By Thomas M. O’Toole, Ph.D.
Plaintiffs’ attorneys approach case development and presentation in a multitude of both predictable and unpredictable ways, but none is more dangerous to defendants than what I call the “referendum” strategy. In short, the “referendum” strategy is a clever strategy that, when successful, allows plaintiffs to sidestep their burden of proof under the law and instead, create what is essentially a reverse burden of proof for the defense. It shifts the focus of the case to the defense and forces defendants to cope with a barrage of seemingly-disorganized attacks. In reality, what can sometimes seem like disorganization and foolish decision-making by a plaintiff’s attorney is often a very calculated attack. The results can be devastating. The “referendum” strategy is often the source of headline-grabbing or record-breaking damage awards.
So what exactly is a “referendum” strategy? The best way to understand it is to look at its goals, which are three-fold. First, the “referendum” strategy is designed to shift the focus of the case to the defendant. This strategy relies on the core principle of jury decision-making, which is that a verdict is a product of what jurors decide to talk about. In any case, the trier-of-fact’s focus over time becomes critical in nature. This is a natural, human tendency. The more time we spend with something, the more we tend to become critical of it and start to pick at it (marriage counseling was born out of this human tendency). If jurors are going to spend hours discussing something in deliberations, these hours are going to consist of critical discussion. Jurors do not spend hours praising something or someone in deliberations, particularly when we are talking about a large, corporate defendant. They spend hours criticizing and picking apart things. This is why defense strategies rarely, if ever, want to place the focus on the defendant.
The second goal of a “referendum” strategy aims to develop anger and frustration. Jurors award plaintiffs substantial sums of money when they are angry or frustrated at a defendant, feel like the defendant “doesn’t get it,” or simply do not like the defendant. Sympathy does not drive large damage awards. Anger does. Anger and frustration motivate jurors to want to send a message. It does not matter whether or not punitives are an option. Jurors simply fit the “punitive” award into an available damage category, which is often noneconomic damages or pain and suffering.
There are two common ways in which plaintiffs’ attorneys generate anger or frustration. First, they focus on patterns of behavior or the identification of seemingly cheap and simple actions that, in hindsight, would have “easily” prevented the injury suffered by the plaintiff. I call this the “should have” list and it is a staple of the “referendum” strategy. This list, understandably, seems utterly ridiculous to the defendant, but comes across as reasonable to jurors, particularly when the plaintiff has suffered severe injuries. The items on the list, in hindsight, seem so simple and easy to implement
Aside from the “obviousness” of the list items that comes with hindsight, this list is also effective because it spreads the defense thin by forcing it to defend against a long list of random items that may be completely unrelated. In other words, the defense’s affirmative theory of the case gets drowned out by all of the time it has to spend addressing each of the various list items. This can be devastating because it means the defense spends most of its time in the case in a responsive posture where it is trying to explain itself. It prevents the defense from ever being able to effectively switch the focus of the case back to the plaintiff.
The second way anger or frustration is generated is through the poor performance of a key defense witness. The performance of the witness often trumps the substance of his or her testimony. This does not mean the substance of his or her testimony does not matter or should not be discussed. Instead, it simply means that we conclude a lot about people based on our interactions with them and our observations of how they carry themselves and interact with others.
The performance of the corporate representative, for example, tells the jurors a lot about what kind of company the defendant is. The manager who was responsible for the facilities at the time of the incident tells jurors a lot about whether or not this was the kind of facility that was clean, organized, and reasonably free of hazards. The performance of the product developer tells the jurors a lot about how much effort and care goes into designing a safe product. These performances are critical to the success or failure of “referendum” strategies.
The final goal of a referendum strategy is to create ambiguity that helps the plaintiff overcome procedural hurdles. The procedural hurdles are often one of the areas of weakness for the plaintiff. Perhaps they have strong evidence on one or two elements of the claim, but they typically come up short on one or two as well. This is where ambiguity and confusion helps them. In short, when the plaintiff effectively shifts the focus of deliberations to the defense and generates sufficient anger and frustration, this allows plaintiffs to functionally sidestep its obligations under the law. It does so by generating a general “feeling” amongst jurors that the defense has done something wrong, even if jurors cannot articulate the specifics of what the defendant did wrong. Sometimes, it goes as far as creating an implicit burden on the defense to prove to the trier-of-fact that it did not do something wrong. This provides the critical motivation that drives jurors to reverse-engineer the verdict form to accomplish the goal of delivering a verdict for the plaintiff.
The “referendum” strategy is extremely dangerous and has become the modus operandi of the most successful plaintiffs’ attorneys. This is for good reason. It taps into the reality of jurors’ psychology unlike other popular theories such as the reptile theory put forth by Keenan and Ball. The “referendum” strategy is extremely effective and defendants need to be aware of its use.