Advisen Front Page News
- Monday, December 6, 2021
Nuclear verdicts continue to be fueled by sympathetic, and now angry, juries
Advisen
Nuclear verdicts continue to be fueled by sympathetic, and now angry, juries
By Chad Hemenway, Advisen
When it comes to large, “nuclear” settlements and verdicts, if there was any hope that the last year during a pandemic would give the pharmaceutical industry a reputational makeover, or that the public would continue seeing truckers as heroes, the answer is “an unequivocal no.”
“Nuclear verdicts are absolutely on the rise,” added Shari Beliltz, CEO of Shari Belitz Communications and a litigation consultant, during the Big Nasty Claims webinar sponsored by Allied World and hosted by Advisen, a Zywave company.
Belitz said the public – prospective jurors – have less trust in corporations and science, as seen in recent controversaries over lockdowns, mask and vaccine mandates, supply-chain frustration and the so-called great resignation.
Fear is guiding emotional reactions and decisions following the pandemic as was observed following events such as 9/11 or catastrophic hurricanes. As a result, juries are “more likely to punish defendants,” with large awards also influenced by increases from inflation and the rising cost of a single fatality, Belitz said.
Evidenced by social media and the news, Americans are “on edge,” added Robert Tyson Jr., managing partner of Tyson & Mendes. “The last thing you want deciding your case are edgy people prone to be scared and angry.”
Tapping this anger – in addition to sympathy – is a newer strategy by plaintiffs’ attorneys, said Tyson.
“Nothing gets a case to a nuclear verdict like anger,” he said. “They are trying to get the jury angry at us.”
The manner in which cases are defended doesn’t help, added Timothy Capowski of Shaub Ahmuty Citrin & Spratt’s Litigation/Appellate Strategy & Advocacy Group. Capowski said discovery and strategy often begin with defense counsel from insurers within the primary level of an insurance tower but they are not necessarily “eager to defend a case well out of its range.”
“The parties with the most to lose (excess carriers) have the least control,” Capowski said. Then, late in the case, attorneys from the excess layers of insurance are forced to fill holes in discovery and strategy.
“Ultimately no matter how good they are, the outcome is never as good as if they’d been handling the case since its inception,” said Capowski, who added that the optics of the 11th-hour change in counsel look bad to the jury, and lead it to think there must be problems with the defense.
To stop the proliferation of nuclear verdicts, Belitz said success begins with deposition preparation, mock trials, and storytelling development.
“We do not win cases at trial,” she said. “We win them in sweatpants, getting ready to prep a witness. They are won through early grunt work. The better your witness performs, the more leverage you have in a case.”
Clients need to be prepared to answer lines of questions meant to appeal to the jury’s anger and sympathy, Belitz said.
The panel said one disadvantage from the defense side is the fact plaintiffs’ attorneys regularly share tactics. Capowski said defense attorneys should “take a cue from the plaintiffs’ bar” and “stop hoarding” information.
