As Big Verdicts Pile Up, Attorneys Are Increasingly Turning to Mock Trials, Focus Groups

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 foc