WHAT IS THE MOTIVATION FOR “NUCLEAR VERDICTS”

WHAT IS THE MOTIVATION FOR “NUCLEAR VERDICTS”

There have been a number of studies and publications by the defense and insurance interests about the trend of large verdicts commonly labeled by them as “Nuclear Verdicts. The information is of interest to plaintiff lawyers. Here are some examples of this kind of information.

https://www.propertycasualty360.com/2023/07/21/what-are-nuclear-verdicts-and-why-are-they-occurring/

Nuclear verdicts are a relatively new phenomenon in the insurance industry. The term “nuclear verdict” refers to any court award or settlement that is higher than expected, but legal experts officially define a “nuclear verdict” as one that exceeds $10 million. These verdicts often include disproportionally large non-economic damages awards, but the real hallmark of nuclear verdicts is juror anger.

A large verdict is often a jury’s way of making “an example” out of a defendant to take some power back and slow this trend. The challenges of the pandemic years have also illustrated bad behavior on the part of some corporations by exploiting inflation, supply chain problems and staffing shortages, as well as appearing to use the pandemic as an “excuse” to provide poorer/lesser/more expensive services. The result is that many jurors extrapolate these examples as applicable to most, if not all, corporations, leaving a bad taste in their mouths. Anger towards corporate behavior like this has become so prevalent in fact, that we now see legislative efforts aimed at dealing with these issues (for example, the “No Surprises Act” which limits or prevents surprise billing in the healthcare insurance industry).

Jurors’ anti-corporate attitudes are also driven by a growing sentiment among many U.S. citizens that things in the country are off track or going “in the wrong direction” (general unhappiness/discontent) as well as in response to the reptile strategy.

The nuclear verdict trend continues to be perpetuated as jurors hear about other cases with large awards; these once-extreme verdicts become normalized and begin to set a new standard for what juries consider to be reasonable, and the growth of the social media landscape has amplified this effect. This is particularly true as inflation continues to progress at a higher-than-comfortable rate for many jurors.

https://www.travelers.com/business-insurance/large/casualty/whats-driving-huge-jury-awards

There is a growing belief among society that companies should take full responsibility for the safety of their products and services, and workplace injuries no matter how impractical or costly, and ensure the safety of their products–even if the customer is injured while misusing a product.

A DecisionQuest study from 2018 that interviewed potential jurors really drives home how society views large companies today:

  • 88% of the respondents believe that companies should take “any and all precautions,” no matter how impractical or costly, to ensure the safety of their products.
  • 58% of respondents believe a corporation “always” has some responsibility for the injury, even if the customer is injured while misusing a product.
New Research from U.S. Chamber Shows Jury Awards Increasing in Size and Frequency   

The report, which looks at the trends, drivers, and types of cases leading to nuclear verdicts, found:   

  • Almost half of the nuclear verdicts in the report’s sample came from product liability (23.6%) and auto accident (22.8%) claims. 
  • Juries in state courts, rather than federal courts, produced most nuclear verdicts. 
  • California, Florida, New York, Texas, Pennsylvania, and Illinois hosted around 63% of the nuclear verdicts between 2010 and 2019.  
  • Third party litigation funding, lawsuit advertising, and plaintiffs’ lawyers’ courtroom tactics fuel the size and frequency of nuclear verdicts.  

https://www.zurich.com/en/commercial-insurance/sustainability-and-insights/commercial-insurance-risk-insights/risk-management-takes-aim-at-soaring-jury-verdicts

In an age of general corporate mistrust and one in which athletes and entertainers make hundreds of millions of dollars, lottery jackpots soar to a billion or more and social media influencers rake in millions, jurors aren’t restrained by the shock value of huge awards, Kirsh said. Pair that cultural shift with the boom in plaintiffs’ attorney advertising that touts the opportunity to land a jackpot award and the drivers of social inflation become clear, he noted.

https://www.courtroomsciences.com/blog/litigation-consulting-1/are-millennials-to-blame-for-nuclear-verdicts-279

Some insurers and defense counsel have proposed that one factor influencing nuclear verdicts is that younger generations do not value money in the same way that older generations do. Of course, it is likely that each generation, as they age, believes the younger generation does not value money as they should. At the same time, we found it worth testing this hypothesis and determining, scientifically, whether one generation is statistically more likely to award higher damages than another. The present authors collected data from 1,100 jury eligible individuals who served as mock jurors in personal injury matters during 2020. 

Generation alone is not likely to predict a juror’s leaning toward the plaintiff or the defense. The results of the analysis revealed that there was no statistically significant difference in damages when comparing generations. Thus, Millennials cannot be blamed for recent nuclear verdicts. This finding should actually be a relief given Millennials make up nearly a quarter of the population. Thus, if you tried to strike all Millennials during voir dire, you would need more peremptory challenges than are typically allowed!

Therefore, during jury selection, it is much more effective to identify jurors who are experiencing high levels of stress than to make strikes based on an assumption that one generation has a tendency to award higher damages than another. 

https://www.orrick.com/en/Insights/Groundbreaking-Jury-Research-Reveals-US-Jury-Attitudes-in-a-Polarized-Society

Jury pools have changed dramatically. Today’s jurors are younger, with Generation Z (26 years old and younger) serving in higher numbers than ever before while jury service from all other generations is in decline. Today’s jurors reflect our more polarized society – with more firmly held beliefs on politics, social causes, and perceived injustices than in the past. They are also more likely to act on those beliefs by delivering their own sense of justice.

The result? An explosion of “nuclear verdicts,” which are verdicts greater than $10 million. In many instances, these verdicts include huge sums for pain and suffering and massive economic damages that appear to be intended to “send a message” to a perceived wrongdoer, even when no punitive damages are awarded massive economic damages that appear to be intended to “send a message” to a perceived wrongdoer, even when no punitive damages are allowed

Orrick’s trial team surveyed more than 1,000 potential jurors from jurisdictions around the country, including the jurisdictions that are home to the largest verdicts. The results of this survey provide key insights into best practices for connecting with today’s jurors.

  • Only 48% of jurors trust courts today, compared to 67% pre-pandemic
  • Anti-corporate sentiment has doubled from 27% pre-pandemic to 45% today
  • 41% of jurors admit to trusting science less than they did before the pandemic
  • Jurors admitting bias against police has tripled from 11% pre-pandemic to 36% today
  • 17% report no confidence at all in the courts, compared to 8% pre-pandemic

Consistent with declining trust in institutions, jurors are increasingly willing to turn into activists and take the law into their own hands.

  • Jurors who believe “the current laws are outdated and applying them does not consistently serve justice”  52%
  • Jurors who think an “important function” of juries is to “send messages to corporations to improve their behavior 58% – 62%
  • Jurors who believe in using punitive damages to “punish” a corporation 69% – 77%

Jurors are also more willing to make snap judgments, even when they know nothing more than who the parties are. Before the pandemic, when asked hypothetical questions about who they would favor in a lawsuit in the absence of any specifics about the case, most potential jurors said they would remain neutral. After the pandemic, most jurors pick a side, and overwhelmingly side with plaintiffs.

One of the most pronounced trends in the data, across all of the studies is a general lack of trust.

  • Only 48% of jurors trust courts today, compared to 67% pre-pandemic
  • Anti-corporate sentiment has doubled from 27% pre-pandemic to 45% today
  • 41% of jurors admit to trusting science less than they did before the pandemic
  • Jurors admitting bias against police has tripled from 11% pre-pandemic to 36% today
  • 17% report no confidence at all in the courts, compared to 8% pre-pandemic

Consistent with declining trust in institutions, jurors are increasingly willing to turn into activists and take the law into their own hands

  • Jurors who believe “the current laws are outdated and applying them does not consistently serve justice” 52%
  • Jurors who think an “important function” of juries is to “send messages to corporations to improve their behavior”  58%
  • Jurors who believe in using punitive damages to “punish” a corporation 62%

Jurors are also more willing to make snap judgments, even when they know nothing more than who the parties are. Before the pandemic, when asked hypothetical questions about who they would favor in a lawsuit in the absence of any specifics about the case, most potential jurors said they would remain neutral. After the pandemic, most jurors pick a side, and overwhelmingly side with plaintiffs.

Today’s jurors are more polarized and more willing to allow their biases to influence their decisions. But they also have more in common than you, or they might think. Most potential jurors agree that there are “universal” concepts of right and wrong, which have “clear and consistent distinctions” between them. Most potential jurors also agree that “making an emotional connection to the subject matter and the people involved in the trial would be important” before they could make “a fully informed decision.” We believe that winning trial teams of the future must be able to create these emotional connections, giving jurors comfort that the desired verdict meets their understanding of the “right” outcome.

CONCLUSION

These trends have importance in how plaintiffs should present their case. Understanding today’s juror is even more important, given this information, than before.

3 thoughts on “WHAT IS THE MOTIVATION FOR “NUCLEAR VERDICTS”

  1. Fascinating information, Paul. It’s so hard to generalize regarding jurors and their proclivities, but it does seem that we are hearing about better results at trial, post-pandemic. Thank you for sharing this.

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