It is the question on every litigator’s mind: What impact, if any, will the pandemic have on jury decision-making once trials resume? Will there be more goodwill towards businesses because of the economic toll the pandemic has taken? Will perceptions of a widening rich/poor gap perpetuate social inflation and nuclear verdicts? The questions go on and on and it is important to have answers to them. I expect that many organizations will purport to have those answers, but those answers might be misleading or flat-out wrong for one very important reason. Continue reading →
As the country starts to re-open and jury trials resume, it is our job to research and understand what impact the pandemic and the stay-at-home orders that lasted over two months in some states will have on how jurors evaluate liability and damages going forward. There are many ways to approach this kind of research. For example, we just completed on of the largest surveys we have ever conducted in order to get specific answers to some of the questions we know attorneys and general counsel will have. We are currently in the process of analyzing all of that data.
It is also important to look back in history to other significant events for points of comparison. Everyone I talk to immediately draws comparisons to the 2008 recession, which makes a lot of sense given the economic parallels. When I have suggested looking at September 11, many brush off the suggestion, arguing that it is simply not comparable. However, delving behind assumptions, it becomes clear that there are some very important connections that are worth examination. Continue reading →
Reptile has become a popular topic of discussion for attorneys across the country, perhaps because folks like myself continue to write about it. Most of us have witnessed the fall-out, whether it be panicked pleas for feedback on defense forums or pre-trial motions to preclude “Reptilian” tactics. I’ve written extensively on defense strategies to counteract Reptile, but the more important question is whether or not defense attorneys should even worry about it in the first place.
If we focus on the science alone, this discussion quickly ends. Keenan and Ball claim to have derived their theory from the work of Paul MacLean, a neuroscientist who did most of his work in the 1950s, 1960s, and 1970s. MacLean proposed the triune theory of the brain, a three-component theory of the brain. One of those components, under MacLean’s theory, is the reptilian complex, which houses our survival instincts. Unfortunately for MacLean, contemporary research has shown that many of his assumptions and conclusions associated with the triune brain theory are wrong. Continue reading →