Boom – the verdict is in and it is explosive, shocking everyone involved. These verdicts are referred to “nuclear verdicts,” with the implication that they are both large and unreasonable. I read about this phenomenon regularly. It is a trend that frightens one side of the “v.” – the defense side, and emboldens the other side, the plaintiff’s. It was not long ago that the term was “runaway verdict.” Regardless of the term, much is written about certain large verdicts, verdicts which, according to what is written, came as a surprise to the defendants. There are many explanations, including public distrust of certain corporations. In addition, the plaintiffs’ bar works together in many ways, using whatever techniques they can to stoke the flames while, to large degree, the defense plays by more traditional rules about trial strategy, sometimes putting them in a reactive, not proactive, mode. As this trend has gotten notice, more strategies emerge, and tactics are explored – some in a new book on the topic. But, one thing that has struck me is the question, why were the defendants so surprised? I have to think that, in most high risk cases, the defense, and the plaintiffs, would have used trial consultants. If not, that’s a problem. But if so, what is causing the defense to be caught off guard? Stepping back, any party or attorney with a high risk case or a case of first impression should be doing mock jury research. High stakes cases often warrant multiple phases of research, using various methodologies, to slice and dice the matter in an effort to leave no stone unturned within whatever budgetary constraints exist. In my observations, a couple other factors may be at play. One is the failure by those involved in the case to be objective in their evaluation of the case. Too often, adjusters and defense attorneys have lived with a case for so long that they have become desensitized regarding the extent of the plaintiff’s injuries. And, we’ve often had as clients adjusters who seem cold and callous in general – something that may have come with the job. One adjuster, on a case involving child sexual abuse, commented to Melissa and me, “But the boy only got raped once…” Another adjuster with 25+ years of experience came to us once, announcing that he didn’t understand why he was going through the mock trial. He complained that his lawyer “made” him do it and that they had a 50% chance of winning the case and if they lost, it would probably cost only $500,000. Four mock juries later, with 100% liability against the defendants and verdicts of as much as $6 million, he came to appreciate the error of his ways. A $6 million verdict may not qualify as a nuclear verdict in most ways, but the chance of keeping one’s job after making a $5+million mistake is pretty low. The point is – test it! If the case is defensible, if the plaintiff’s attorney is being unrealistic, find out. It is much better to lose in a mock trial than a real trial!
When David and I founded Magnus in 1993, we used a slogan in our marketing materials, “Reducing Uncertainty.” We know, based on our experience in conducting mock trials, focus groups, and attitude surveys, that our research results provide our clients with information about which they would have never known without our help. Knowing this information reduces our clients’ uncertainty regarding their trial outcomes, or so we thought. It soon dawned on us that our slogan was not resonating with prospective clients because, as it turns out, many attorneys and insurance adjusters are certain they are correct about their assessment of their pending lawsuits, even if they have no data to support their beliefs. Thus, when these confident litigants go to trial, they are certain their side will prevail, although there is no basis for their confidence. When a so called nuclear verdict is reached by the trial jury, these attorneys and adjusters are surprised not because the jury did anything wrong, but because they were unprepared to take their case to trial. It is tough to be wrong, particularly when being wrong involves one’s client having to pay millions and millions of dollars in damages after being falsely assured they were going to win the case. The only shocking thing about nuclear verdicts, in my opinion, is the frequency with which I hear about the defense attorneys’ and adjusters’ surprise upon learning they lost their case, big. Every time I read about an “unexpectedly” large verdict, I ask myself why no one expected it. Did the defense attorney try to persuade the insurance adjuster to hire a company, such as Magnus Research Consultants, to pre-test their case, only to have the adjuster refuse to pay what would have been minimal costs to do so? Was the attorney too arrogant to admit he or she doesn’t know everything there is to know about jury decision making or human nature, in general and thus, never recommended jury research for the case? Were the plaintiffs’ attorneys more prepared than their opposition by doing everything they could do to help their client, including conducting mock trials, focus groups, or attitude surveys about the case? Or, was it a combination of events, such as poor case management, over confidence, and a penny wise/pound foolish mindset? Hmmm. My advice to attorneys and adjusters: Don’t get caught up in a situation that leads to a nasty surprise. Do your homework before trial, including retaining an expert on the human dynamics of litigation, so that you will be ready to provide the best possible representation of your clients.