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.