the importance of using the scientific method in trial research, why hunches or previous verdicts in the venue are fraught with limitations, and why claims adjusters should leverage scientifically gathered data before writing settlement checks. They also tackle the criticality of collecting jury data via a written survey vs oral voir dire, the implications of Covid-19 and social unrest on juror perceptions, and why corporations and insurance companies need to be more aggressive and take control early, especially in light of how aggressive the plaintiff’s bar continues to be.
Full Episode Transcript
[00:05] Doug Bill, thank you for sharing your time and expertise with us on nuclear verdicts, one of the biggest topics going on today. One place I want to start, and I’ve done this with the other folks I’ve talked to, is how do you define a nuclear verdict?
[00:20] Bill I, I don’t think there’s really a definition. I think it’s really in the, the eyes of the beholder. You know, everybody goes back to the 1994, uh, McDonald’s coffee verdict. Oh wow, that’s a nuclear. That was only three million dollars that ended up really being overturned. Um, but people thought it was kind of ludicrous because of the nature of the—it wasn’t really the amount of money. And so I have clients that have been hit for five million dollars; they consider that a nuclear verdict in their world. And then you go, you go talk to a company like Walmart, you hit them for 5 million, they’re laughing all the way to the bank. So I think it’s really dependent upon the industry. But I think in general we could all agree that the nuclear verdict, or what we would call this 30 years ago or 25 years ago, the runaway jury—these are just verdicts that are outside of the, very outside of the original, uh, economic assessment of the case.
[01:23] Doug You know, uh, how did we get here, Bill, uh, to build up to this? And, and I talked to, spoke with Rebecca Brewster about the ATRI study, and they have the charts that track out the increasing verdicts over time and then increasing sharply lately. How do you see us getting, uh, to this point in the progression of this?
[01:45] Bill I don’t think it’s anything, this is—this phenomenon’s been around for a while, Doug. This is not anything new. Everybody’s making it new. Um, and I think between, uh, media, social media, the plaintiff attorney advertising, it’s getting a lot more attention. But this is something that’s literally been around for 30 years. And yes, you have, uh, um, these very high, uh, verdicts, but you start going back into the 1980s is when this, this started happening. So again, uh, this is nothing new, but there are various factors that we go over in this paper. We know what causes this stuff. Unfortunately, you have a lot of, um, pundits out there, uh, that have many hypotheses, and they’re only hypotheses, uh, about why this stuff is happening. For example, one of the—well, jurors are fed up. Jurors are fed up. Well, jurors were fed up in 1982, I can tell you that much. And they were fed up in, in 2002, and they’re going to be fed up in 2022. This is nothing new. So what we’ve tried to do at Courtroom Sciences is really focus on the scientific predictors of what’s going on here, and over, over a 30-year period, we’ve, we’ve really figured that out.
[03:07] Doug Let’s start. One of the things that I think you begin in the article with and lay out is very helpful to folks is the, uh, the various causes that can be for the—uh, and I call them detonators, the detonators of nuclear verdicts. What, uh, if you want to, uh, go through—yeah, exactly. If you want to go through those, Bill, in terms of what you had, uh, from the problem witnesses, egregious conduct, on down through those?
[03:31] Bill Yeah, and and number one on that list, and it’s a reason for number one because it’s by far the number one predictor of not just verdicts but, but damages, is the quality of the witness testimony from the defendant. Um, number number one predictor of verdict and damages, which is why I’m so busy preparing witnesses every week for deposition and, uh, trial testimony. And I think one of the factors that’s really played into this is the fact, especially over the last 20 years, is the number of, uh, particularly corporate rep, but just any defendant fact witness… um, the number of these depositions that have been videotaped and then used in the courtroom, you know, two years later, um, can have, can have devastating effects. Number one, but then just the live testimony and what, what the plaintiff bar has done very well is learn how to completely take advantage and manipulate witnesses and get them into more of these kind of fight or flight response patterns. And juries don’t like that crap. They really, really don’t, Doug. And so if, if you know… and expert witnesses on most cases, they kind of cancel each other out because they’re all hired guns, everybody knows it. But the fact witnesses were there. So the problem, the problem witnesses for defendants really seal the deal very quickly on liability. And then we start talking about nuclear verdicts; the more dislikable these people are, uh, and the lack of trust, the lack of believability, um, some sense of sliminess even perhaps, this is what gets juries, um, really out of control with those dollar figures. And so that’s really the, the top factor pushing this, which by the way, highly preventable and highly controllable.
[05:37] Doug Bill, you and Courtroom Sciences deal with this all the time, but what are we talking? The demeanor, the content, uh, presentation, or, or all of the above?
[05:50] Bill It’s less, it’s less content. It’s more of the, um, it’s, it’s more of the, you know, see your demeanor, which is just the body language, the professionalism. You would think, you know, you tell any witness, “Hey, be professional in front of the jury.” Well, if you’re, particularly if you’re not—if you’re a witness that’s never testified before, when you’re going into a foreign land, which is a courtroom, you’re nervous, you’re anxious, maybe you’re frustrated for being there. And a lot of that demeanor can really go south pretty quickly because of the emotional side of this. That’s definitely a factor. I think the number one variable, though, is, is emotion. You again, back to fight or flight. Witnesses will become very defensive and argumentative, if not evasive. Huge turnoff to a jury, right? And or on the other end, they do the opposite. They, rather than arguing and fighting, they go, “Yeah, okay, all right, I’ll say anything to get out of this chair right now.” They’ll admit to the Kennedy assassination to get out of it. And so the emotional aspect is the number one factor I deal with with witnesses, but that is really what’s driving the, really the the poor testimony.
[07:07] Doug Uh, in terms of the witnesses, uh, we talked about that. Uh, one of the things, other factors I think you indicated, was the egregiousness of the conduct. And you go from the, uh, you know, what for a lot of people was a punchline, the McDonald’s jury, until you start to drill down through it.
[07:26] Bill Oh yeah, they completely played that case the wrong way. And when you have—so here’s an uncontrollable factor, though. See, I can control witness testimony. I can control that. I can’t control it when you have, you know, terrible emails, right? Or your hiring practices, right? So for example, in the trucking industry, some of the hiring practices, you’re like, “I don’t know about that.” Or if you have a defendant that was intoxicated on some sort of drug, right? There are certain areas here that, that when a jury hears it, they cringe and they want to go into a punitive, sending-message type of nature. And the way that type of cases—those cases aren’t designed for courtrooms, Doug, because it’s not a matter of, you know, are you going to lose or not. It’s: yes, you’re going to get your butt handed to you. It’s just a factor of how much. And so when you have these cases where you have egregious, uh, conduct that we know is really going to tick off the jury, kind of how the trial attorney works up that case, you’re trying to mitigate and probably resolve that case well before it gets to the courtroom. Because when jurors see that stuff, particularly in the form, especially now in 2020, electronic communication, pictures, videos—this is stuff the jury cannot unsee. And so I think it’s very important that these cases get properly assessed and worked up initially to really position them for settlement, because if you get into a courtroom, the jury will never forgive you for some of this stuff.
[09:10] Doug Is it a situation—we talked about with Rebecca, uh, in the ATRI study about this—where, uh, one of the key ways to avoid the nuclear verdict is to evaluate what you have early on and, uh, and make your strategy, make your call then, rather than play your hand and see what happens?
[09:34] Bill Yeah, in fact, I mean, maybe, maybe that’s the top factor in avoiding nuclear verdicts is, um, being aggressive early in the case, even if it’s a bad case. Um, the defense bar, um, and quite accurately, gets criticized for being more reactive than proactive as, as compared to the plaintiffs’ bar. And that, and that, that really, really has to change. And so yes, uh, accurate assessment of these cases early on, absolutely vital to suppressing nuclear verdicts. But then the next step being in discovery, you know, who’s going to be taking the lead here? Who’s going to be driving the momentum? Are you going to be reactive or proactive? And so a lot of what we do is, um, you know, collaborating with our corporate clients, with their insurance clients, to ensure that these depositions, right, don’t blow up in our face. Because that’s when I start multiplying the value of the case. And even if you have a bad set of case facts, you have relatively effective depositions where the plaintiff attorney is not leaving the deposition really with more than they came in with. They’re not reptiling your witnesses. You can really suppress the value of that case, and it can be a resolution that’s fair to both parties. You do the opposite, that’s how this—no one talks about the nuclear settlement. That’s actually, that’s actually the bigger problem here. The more expensive problem in this industry, all industries, but just in litigation, is the nuclear settlement that never reaches the newspaper, that no one wants to talk about. And that’s what’s happening here because, listen, 98 percent of these cases settle, Doug. You know just as well I do. First, yeah. Two percent, you know, getting on the newspaper, getting on the internet, and you’re seeing your nuclear verdicts, and that’s what everybody’s worried about. It’s the 98% of the settlements where, oh, there’s a lot of money being completely wasted.
[11:50] Doug Well, kind of jumping ahead a little bit, I think that goes to one of the other topics you brought up in the article, and it’s, it’s right out of the pages of Reptile, is to play upon the, uh, risk aversion of either the defense bar or the insurance companies. And the impact—I mean, my, my saying always is that, uh, that insurer can justify, uh, a, a large settlement; they can’t defend an explosion on their watch. And in the Reptile, it tells them to, uh, play upon the, the career-ending potential of a large verdict to a, to a defense attorney.
[12:32] Bill Oh, there’s a full chapter on this in the Reptile book. And this is why what you’re seeing is so—I’m working, I was working on a case last year in Atlanta on a slip and fall in the grocery store where the lady didn’t slip and fall, she tripped and fell over wearing a two-dollar pair of flip-flops, and was clumsy and tripped and fell and broke her leg. And the whole thing’s on video, Doug. The demand on the case is 15 million dollars. Yeah, well, right, here’s the thing. And and we actually had a great outcome in this case because of all the work we put in, but here’s what they were betting: like, “Hey, I know this case ain’t going to trial. What? Yeah, I know this is not even a 500,000 dollar case. I can throw out 15 million because now I got everybody nervous, right, in-house, and now the excess provider’s calling going, ‘Uh oh, what’s going on?'” I’ve got everybody in a frenzy, and the only thing that’s going to get rid of this case is somebody writing me a check, and I don’t care if it’s for half of the 15. And so what you’re seeing now is this exploitation, and this is so bad, and it works. I have to give hats off to the plaintiffs’ part; they’re completely exploiting the system and using the leverage. And you’re right, it’s—they call it the, uh, the ever-present guillotine, right, of the profession, where if I get hit with a verdict, I’m getting my, I’m getting my head chopped up. And if I write this check, yeah, it may not look good, but at least I’m not losing my job. It’s happening from coast to coast, all 50 states.
[14:04] Doug Yeah. You said about being aggressive. Some of the things we do, Bill, and, and, uh, I kind of get startled reactions from insurers, and they eventually accept it, is, is a lot of times if we have a potential claim on liability, we’ll, we’ll sue the other side first. Get us the jump on discovery and also to hold jurisdiction. Uh, before suit’s filed, we ask for, uh, independent medical exams. And I really don’t care if they accept or not; I’ve got them on record if they deny it, then it puts them in the background on that, and push back right away on this. Anything else you see, or that can be done to take the fight to them? Because you’re right, too often I see cases where people have just, uh, sat back, or they’ll do an initial investigation, put it in the file, and wait until the, uh, attack comes to them.
[14:58] Bill Yeah, I mean, the best attorneys I work with—this is gonna sound insane, it’s gonna sound absolutely insane—it’s, it’s quite brilliant, actually. The best attorneys I work with across all industries, whether it be trucking, healthcare, prac liability, Doug, they start writing their opening statement in the, in the first month of this, okay?
[15:20] Doug I do my, I do my closing statement that way. I write my closing statement. And then it’s: what facts do I have and what facts do I want to develop to argue to the jury? And that’s the whole case. You’re absolutely, you’re absolutely right. Yeah.
[15:36] Bill So step number one is start, start preparing this case for trial the moment it’s filed and you start getting your facts. Number two, which is, which, which is what I find quite fascinating, which I’m very happy to report: this is—when I started in this field roughly 16 years ago, every mock trial I conducted, every focus group I conducted, was within a couple months of trial, right? Get ready for this. Seven out of ten mock trials and focus groups I do now are in discovery, they’re before mediation. Now think about this. Yeah, this is, listen: you want to avoid a nuclear verdict? How about figuring out you have a nuclear verdict on your hands first? And yes, that’s going to cost you 50 to 150,000 dollars to properly do the jury research. But if you’re a claims person or in-house counsel, trial attorney, and I tell you as a, as a clinical neuropsychologist and jury scientist—I tell you, “Hey, your case is worth 100 million. A jury is willing to award 100 million dollars.” And I tell you that two months before trial, what can I possibly do for you? I can give you a blindfold and a cigarette, Doug. That’s, that’s best I can do. If I tell you you have a nuclear verdict three years before trial… you see, you see the point here? So I really think it is, it’s not just the thought process of preparing for trial; it’s doing the scientific homework to actually figure out the value of the case. And by the way, how do most companies, particularly insurance companies, figure out the value of their case? They ask the attorney, “So what do you think this case is worth?” And the attorney goes, “Well, this case is worth between five and ten million.” I’m going, “Hello? What? Where, where in the world are you getting these numbers from?” So another reason why nuclear verdicts happen is really a misassessment, a, uh, uh, a bad assessment choices early, and a lot of hunches about what a case is actually worth rather than putting the time, energy, and yes, yes, money into jury science to figure out what the cases, case is actually worth.
[18:00] Doug And I think that was one of the key takeaways I got from your article. Uh, the analogy of the, uh, Taurus from Turkmenistan. Uh, nobody, you know, you know, because you know you don’t hear about that because no one goes to Turkmenistan. Uh, in terms of the jury science, uh, the, the lack of people who do that or cases that do that. Uh, you want to go into that in terms of the application and the importance, Bill, of applying scientific evaluation as a means of avoiding the nuclear verdict.
[18:32] Bill It works. It worked prop—but the problem is, which has been the 30-year problem, or is probably—it’s before my time—is that the insurance defense industry, the claims people and the indemnity people, these are two different people. They don’t talk to each other. And the claims person is getting paid and bonused on spending the least amount of money possible on a file. They have no financial motivation to win, right? And so it’s the barrier here is one of financial. Because listen, Doug, if I told you, “Doug, give, if you give me a hundred thousand dollars cash right now, I can prevent you from losing 50 million dollars,” would that be a good financial deal? You’d be like, “Where do I sign up?”
[19:30] Doug Incredible ROI.
[19:31] Bill Yeah, it’s incredible ROI. But the problem is the insurance folks don’t assess it that way. They see it as a, as a loss because they have to spend something now. Quite frankly, the, uh, the corporate in-house folks, they see it as an investment. And so when I’m actually working with a company that has, um, an SIR that’s significant and, you know, they’re paying the first 10 million, it’s amazing how the mindset changes. And they’re willing to put up that, whether it be 50, 100, 200,000 dollars, to do their homework up front to avoid that 50 million dollar verdict. Whereas, you know, the AIGs of the world, these kind of just the generic insurance companies, you know, they, they, they complain about every nickel you spend on the expert, on the mock trial, on the witness prep. And that’s what sets themselves up for disaster, you know.
[20:29] Doug Yeah. In terms of the cases to apply the science to and start early, uh, not every case would lend itself to that. But what are the cases that you would say, “You know, those are the ones we should flag to start this process earlier sooner than later on?”
[20:41] Bill Well, it’s not—yes, well, I mean, there’s—you have your obvious variables, you know. Catastrophic injury, right? Um, uh, uh, death, particularly something that’s gotten a lot of media attention, I think. And by the way, and you know, people die. There are accidents every hour in this country. That’s not the major… but it is more the, the egregious conduct stuff that you better, you better get ahead of. So, um, one of my new specialties, which will not come as a surprise to you, are, um, municipalities hiring me on, uh, police brutality cases. Because now everything’s on this, you know, chest cam, right? Just like in trucking, you have your dash cam. And so, for example, so when you have cases where, you know, everything’s—you know, when you go to medical malpractice, nothing’s on video. There’s no video of the heart surgery that they botched. All right? In trucking, everything’s on video now. Transpor—this transportation as a whole, if you’re a municipality and you have a bus or a train, there’s video everywhere. All the police officers are wearing video. These are the types of cases where… I mean, I, I, I got up early, dragged my butt out of bed for you, Doug, by the way.
[22:05] Doug I appreciate it, thank you.
[22:06] Bill I put on the news and the only thing I see is video, video, video trying to get voters, voters upset, which, by the way, who are the voters? Oh, they’re your jurors. They’re the same people. And so anything that has, um, visual stimuli that is controversial, negative, shocking—these are the things… you talk about nuclear verdict, don’t even know what the word above nuclear is. Thermonuclear? I don’t know. But I think that’s where you see some kind of even crazier than we’ve seen, is where you have these, uh, cases that have, um, video slash audio of very bad things happening, which really drives a lot of emotion. Um, that’s what you see in politics is driving this right now, but so is the plaintiffs’ bar, and it works on both ends.
[23:05] Doug Well, you know, and one of the things I say is we live in a YouTube society in terms of everything being on videotape. We’re assuming it is, down to the Ring doorbell. It kind of leads into a question: what, what do you do about it? You know, you have let’s say in trucking, we’ve got a video, egregious video, particularly one that, uh—the two-way videos where we have a driver who is engaged in conduct that he shouldn’t be, texting or something like that. What can you do, Bill, from, from the perspective, or how do you deal with the, uh, the worst of the video evidence that is going to inflame the jury?
[23:41] Bill Well, we can’t change facts, right? I’ll tell you that. Can’t change facts. Um, test, test it with a mock jury to see, is there any way to get it around this? Explain it, mitigate it, right? And do that as early as possible. And again, what you’re trying to do is, is, is resolve the case. The, the problem we have—which again, hats off to the plaintiffs’ bar—they have figured out when not to settle. So you finally figure out, “Okay, we’re screwed. We are so screwed.” And then you go to plaintiffs’ counsel, “Okay, that check for 25—was it 25 million? Okay, let me…” and then, “Oh no, no, no. Oh no, no. Now it’s 50. Or we’re gonna see you in court.” They’ve learned how to play poker really, really well. And the problem is you have some of these cases that are just indefensible because of the egregious conduct. And, and there is—what you’re trying to do is you’re really trying to put pressure on the actual plaintiff to say, “Hey, I got a wad of money here. You know, why wait two more years to get your money? I got the money right here.” You’d be shocked how many people would rather take the money and not go to trial. And so I think being aggressive early with settlement negotiations and, and being and being more than fair, um, to try to resolve the cases. But I have a client which should go unnamed, um, out West, right? And they, uh, had injured somebody. Uh, one of their, uh, uh, folks was driving a company vehicle, uh, crashed into, uh, this, this person, uh, who was on a motorcycle. They suffered some really, really bad injuries, Doug. They went out and bought this guy a house. Yeah, they, they bought him a, a wheel—a wheelchair van, right? And then and said, “Hey, we, we will do anything, you know, we’ll do it—we’ll do the right thing here.” To avoid the litigation, to avoid. And it actually worked. But rarely do you see such behavior. But you’d be shocked how often, when, when you have all this anger in this country, when, when somebody finally does the right thing, you’d be shocked how the impact it has on your, on your adversary.
[26:07] Doug You know, one of the big things you wrote about in the article was the predictive element of it, using scientific, uh, uh, to do it. You want to talk about that a little bit, though, please?
[26:19] Bill Well, yeah. So using the scientific method to predict this stuff. And again, the vast majority of, uh, case, uh, values are assessed on hunches or previous verdicts in the venue, which don’t, don’t work. That’s not, that’s not how science works. So it’s the methodology that’s put in place. Um, unfortunately in my industry, unlike yours, uh, we are unregulated. Uh, I’m probably one of the few people in the jury consulting industry that actually has a PhD in behavioral science and has done—I’ve actually done scientific research and been published. And so I’m very strong on the scientific method of doing the research correctly to ensure a valid and reliable result, versus a lot of people in this industry, you know, they have a bachelor’s degree in political science. By the way, political science is not a science, uh, Doug. I just want to make that clear.
[27:25] Doug As a political major, Bill, I know that. So thank you for reminding me.
[27:28] Bill But even—but yeah, even if it’s a master’s degree in anthropology, or even my favorite competitor is the former trial attorney that’s no longer practicing law but now they’re a jury consultant—they’ve, they have no training in the scientific method. So it’s the, it’s the: how are you going to put on these the, the stimuli for the mock jurors to, you know, you know, what is that going to look like? Well, there’s, there’s a certain way you have to do that which—one’s scientific, one’s very unscientific, right? So I know the science behind that. And then your data collection and analysis: what type of data are you collecting? Is it questionnaire? Is it oral? Is it a combination? And then finally, how are you analyzing that data? So one of the, one of the key mistakes—which I’ll, I’ll give you this, I don’t think we put this in the paper—but we have something called a severity shift where, say you have a mock jury with 24 jurors. The mistake to make statistically is to poll all 24 jurors and say okay, um, on compensatory damages: how much you award? And then on punitives: how much do you award? And you take all those and you make a chart, and then you take the average of those and then you go to your client, right? That’s the completely wrong way to do that. And anybody with any type of scientific background would know you don’t do that. But your average Joe, that’s the way they do it. You get very misleading results. What you do is you break that group of 24 into three groups of eight, and you have the jury come up with group decisions. And then you get three sets of data: group one, group two, group three. You average those three numbers. That’s how you’ll get an accurate, uh, damages forecasting of your case versus taking all 24. So you can see how, you know, statistics, right? Again, yeah, you see it every day. Uh, look at the COVID numbers. I mean, there’s a fight about COVID numbers every single day because people, politically of course, are arguing about these statistics. Well, the same thing happens in jury science is, if you don’t know what you’re doing, you get some very misleading values which then will mislead your client. I think that’s kind of unethical and inappropriate, but it happens all the time.
[29:48] Doug In applying that scientific method you described in your article, what you’re looking at in terms of—and the usefulness, as you said, most cases don’t end up going to trial, uh, 98% settle. So the usefulness of this data in terms of your parameters for settlement, Bill?
[30:05] Bill Well, we have many clients that will enter a mediation with our report, going to the mediators saying, “Hey, we hired people with PhDs in behavioral science. Here’s the sample that they recruited, here’s what we showed them, here are the results,” meaning this is roughly a five to eight million dollar case. It’s not the 55 million dollar case that they’re demanding. And we have scientific proof. And that, that has worked very, very often in mediation and negotiations. Because now what’s going to happen, unfortunately, is that your, your plaintiff attorney’s gonna be like, “Well, I did a mock trial too and the results came back in a 100 million dollars.” But then when you start digging into the plaintiff attorney—see, here’s the one thing: that plaintiffs do more mock trials than defense, but they do them really badly. They invite their neighbors over for pizza. “Hey, let’s talk about this case.” And you know, that’s how they get this. So it’s very unscientific. But then when the mediator starts to see the science versus the lack of science, I think it, it can really compel a mediator to, to take your side. So I think building that case for mediation slash settlement is very important using the science. But probably, you know, back to the guillotine, the head rolling thing… if I’m a claims adjuster, before I go settling a case for something ridiculous, I want to go to my boss with some scientific evidence of, “Here’s why I’m writing—I want to write this check and get approval. Because I know if we go forward, we’re going to, we’re going to lose big, and it’s going to cost a lot of money. Here’s why I want to write this check, and I have, I have proof that writing those checks actually gonna really, actually save us a lot of money in the end.”
[32:01] Doug Shifting gears, Bill. Uh, one of the things I think you talked about in the article was, uh, the geographic impact of the potential for a nuclear verdict. The judicial hellholes. Uh, thoughts on that?
[32:16] Bill Yeah, um, that—well, everybody keeps, everybody’s calling me right now saying, “Well, what’s the impact of COVID and social unrest gonna be on jury decision making?” And we’re actually collecting data on that now. I can tell you this, just generally, right now: it’s not positive. It’s not a positive thing, right? When you have, when you have a jury pool that’s been devastated economically, emotionally, mentally, that’s not good for defendants in the courtroom. I can tell you that we will continue to talk about that. But whether you have COVID or not, you know things like social unrest in—well, close to you—Philadelphia, Baltimore, Los Angeles, Atlanta… I mean, I can go on and on. You get cases in those venues, you’re kind of behind the eight ball. And you have to be very, very careful because regardless of the facts of the case, you have a jury pool that wants to settle a score. And that’s not going to change. And I think that’s actually going to multiply and get worse. And so again, what can you do? Again: early assessment, doing those things to figure out which one is my nuclear verdict. But in, in those types of venues, there’s not a lot that can be done because not only are the jurors oftentimes very pro—your judge, your judge is going to rule against you on every motion. And now you have two-thirds of the pie against you. Bad situation to be in. And those are one, those—those are the types of cases that you want to try to resolve as early as possible and get out.
[34:04] Doug Let’s say we go through the process, Bill. I know you’re involved quite a bit with jury selection as well. Uh, how do you do it, and what are your thoughts in terms of the process on it?
[34:14] Bill It’s the worst part of my job. It makes me absolutely crazy. And the reason why it’s the worst part of my job is because the roles and parameters are different for every single—not every single courtroom, every single judge. Yeah, and then you have state versus federal. I mean, I, I picked a jury last year in Cleveland and I kid you not, the judge walks in, you all rise, you know, be seated, you know, looks up at the attorneys and says, “Okay, you got 30 minutes each for juries.” And I’m like, 30? I’ve got 95 questions. 30 minutes? Are you out of your mind? And so that puts me in a very difficult position, meaning, okay, I have to look for the top factors I’m looking for. And then in state court, oftentimes you’re getting all day, if not multiple days. Um, I think that’s something—I think the best tool for jury selection that goes, uh, unutilized often because people don’t think about it or they assume the judge won’t go for it, and they’re wrong, is the use of a supplemental juror questionnaire. I can do some serious damage and I can—I can make this two pages. This, this could take 15 minutes to fill out. That’s what I tell the judge. But I can get some very sensitive information on a questionnaire I would never be able to get in oral voir dire ever. Right? I mean, because, I mean, think about it: if, if during oral voir dire, no one’s gonna raise their hand and say, “Yep, I’m a racist,” or “Yep, I’m a sexist,” or “Yep, I, discriminate against, you know, gays and lesbians.” No one’s gonna say that out loud, right? On a questionnaire, you’d be shocked how honest people are. And you have a lot of cases out there which do have racial components, you have a sexuality component, and no one really wants to talk about that.
[36:15] Bill Um, I work in a lot of premises liability cases where people get raped and then and the claims that, hey, the, the security… well, how are you going to pick a jury on a, on a, on a topic like that? Well, that’s where your oral voir dire only gets you so far, and people don’t like to share sensitive opinions out in the open. But, but on a questionnaire, you’d be shocked how much, um, I can essentially expose on people because they don’t have the public, um, aspect of it and they’ll be far more honest on a questionnaire. And by the way, both sides want it. Trust me, the plaintiffs’ bar wants the questionnaire too. And you may have to negotiate on what questions are going to be asked, but that’s something that really can be a huge impact on jury selection that doesn’t get enough attention.
[37:05] Doug Well, and that kind of leads me to where you started on this topic, which is, uh, the control of the courts and the individual judges. Uh, you usually get receptivity from the court in terms of, uh, the questionnaire—does it depend on the judge? On the case?
[37:25] Bill Yeah, it’s really depending on, on the judge. But what your argument is, is that you’re going to expedite jury selection, right? So what’s going to happen now because of COVID, when things start to open up, it—it’s going to, it’s going to crawl. I mean, jury selection was, unless it’s a federal case, jury selection is a very tedious process. Now it’s going to be even more tedious because of, you know, is social distancing going to be around forever? I—I don’t know, right? Are they going to change the rules? Jury selection is going to take longer going forward. So your argument is, which is always the argument, is the questionnaire is going to expedite the process because we’re going to find out all this information very quickly in written form and we don’t have to rehash everything orally. It’s—most judges kind of like that idea. But again, if you’re giving them a 19-page questionnaire, they’re going to look at you like, “No, that’s, that’s not gonna work.”
[38:28] Doug You gotta pick your shots. Uh, just in conclusion, Bill, what do you see, uh, in terms of what you’re finding on the, uh, COVID, civil unrest—what are you seeing from a jury perspective on that?
[38:42] Bill Well, we’ve collected data in seven cities across the nation. Uh, we have a, a pretty good sample size and we, we’ve also been doing, um, a lot of online, uh, research, which I’m not a huge fan of, but we’re kind of stuck with it right now because of public policy. We’ve still done, um, actually some in-person, uh, mock trials and focus groups in certain locations where you’re not in a COVID hot spot and so we can social distance the mock, uh, jurors. Um, you got a pretty, uh, emotional group. Yeah, a very emotional jury pool. And it’s quite frankly mostly politically based as opposed to COVID based. I mean, everybody is—”Okay, I gotta wear my mask,” and “Yeah, yeah,” people get over stuff like that. But yeah, there’s a lot of people have, you know, been furloughed or laid off. Uh, I have a few friends that have actually had small businesses had to claim bankruptcy because they couldn’t get there, you know? So you have some definitely COVID… and people that have been sick or ill or have lost a family member from COVID. Yes, those issues are out there. That combined with the current, um, political atmosphere, you—you have, you have a stick of dynamite right here, right currently.
And, um, a potential… I mean, look at the craziness that you see in some of these protests and, right? I mean, this is what people are doing right now. And you know, the courts really aren’t going right now, they’re on—they’re on pause. And so I think a lot will be dependent, um, what happens on November 3rd, right? I think a lot’s going to be dependent on where medically this goes with a vaccine and is the country going to low because the country right now has a fever of about 108 degrees. It’s not, it’s not 98.6, right? If we can get that fever to drop, I think that results in more rational and logical thought at the jury decision-making phase. If that fever stays up, I think you get more of that emotional decision-making like we talked about, and that’s where things can get out of hand. But we have no control over these things.
So I think you’re going—whether you have COVID or not, vaccine or not, social unrest or not—uh, companies, insurance companies, defendants, um, can and should, uh, take control of a case early, be aggressive. And, and yeah, I think the big decision is, do we want to spend the money, right? Do we want to spend—do we want to… it’s not spending, it’s, it’s the difference between price versus cost. It’s a price to something, but this is the cost and the cost can actually come back in your pocket. Do we want to invest and prepare more witnesses effectively, accurately assessing our cases, or are we going to be reactive and let the plaintiffs’ bar take advantage of us? That’s what it’s really going to come down to regardless. But I do think come November, we’re going to learn a lot more about jury decision-making and kind of seeing where—where the country goes as a whole.
[42:04] Doug Bill, two things. Number one: thank you very much. Of course. Appreciate your time on that. And secondly, as a person who was at the last game at Carmichael… Go Heels
[42:26] Bill Go Heels. Thank you, Doug.
[42:27] Doug Thank you, Bill. Take care.
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