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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