As Nuclear Verdicts Become More Frequent, Attorneys Are Turning to Mock Trials & Focus Groups

Attorneys in recent years have increased their use of jury consulting services and focus groups, a trend that some Philadelphia-area court watchers see as driven by the growth of so-called “nuclear” verdicts, where a plaintiff is awarded hundreds of millions, or sometimes even billions, over personal injury claims.

“A lot of people are looking at these claims and saying, ‘This is a bad one. What can we do to avoid these surprises?’” said Rachel York Colangelo, the national managing director of jury consulting at Philadelphia-based Magna Legal Services. “There’s no need to be surprised.”

According to Colangelo and numerous civil attorneys, lawyers on both sides have been increasingly using jury consulting services, including mock trials, targeted questionnaires and focus groups, both online and in person. Attorneys have also reportedly been using the services earlier in the life of a case to help both with settlement talks and development of trial strategies.

Or, in the case of the defendants and carriers, to help get a grip as even the more run-of-the-mill verdicts are beginning to creep upward.

“It seems like a lot of those types of clients are saying something’s going on right now with more and more of these nuclear, outrageous verdicts,” Colangelo said.

The most obvious verdicts that come to mind are in the products liability arena, where a Texas jury last year awarded $4.7 billion to 22 plaintiffs injured by talcum powder, and where, in May, a California jury hit Monsanto with a $2 billion verdict over its weedkiller Roundup—a verdict that was later slashed to $86 million. However, according to Colangelo and others, defendants are also increasingly being surprised in smaller, more routine cases—in particular in trucking litigation—and so they have been increasingly turning to jury consulting services, like those provided by Magna.

Ricci Tyrrell Johnson & Grey attorney William Ricci, who focuses on products liability defense work, said he has noticed that excess carriers and self-insured defendants have increasingly been requesting attorneys perform mock trials, especially when facing a catastrophic injury case. He agreed that a “spike” in big-money verdicts appears to be fueling the trend.

“If you have an eight-figure demand in a catastrophic case in a city like Philadelphia, and it’s not the type of case you’ve been dealing with, there’s much more of a likelihood where the client, or the excess carrier, or both, will say, ‘Let’s consider getting a focus group,’” Ricci said.

Theodore Schaer of Zarwin Baum DeVito Kaplan Schaer Toddy, who handles cyber liability, as well as products liability and trucking litigation cases, said that, with an increasing number of high-profile verdicts, defendants are eager to confirm their valuation of a case, so they can make a more informed decision about whether to take the suit to trial.

“The more information you have, the better,” Schaer said. “There are always outlier juries, and that’s the risk of going to trial. But I think that, certainly on the defense side, over the last couple of years, some of these astronomical verdicts have led professionals to really use all the tools in their arsenal.”

Along with the more traditional mock trial services, attorneys are increasingly holding focus groups and even using geographically and demographically targeted surveys to help with everything from valuation to trial strategies. These more piecemeal evaluations of cases, if done early enough, can even help attorneys hone in on evidence and theories while discovery is ongoing.

Colangelo said mock trials and focus groups, which used to always be done in rented conference spaces, can now be handled online, where mock jurors are streamed live exhibits and participants can interact with each other through interactive multimedia platforms. Attorneys have also increasingly been using online surveys, she said, where as many as 100 people from a given venue are given prerecorded narratives about a trial, and then asked to answer a series of questions.

“It’s just we’re not looking at jurors through a one-way mirror. We’re observing them online,” Colangelo said. “The feedback is very similar. The deliberations are just as robust.”

Those technological developments have also allowed jury consulting companies like Magna to provide the services for a much smaller fee, which has further fueled the trend.

Although plaintiffs firms are not subject to the same pressures as the defense bar, personal injury attorneys are also increasingly using mock trial and focus groups.

Plaintiffs attorneys said that, while they use consulting companies like Magna to perform more formalized mock trials and focus groups, they typically only use those services for bigger cases because of their costs.

However, numerous plaintiffs attorneys said they are increasingly putting on their own focus groups.

McLaughlin & Lauricella attorney Slade McLaughlin said he uses focus groups in any case where alcohol might be involved, or if there are serious questions of comparative negligence. Attorneys noted they sometimes perform focus groups on a single issue or piece of evidence in a case, and may perform multiple focus groups on a single case.

“What it does is it opened my eyes up to issues I didn’t even know were there,” McLaughlin said, noting that in one case that resulted in a $20 million award, he got the idea to ask for punitive damages after a focus group suggested that the defendant’s conduct had been “outrageous.”

“Lawyers look at a case one way, and lay people look at cases another,” he said.

These focus groups, according to attorneys, often involve renting out a conference room, putting an ad in the paper for prospective mock jurors, providing catered lunches and paying the jurors. Ostroff Injury Law attorney Jon Ostroff said he often does it under the guise of a psychological study so the mock jurors are not swayed by the fact that the attorneys arguing the issues are also paying for the event.

He said he uses them to help guide in the development of the case, giving a brain injury case as an example.

“We might get caught up in the cognitive deficits, but it might be something more subtle that would matter to a jury,” Ostroff said. “Sometimes the loss of life’s pleasures can be more impactful.”

Carol Shelly of Shelly Law Offices in Doylestown said she does a focus group session at least once a month, where sometimes issues from multiple cases are heard. Shelly added she likes to do focus groups early on in a case, even before taking key depositions.

“It makes me understand my cases better. It makes me prepare them earlier than I would otherwise. It makes me see the pitfalls in my case early,” Shelly said. “It’s hard work, but it’s done nothing but made me a better lawyer.”

Attorneys from both sides also stressed a renewed need to understand potential jurors as the new generation of millennials have begun to take more and more seats in the jury box.

“Jurors are different than they were 10 to 20 years ago,” Shelly said. “What they think is important is not necessarily what I think is important.”

This piece originally appeared in The Legal Intelligencer on August 27, 2019.

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How do human emotions play a role in decision making? That’s a hot-button question vexing board room executives that are facing steep jury verdicts.

Described as “nuclear,” jury awards are reaching into the tens of millions — and even billions — of dollars, particularly in cases where that human contemplative decision making is prevalent. That is because humans are the only decision makers who can act based on emotion — emotions that can often amplify the after-effects.

Such a decision was exemplified in an Oklahoma courtroom last month.

A single-judge court hit Johnson & Johnson with a nuclear verdict in which they were ordered to pay $572 million to the state for their contribution to the opioid crisis. The epidemic has claimed the lives of more than 300,000 Americans since 2000.

Family members of opioid overdose victims embraced the ruling in hopes that the decision would prevent others from succumbing to the drug in the future.

“It’s kind of punitive in a way, because for the most part, it’s to compensate the municipality for having to support these people for their addictions and their habits,” said Tanya Branch, partner at Quintairos, Prieto, Wood & Boyer, P.A. of the Oklahoma verdict.

“This is what happens when the theme is corporate greed and raking in huge profits at the expense of everyday people. On the other hand, you could say that the defense attorneys did an excellent job keeping the numbers in check, considering the state claimed damages in excess of $17 billion for what will essentially be the state’s ‘clean-up’ costs, for addiction programs and related funding,” she said.

“Unless dealt with in jury selection by experienced, battle-tested defense attorneys, drug companies may be faced with these types of outcomes nationally.”

The national outcomes that Branch is referring to include 2,000 other claims filed against Johnson & Johnson. The conglomerate’s boardroom is likely in a frenzy, now rushing to see exactly how much liability they might be held accountable for.

“We have a huge conglomerate that has been engaging in allegedly bad behavior,”said Rachel York Colangelo, managing director of jury consulting for Magna Legal Services. “But like in the opioid cases, there are so many they are involved in around the country that if they went around and just settled all of them, that’s a huge payout.

“That’s the gamble that these companies take. We have a lot of people say after cases like this, ‘How did they ever think they were going to win?’ ” said York Colangelo.

“My response is that they didn’t expect to win that case. But they needed to find out, ‘How bad could it be?’”

In a rising number of cases, the answer to that question: Nuclear.

So What Makes a Verdict ‘Nuclear?’

A nuclear verdict is an award that consists of $10 million or more — depending on the size of the company, it could be less — that results in extreme loss to the debtor.

Johnson & Johnson is a major corporation that can afford the verdict that was issued, but for other companies, gray areas of liability present major risks and have led to a rising number of these nuclear jury awards.

“Most of the time, even if the injury is not catastrophic, the verdict can be,” said Branch, speaking from the defensive perspective of these large municipalities.

One of the reasons for the increase in nuclear jury awards is the connotation that the public has regarding large corporations, as well as the idea that verdicts should sustain the plaintiff for the remainder of their lives and provide monetary consumption for suffering.

“A lot of jurors see the defendant as having a deep pocket, otherwise, why would they be sued?” said Branch.

“If a juror sees your client as a deep pocket, they’re not going give you a fair shot at defending the case.”

For smaller companies that do not have as much monetary backing, mitigating the risk of nuclear verdicts is imperative, otherwise, their entire operation could implode.

That’s where jury consulting comes in, working to minimize the risk and level the legal playing field.

Early Intervention is Key

For trials like that in Oklahoma where there’s an element of human loss or suffering, companies must perfect their strategies in order to sway the jury towards the defense…and pick the right jurors.

If a case is headed for trial and the possibility of a nuclear verdict looms, jury consultants can often convince companies to accept responsibility without liability.

This way, the defendant can soften the jury with their admission of their wrongdoings but still defend their case and weaken their punishment.

“Most of the time, even if the injury is not catastrophic, the verdict can be,” said Branch, speaking from the defensive perspective of these large municipalities.

One of the reasons for the increase in nuclear jury awards is the connotation that the public has regarding large corporations, as well as the idea that verdicts should sustain the plaintiff for the remainder of their lives and provide monetary consumption for suffering.

“A lot of jurors see the defendant as having a deep pocket, otherwise, why would they be sued?” said Branch.

“If a juror sees your client as a deep pocket, they’re not going give you a fair shot at defending the case.”

“Everyone assumes you get called in for trial and that we just come in and pick the jury. There’s a lot that goes into consulting before you ever get to that point,” said Colangelo.

Know Your Crowd

Some of the services jury consultants can provide before the trial include mock trials, focus groups, surveys and jury selection.

According to Branch, picking the right jury helps to attain the desired outcome.

“You have to have a very clear understanding of the type of jury you’re looking for,” she said.

“While you expect people to be fair and impartial, a lot of people have certain biases that if you don’t get those out of them, they’re not going to tell you. It’s your job as the attorney to figure out which juror isn’t being completely truthful about their history and their background.”

Because “judges are human, too,” as Colangelo explained, even perfect jury consulting can’t completely eliminate the risk of nuclear verdict awards. The outcome of a trial can be shocking to even those who contributed to the guilty decision.

“Juries typically don’t expect nuclear verdicts,” said Branch, who says that sometimes the number of a monetary award can increase excessively depending on the age and injuries of the plaintiff.

But, like other decisions made from human emotion, some jury-awarded verdicts can turn out to be presumptuous, tentative or downright wrong.

Regardless of who is truly liable in a case, jury consulting proves that evidence is only as powerful as its presentation, and its delivery can be what disarms or detonates a legal bomb.

This piece originally appeared on Risk & Insurance on September 13, 2019.