Episode #8 – Nuclear verdicts with Bob Tyson

Defense attorney Bob Tyson joins Dr. Bill Kanasky for the first video episode of The Litigation Psychology Podcast. Bob and Bill discuss the challenges for the defense bar with millennial attorneys, Bob’s new book on Nuclear Verdicts and the impact COVID-19 may have on jury decision making.

Full Episode Transcript

[0:04] Bill:
All right. Another edition of The Litigation Psychology Podcast. This one being video by Courtroom Sciences and we have Bob Tyson on the line here. Bob, how are you doing over there in San Diego?

[0:21] Bob:
I am doing just great Bill thank you.

[0:27] Bill:
You’re my third podcast of the day and I apologize for being so late but you are three hours behind. A couple quick questions because we’re gonna limit these to about fifteen minutes. You and I were on a roll about two months ago. You had your book, I had my article; we’re doing speeches on this stuff and then everything comes to a grinding halt. My concern is that COVID-19 is distracting the defense bar from the key topic which is the nuclear verdict topic which is what your book is all about. What are you seeing with the attention span and where the focus is right now and do you have any concerns?

[1:07] Bob:
Yeah no, I don’t really have any concerns but I will admit I see why the attention span and focus has changed though, I mean the world has changed. You know the good news for defendants out there is that we have done some research and there have been no nuclear verdicts in the last 30 days.

We know why right, but obviously it’s not gonna be on their minds but what will be interesting is we did a webinar on what might juries be like, not on Coronavirus type cases but just the first cases that come out of the chute so it’ll be interesting like the one thing that’s pretty clear is that nuclear verdict are not going away. It’s not like I mean I’d like to think that defense lawyers are spending this time right now reading my book and reading your articles and listening to your webcast but I don’t know that they are.

[2:02] Bill:
What is your opinion and we talked about this when we did the first podcast which was quite lengthy about 45 minutes which I think was just phenomenal.

[2:24] Bob:
Well my mom thought it was a little bit long, which was a bad sign. My mom said it was good but a little long Bobby.

[2:31] Bill:
But there’s so much important information to share Bob, so come on.

[2:34] Bob:

We could’ve gone twice as long.

[2:38] Bill:
Actually we can and that’s why I want to keep doing these with you to keep disseminating all this information that we can.

[2:46] Bill:
Talk a little bit about the concept because we talked about this in the other podcast, which I don’t think is getting near enough attention, the nuclear settlement as opposed to the nuclear verdict. I think this is a real danger because some of these crazy, particularly from the reptile folks, the crazy demands coming out and the plaintiff’s bar essentially saying you know I got you right here you’re gonna pay X amount for this case otherwise you’re gonna be in the front page of the New York Times kind of where do you see the whole nuclear settlement issue going?

[3:23] Bob:
Yeah I mean they have a have a gun to the defendants’ insurance company’s head. Plaintiff’s lawyers, they’re good man they’re good at what they do and they’re good at letting the world know what they do, so you try to get a confidential settlement. Back in the day they didn’t care was confidential or if it wasn’t they wanted their third or their 40%, now they don’t want a confidential settlement because typically whatever their case is, they’re thinking what can I do with this case going forward, right? How am I gonna get this on my social media platform. So big settlements, big verdicts, that’s great you know they’ll get compensated for that. But it’s really what it does for their cases in the future so we’re seeing a lot of big settlements.

[4:14] Bill:
Which is unfortunate but the reality of the situation. Bob tell us a little bit about your book and the type of reception that’s gotten because when I read it I was like wow like this guy is not holding back and you pretty much call out the defense bar that yeah they’re gotta be tougher they’re gotta be more aggressive; what has been the feedback from defense attorneys based on your publication?

[4:49] Bob:
So it’s been interesting; the defense attorneys’ response even though I’ve been challenging them has been fantastic and I’m not just saying that like the way a politician let’s say just ignore all the bad stuff. No universally it’s been wonderful feedback from defense lawyers many of whom we’re doing these things but just hadn’t organized it or really taken the full stock of what the plaintiff’s bar is up to. So the defense lawyers has been surprisingly good on the concepts.

And the other clients have been great; in fact many clients are asking their defense lawyers to read it so I’m getting emails from defense lawyers saying oh we’ve got a mutual client who have asked them to read it now. On the other hand the only bad reviews I’ve gotten on Amazon have been from plaintiff’s lawyers. So, other than plaintiff’s lawyers, very well received.

[5:49] Bill:
How, because I was talking to an insurance carrier yesterday about doing a podcast with him on Friday, in the trucking industry and when we were talking about he pretty much said which I totally agree with and I’d like your guidance on this is you know we can spread the word between a consultant like me, a trial attorney like you, but until you start talking to the people that are writing the checks, the people that control the money at corporations, insurance companies, how do you get this message to them because they are the ones, you know, they’re trying to save money, they have budgets, but at the same time they’re the ones that’re going to be financing the more aggressive approach. How do you get the message to those people Bob?

[6:32] Bob:
So the message is going pretty well. You know I was supposed to be on a plane every week during this pandemic so I don’t mind this little pause, it’s okay, but so they were interested they wanted to hear these ideas. But the problem isn’t just defense lawyers, it’s the defense industry. The defense industry takes comfort in doing the same things they’ve always done and unfortunately the plaintiff’s counsel has taken advantage of the whole defense approach. So it has been a struggle and it’ll continues to be a struggle but we’re getting in front of them, it’s just changing the way they think and the way they approach cases and the way the defense, including the client, has to change. It has to change radically and to date it’s a battle.

So the plaintiffs know — I mean I wrote the book, there’s the book, it’s in the background, they’ve read it, plaintiff’s lawyers have read it, they study their trade, they know it works. But then, you have a whole defense industry that doesn’t really want to do it because it doesn’t feel right. It’s not the way I’ve done it the last 30 years. The plaintiffs bar wants you to do the same thing you’ve always done and to date the defense industry has been very accommodating. That’s gotta change.

[7:47] Bill:
Well I’m hoping for some change cuz that’s really what this industry needs and I’m hoping that between your book, my articles, and doing these podcasts, we can make a difference. But it’s gonna have to be a persistent message.

[8:02] Bill:
Bob, a question that’s been very popular, I’m getting this stuff via email and just feedback from webinars, how do you see COVID-19 impacting jury decision-making specifically with the trucking industry and the health care industry? Is that something that’s gonna really make a difference or is it gonna be something short term? Because I think, I mean, everybody’s calling truck drivers and healthcare professionals heroes — does that carry over into a jury deliberation?

[8:36] Bob:
It can. I really think there’s almost two kinds of answers. There are the cases that are gonna be heard and go to trial within the next year, and then there’s the cases that are going to come out of this, you know, where healthcare providers are being sued for their care. And that may not be heard for four years from now — two years from now, three years, four or five years from now. Our memories as Americans are pretty short so that’s gonna be the challenge for defense lawyers: to put the juries back in the shoes of today and remember the fear, remember right now, remember that feeling when you didn’t know how this was gonna turn out.

At some point, when these cases go to trial years from now, we’re gonna say “oh, of course we knew it was gonna be over by summertime, oh we all knew there’d be a vaccine within 8 months.” No, we don’t know any of that right now. So the challenge for defense lawyers is to get that jury, years from now, back in experiencing the fear and anxiety that we all have today.

[9:47] Bill:
Totally agree. Last point Bob and we talked about this before — I want you to plug this because I think it’s so important. I know you got some internal training going on for your younger attorneys. Everybody complains and they’re fearful of millennial jurors, but what about millennial attorneys? I’ve seen a lot of fear coming from people at your level going “oh I can’t find a good associate or I can’t keep a good associate” or “they don’t have a good work ethic or they just don’t have the trial experience.” What are you doing with your young attorneys to make sure that they can compete with the 30- and 40-something plaintiff attorneys, who by the way I think have far better training and experience in the defense bar when it comes to that particular age group. What are you guys doing?

[10:38] Bob:
So we have ourselves — we have a whole TM University, Tyson Mendes University — that’s training folks on our methods. It’s really what’s in the book but also it’s gotten delayed a little bit this year. We want to turn out the best trial academy that there is. And in fact, once we do it internally, just like we did, you know, the book is a result of internal training, and we’ve decided to share with the industry, even though no other defense lawyer has ever written a book And defense lawyers, we share nothing with each other, right?

So we’re sharing, and our hope is to have, you know, and this isn’t fair because he’s an icon and he’s brilliant, but you know a Gerry Spence type of Trial Academy for the defense. I mean, to achieve that would be unbelievable. So we want to do something internally, make it top class to train these millennial attorneys who just aren’t getting the trial experience and then maybe take that out, roll that out.

[11:39] Bill:
Agreed. Hey Bob, thank you so much for being on the podcast. We’ll do this again soon I promise and stay safe out there in San Diego.

[11:46] Bob:
Thanks Bill, you too; thanks for all the work you’re doing, appreciate it.

[11:46] Bill:
Thank you too Bob.