Two Strategies Defense Attorneys Should Implement Today to Avoid Nuclear Verdicts®
Plaintiffs’ lawyers are driving skyrocketing damages awards in courts all across the country . Such Nuclear Verdicts® – jury awards in excess of $10 million or that are disproportionate and irrational given the facts of a case – trigger higher costs for the insurance industry and result in premium increases that are out of step with other cost-of-living indicators. They can have devastating consequences for corporations and insurance companies.
Plaintiffs’ lawyers utilize a variety of evolving tactics, including the Reptile Theory, to inflame juror anger – the biggest driver of runaway jury verdicts. Anger results in outrageous awards based in fear that fuel seemingly unlimited non-economic claims. In doing so, plaintiffs’ lawyers are driving higher and more frequent Nuclear Verdicts®. This article discusses two techniques plaintiffs’ lawyers use to incite juror anger toward corporate defendants and the methods for defusing juror anger, combatting these tactics, and stopping potential Nuclear Verdicts®.
The first technique involves questioning corporate defendants about safety both at depositions and at trial. Plaintiff’s lawyers will ask the corporate official – perhaps even a safety director at a company – about safety itself.
“Isn’t safety the most important thing in your job?” If your client answers yes, your client has now raised the standard of care from that of a reasonable person under similar circumstances to that of the safest person under the circumstances of the case. This results in your client creating a standard that cannot be met. The occurrence of an accident, by definition, means safety was not paramount.
For that reason, you must have your corporate client always answer the question about safety being the most important thing in the negative. The corporate representative should be well-versed in this line of questioning and should respond by acknowledging that while safety is important, it is never the most important thing. When your client claims safety is not the most important duty they have, the plaintiff’s lawyer will respond with disbelief.
Have your client point out that if safety was the most important thing, jurors would not drive to court to fulfill their jury duty because if they drive their cars, they are technically creating danger on the roadway. In a similar way, the judge would be creating a danger by driving to court.
No, trials are important and, therefore, safety is not the most important thing, but an important thing. Have your client point out that a trucking company, for example, delivers medicine for the sick, food, health care supplies, and books for children to use for school studies. Have your client point out it is crucial these things are made available, by truck, in our society. Safety is important, but your truck fleet is never safer than when the fleet is parked and not delivering anything.
These simple strategies can be used to point out the fallacy of the false standard of care the plaintiff is trying to create and can slay the Reptile! Your corporate clients must be fully vetted on these issues and must know how to answer the questions. If they agree with plaintiff’s counsel that safety is the most important issue, the case is over. Go ahead and settle.
Give a Number!
A second tactic plaintiff’s lawyers use to create anger in jurors and produce huge verdicts is attempting to anchor the prospective jurors at high potential numbers for the jury verdict. They do this by asking one simple question during jury selection: “If the facts and the law support a finding of $40 million in this case, could you return a $40 million verdict?” Jurors will respond – some will say they could not, and some prospective jurors will question the extent of the injuries. The plaintiff’s attorney will immediately ask the judge to remove these jurors because they are biased against the plaintiff.
A better approach to dealing with these issues is to object when the plaintiff lawyer attempts to set a high anchor number. When the plaintiff’s lawyer asks if the law and the facts support an award of $40 million, you must immediately object, then go to sidebar, with the court reporter, and object to the same. You must point out plaintiff’s attorney is trying to anchor the jury at a higher amount and explain that if this juror answers no, plaintiff’s attorney will then turn around and argue to the court this juror is biased against his client.
What this does is create a venire of potential jurors who have already told plaintiff’s attorney they can return a $40 million verdict if the facts and the law support it. You must remind the judge you should have a chance to question this juror and other jurors prior to anyone being removed from the panel.
Make a record. Move for a mistrial. Be a bother. Point out to the court that haste does make waste and that a decision by the judge, without a full opportunity for you to question the witness and to otherwise influence the venire as the plaintiff is doing, is bias and is improper. Lastly, if the plaintiff is upset at this juror, explain that the plaintiff’s attorney can certainly use one of his peremptory challenges – rather than having the court make a determination someone is biased and removing them for cause based on a flimsy argument the juror will not pre-commit to an award of that magnitude.
During voir dire, ask the jurors questions with reference to the value of the case, anchoring them to a lower award amount. You might say something to the effect of: “Mr. Smith, the plaintiff lawyer, asked you if the law and the facts supported an award of $40 million, could you award $40 million. However, should the law and the facts in this case support a verdict in the amount of $700,000.00, could you return a verdict for the reasonable sum of $700,000?” Anchor them at the lower figure. Too often, defense lawyers don’t do anything to give a contrast to these jurors – jurors who have no idea as to the value of a lawsuit. As far as these jurors know, they are doing you a favor when they return a verdict of $10 million.
But do more. Also, discuss with the jury what it takes to start a successful business. Ask them about what that business would be. For example, if they answer “trucking company,” you can tell the story of how your client started his business with two trucks, had to take out a loan to buy the second truck, and hired his brother-in-law to drive. Talk about tough times! When bills were mounting – discuss how scary that was. Give background as to what it takes and what a person must do to run a successful business. If you are good, a bit lucky, you do a good job for your clients, and have a good safety record, maybe you can achieve what your corporate client was able to achieve.
Furthermore, do not hesitate to speak to the charitable conduct of your client during jury selection and opening statement. If your client is involved with performing charitable works, ask the juror if they have any experience with that charity. Ask that juror if her employer is involved in charitable giving. Do what you can do to make sure the jury is thinking – not only about what it takes to run a successful business, but also, about what your client is doing with their money after they earn it.
The plaintiff’s bar is very aggressive and is doing what it can to create anger in jurors. As defense lawyers, we must do our part to eliminate anger in jurors, and point the jury towards thinking, rather than emoting.