Episode #45 – Nuclear Verdicts & the Myth of Social Inflation

CSI Litigation Consultant Dr. Steve Wood joins the podcast to discuss the causes of nuclear verdicts and the myth of social inflation. Dr. Wood and Dr. Kanasky explain the psychology behind the concept of social inflation and why it is being promoted so much. They also talk about how you can leverage early jury research and science to find out what will happen in a case, and the importance of doing this research before settlement negotiations begin. Lastly, they discuss the myth of the millennial juror plus how the plaintiff’s bar is doing so much more, and so much better, than the defense bar in terms of cooperation with one another and the gaps this creates.

Full Episode Transcript

[0:05] Bill Welcome to another edition of the Litigation Psychology Podcast brought to you by Courtroom Sciences. With me, thankfully, because I’m having a very, very bad day, bad mood already, I had to bring in a psychologist to podcast so like I get some therapy today, but uh, Dr. Steve Wood in Texas. Dr. Wood, Steve, how you doing?

[0:29] Steve Good, how are you doing Bill? Well, you already kind of know how you’re doing…

[0:30] Bill I’m miserable, I’m miserable, I’m out of my mind because I keep reading articles from experts who are what, law professors, that either have never tried a case or haven’t tried a case in 30 years, telling the American public what the causes are of nuclear verdicts. I mean, I study this for a living, you study this for a living, and I read the articles and they’re coming up with all these crazy ideas. Listen, you’re the social psychologist, but so the, the hypothesis out there I’m going to call a myth at best is social inflation. Social inflation. I mean god we’re, you know, we’re paying quarterbacks 40 million. What’s the Mahomes contract?

[1:14] Steve Oh, it’s close to 500 million.

[1:15] Bill Yes, 500 million dollars. So are, are our verdicts in Kansas City like elevated because of Mahomes’ contract? You see my point here. What are your thoughts on this, this whole concept of blaming society for high verdicts when in reality the defense bar is pretty much getting their teeth kicked in in the courtroom?

[1:37] Steve Yeah, I think one of the things from a human perspective is that people try to draw causation. They try to make rational explanations out of things that are happening and sometimes it’s, you know, not necessarily fully thought out or it’s not really necessarily data based and it’s more kind of anecdotal evidence. And but it makes us feel good, right? It makes us feel that we can point our finger on it and say this is the reason, this is the reason why things are happening, so it helps us sleep better at night. So I think it’s really human nature to try to find something to blame or something to help explain why things are happening.

[2:13] Bill Exactly. And so here’s, so here’s my counterpoint, which I tell these people and they, they get mad at me and I just, I just don’t care because I’m a scientist, you’re a scientist, I’m just tired of this just stuff flying around. But I’m like okay, if, if social inflation, right, if, if that caused nuclear verdicts, wouldn’t the plaintiff win every time and the defense has no chance? Correct? I mean if that’s really a causational relationship. So in other words, when the defense wins, how do you explain social, like where was social inflation on that day, right? I mean, so, so going forward here, I mean some of the things that I think and I’d like you to comment on this going forward is uh, the way you win trials is you beat your opposition. This is, I mean again it’s another analogy, the social inflation thing, it’s like saying, well the Patriots were really good for 20 years and, and because they had the best fans, right? No, no, that they had Tom Brady, they had a really good coach, they put together a really good team. But like, but things like, like, like what are your thoughts as far as, you know, as far as yeah doing research on your case earlier in the case, maybe via a focus group or a mock trial to actually figure out do I have a nuclear verdict on my hands or not? What are some of your thoughts about doing actual science to figure out what’s going to happen in my case rather than waiting for society to figure it out for you?

[3:54] Steve Yeah, I think you know, I’m a strong proponent obviously just from a data research perspective of doing the research early in a case and getting uh, your head around what are the themes and what are the pain points and what are the areas that we need to work on, rather than waiting till after deposition or waiting until you’re on the eve of trial having to realize, oh now we need to switch gears and, and find out whether or not our themes work. And I think some of the times it can be frustrating though because a lot of clients don’t want to actually pay for the research, which I guess makes sense because they have it within budget, but at the same time there’s, there’s, you can do it and cheaper ways you can do it. But I think to go into a case without having any sort of sense of what jurors think prior to is is a recipe for disaster just on its face, not necessarily related to social influence but just from a lack of preparedness standpoint.

[4:52] Bill I, I totally agree. So I have a client call me, they’re like, well we, we’re thinking about doing a focus group on our case. Like, okay. Uh, so I kind of ran them down and I’m like, well when do you want to do this? You’re like well, if the case doesn’t settle we’re gonna go forward with this. And I said excuse me? They said oh, maybe you didn’t hear, maybe we have a bad connection. If the case doesn’t settle we’re gonna do our research on this case. And I’m sitting there scratching my head going, what? Why would you do the research after your settlement attempt fail? I mean, it isn’t, I mean from a scientific, I mean Steve maybe I’m wrong, I mean we both got PhD’s here, but isn’t it better to have your answers before your negotiation for settlement?

[5:42] Steve Yeah, and, and I’ve, I’ve even heard from, I’ve talked to clients before where they’ve used the information that they’ve gotten from the focus group or from the mock trials in their settlement negotiations. You know, to go in there to have at least a baseline of where they know their numbers are at versus going in there blind and having plaintiff council negotiate a number that is extremely high that the defense could then… an interaction is extremely high and here’s the reason why I have data to show jurors would never go and give you that much at trial, versus just saying hey, we don’t agree with that, it’s too high. And then, and then moving on and then your settlement negotiations fall apart.

[6:20] Bill It just makes no sense. I mean the, the jury research costs what it cost whether you did it a month ago or whether you do it then, it doesn’t matter, the cost is the cost. I think the timing is really important. Um so yeah, so it’s a Friday, it’s a, it’s a, I’m going to label this the frustrating Friday because I, I woke up angry. Woke, I woke up angry. And the other anger part I have about today which again I’m just, that’s why I brought you in for this podcast. Everybody’s blaming millennial jurors like, like these people are the cause of all of our problems in this country, they’re the cause of all of our problems in the courtroom. And you talk to any trial attorney in the defense bar like, these damn millennials, I don’t like them, I don’t trust them, and they’re the cause of all this mess and I’m thinking, where are you coming up with this stuff? Steve, can you talk a little bit about your research and experience with millennial jurors? I mean yeah, they may be anti-corporation, gee go figure, but they’re not lighting up the scoreboard like people think they are, they?

[7:25] Steve No, I think millennials tend to get a bad rap as far as that goes. You know, a lot of times people talk about they have a higher sense of entitlement, don’t necessarily understand the value of a dollar and all these different things that work against the idea that they’re gonna light up the scoreboard as you say. But no, I mean we haven’t, we’ve seen, we’ve seen some, but I wouldn’t necessarily say though if you were going to jury selection and you had a millennial that you would automatically strike them because you’re going to believe that they’re going to go in and help with the nuclear verdict. Because we’ve seen before where we’ve seen some of the most, uh, the most argumentative or the angriest jurors tend to be someone who might be more of the baby boomer age or somebody who might be more in the, you know, early 50s.

[8:10] Bill Yeah, I’m an angry Gen Xer if you couldn’t figure that out. I want to award a high damages, but yeah, I think it’s a, uh, I think it’s a, and we can kind of wrap up here on this point, is I think that every, you see these verdicts and people are worried, I get that, and they, they want answers. And so again they start connecting these dots, you know, from a causation standpoint, trying to make sense of this, um, and it’s not really helping. Like there’s no solutions here because really social inflation, I mean by definition is yeah, society, you know, you know they’re tired, they’re tired of corporations, they’re tired of this, they’re tired of that, and you got these jurors that are fed up and they’re gonna eat, you know, uh, it’s wealth distribution and they’re gonna equal the score here and they’re going to, they’re going to, they’re coming out and they’re just fed up with… Steve isn’t it true, I mean jurors been angry for what, 50 years? I mean you know everybody’s like oh jurors are really angry now and I’m like, uh, can look back at like 1982, 1983, 1984, you’ve got crazy, crazy verdicts back then. And even back then, I mean we’re talking this is like 30, 35 years ago, jurors were upset. I mean I’ve seen many of uh, verdicts which in our mock trials were cool, calm, logical people are talking about 250 million dollars. I mean isn’t it true that, I mean anger may be one component, right? But it’s not the one thing driving nuclear verdicts, is it?

[10:04] Steve No, I wouldn’t say it, it’s, it’s purely, purely anger. No, I mean I think a lot of times in situations you can have rational human beings who view evidence objectively and see, you know, that, that the case is worth 250 million depending on what it is. And like I said, I don’t think it’s necessarily someone coming in there pissed off that wants to send a message. I mean there are some components of that, there is some components of that in there, but it’s not necessarily the end-all be-all.

[10:33] Bill Yeah, and in the end, which is funny because when you, when you read all the plaintiff attorney articles that are matching all these social inflation articles, the plaintiffs bar is, they’re actually correct. They’re like, you guys are full of it, like what the heck are you talking about? Social inflation? No, we’re just beating you badly is what we’re doing. We’re, we’re giving better opening statements, our witnesses are more prepared, we’re anchoring damages, boom, completely different podcast. Meaning we are outmaneuvering you at every level of litigation and you’re gonna go blame society? You’re gonna blame the jury when we’re beating you? I mean isn’t that what’s happening here?

[11:17] Steve Oh yeah, I mean obviously the, the plaintiffs bar has done a really good job, as far as being collaborative with each other, sharing information, and really honing their skills. I mean I, I’ve sat in on podcasts where it’s just plaintiff attorneys going and saying what better way can we do to smash the defense bar? And it’s them bouncing ideas off of each other. So rather than trying to keep things to themselves and keeping things, you know, secret from each other they’re, they’re how can we work together to basically destroy the defense bar.

[11:47] Bill And the defense bar gathers together and says, these damn millennial jurors, they are the worst. I mean, but this is the absurdity in the life that we live. Dr. Steve Wood, thank you so much for contributing to the podcast today. I think we’re going to rattle several of these out over the next couple weeks to end the year strong because I know this and you know this because you, you, you were on that seminar. In fact, before we wrap up, tell our audience essentially what the plaintiffs bar’s big plan is for 2021. I know what the plan is but they pretty much announced it. Tell them, tell our audience what the plaintiffs bar intention is for 2021.

[12:27] Steve The best way to sum it up, and it was actually Sean Claggett who said it, was we’re going to start smashing verdicts as we come out of COVID. So they’re, that’s, that’s what their plan is.

[12:37] Bill Meaning they’re already, they’ve been getting nuclear verdicts, right? And now the plan is to actually ramp it up, just, I mean I don’t know what the word is above nuclear but that’s what their plan is. So everybody needs to stay tuned and Dr. Wood and I will stay on this and give you all of our observations.

[12:55] Bill Steve thank you so much, uh, we’ll come back here, uh, next week and do another one. Everybody else thank you so much for, uh, being part of the Litigation Psychology Podcast brought to you by Courtroom Sciences. Dr. Bill Kanasky, Dr. Steve Wood, see you next time.