Last year, Johnson & Johnson was hit with an $8 billion verdict by a Philadelphia jury, an amount that exceeded the gross domestic product of more than sixty countries (included Monaco, Belize, and Greenland) in that same year, according to data from the International Monetary Fund. In fact, Johnson & Johnson has become the posterchild for what many in the legal industry refer to as “nuclear verdicts,” but J&J is not alone. Jury verdict awards in the hundreds of millions and billions are becoming more and more common in American trials. The impact of this upward trend in verdicts is often referred to as “social inflation” and has become a popular topic that has understandably caused panic within the insurance industry.
Social inflation and nuclear verdicts indisputably demonstrate that a standard economic analysis for assessing risk in litigation is no longer sufficient for accurately predicting potential risk. Under a standard economic analysis, the value of an injury such as quadriplegia for a plaintiff should be no different in 2019 than it was in 2007 for a similar plaintiff beyond the adjustment for standard inflation (and certainly no different from a similar injury in a similar 2019 case), but that is not what we are seeing with jury verdicts. Instead, they are wildly erratic and inconsistent. In short, the data on jury verdicts demonstrates irrationality at work. Fortunately, the study of jury economics (a subdivision of behavioral economics) helps explain this phenomenon, highlighting what renowned psychologist Dan Arriely calls the “predictably irrational” behavior of today’s juries. Continue reading →
One of the most important sayings in our industry is that a verdict is a product of what jurors choose to talk about and focus on most during deliberations. Focus in deliberations is zero sum. If jurors are talking about one thing, they are not talking about something else. Every case has several different focal points, and those focal points tell different stories about the case. Think about the example of the film Rudy about Rudy Ruttiger, the kid who desperately wanted to play football at Notre Dame. We could focus on the game itself, which tells a different story because of the fact that the game he played in was largely a meaningless game and the game was already over in terms of score by the time he entered the game. If we focus on the game, few powerful values emerge and it’s a story that no one would want to watch a movie about.
But if we focus on Rudy and his story of struggle, we get a very different kind of story. We get an underdog we can root for and a story of triumph that is hard to forget. In both of these situations, the facts are the same, but what we focus on to make sense of those facts changes.
This is why it is so important to think about your focal point before you do anything else in your case. What is it you want jurors talking about most in deliberations? What focal point creates the most momentum for you in deliberations? Once you answer these questions, you can develop your themes and story. Continue reading →
A key milestone in any jury deliberation is the selection of the process for deliberations. At some point early in the deliberations, a process for the discussion is established. Jurors either verbally decide on a process or they simply default to one. By process, I mean the way in which they discuss the issues in order to reach a verdict. There are many different ways they can approach the discussion of the issues, and that process is important because it fundamentally influences the outcome.
For example, if the process begins with everyone going around and venting about the case in an open-ended fashion, that process makes the jurors’ emotions the most important part of the case…or at least establishes those emotions as initially important, which creates momentum for the side that emotions favor in the case. At that point, the emotions start to serve as filters for what evidence and testimony the jurors accept and reject. Conversely, if the jury starts the discussion by focusing on the verdict form questions and the jury instructions, that establishes that the law and things like the burden of proof are most important, which creates momentum in a potentially different direction. These are just two examples of potential starting points in the process, but there are many other factors to the process. Continue reading →
It’s hard being in a place where you don’t speak the same language as those around you. Where everyone dresses differently. Where you don’t understand their values or what causes them to act in certain ways. It can make you feel overwhelmed, vulnerable, and make you long for home. Am I talking about traveling abroad? Not quite. I’m talking about millennials on your jury.
Millennials are a hot topic among lawyers these days, mainly because their presence on juries around the country continues to grow. A lot of people like to adopt a “kids these days” mentality and argue that there is something wrong with millennials and their worldviews. However, we have looked at the data, and there are not that many differences when it comes to common legal attitudes. For example, 63% of both millennials and non-millennials agreed that, “there should be limits on how much money a jury can award to a plaintiff in a lawsuit.” 87% of non-millennials agreed with the statement that, “too many people file lawsuits in an attempt to get money they do not deserve,” compared to 75% of millennials. Continue reading →
Why do jurors talk about some testimony in deliberations, but not other testimony? Why do jurors start deliberations by talking about an issue that is not related to the first verdict form question? Why do they seem to want to talk about the one thing you repeatedly told them was irrelevant? These are important questions, and the answers may help attorneys exert greater control over what jurors spend their time talking about in deliberations. The strategic advantage that would come from this is difficult to overstate. After all, the cliché in our field is that a verdict is a product of what jurors choose to talk about most in deliberations. What they choose to talk about creates momentum for and against the parties in the case, which can often drive the final verdict.
The fundamental idea here is that, when jurors go back into deliberations, they have dozens and dozens of things related to the case that they could potentially talk about. Regardless of what they choose, they are not going to talk about everything. It reminds me of a case not too long ago where I had the opportunity to interview the jurors after the verdict came in. It was a four-week trial and over 1,000 exhibits went into evidence. The jury deliberated for almost three days. After all that deliberation, I asked them how many exhibits they looked at. Eight! Out of the thousand exhibits that were entered, they looked at eight before arriving at their verdict. The discussion in deliberations is similar. When all is said and done, the jury will have only discussed a fraction of the issues they could or should have discussed during their deliberations. Continue reading →
Despite what Allen Iverson might say (search “Allen Iverson” and “practice” on YouTube if you do not get this reference), practice is essential to the successful development of any skillset. In competition, competitors get better by practicing. This is why it is surprising to me that most attorneys do not practice their voir dire before the day of jury selection, particularly when so many also preach about primacy theory and the need to make a good impression right off the bat.
Statistics indicate that fewer and fewer cases make it to trial, which means most attorneys have had few opportunities to conduct voir dire. Even for experienced attorneys, it may have been years since the last time they picked a jury. Additionally, jury selection is not something that comes natural to most attorneys as it is the opposite of what most attorneys are used to doing – arguing as opposed to listening. Many attorneys admit that they do not like voir dire and that it is the one thing about trial that makes them nervous. The anecdote to all of this is PRACTICE. Practice will make you better. Continue reading →
By Thomas M. O’Toole, Ph.D. and Scott Herndon, M.A.
In 2016, Oxford Dictionaries chose “post-truth” as its word of the year. It defined it as “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” This concept has long been recognized in the fields of psychology and persuasion. Research has consistently shown that people tend to put beliefs before facts. In other words, decision-making often starts with what we want to believe, followed by efforts to seek out evidence that confirms what we want to believe, while downplaying, ignoring, or rejecting evidence that goes against those beliefs.
For this reason, misinformation is surprisingly resilient to correction and retraction. In fact, some studies show that efforts to correct misinformation actually reinforce the misinformation itself. This creates an interesting problem for litigants at trial. While it is primarily a problem for defendants, many litigants find themselves struggling to undue undesirable first impressions (or misinformation) that were created in opening or early in the trial. We do not intend to suggest that misinformation is synonymous with undesirable first impressions, but the resulting problem remains the same. Here are ten strategies for undoing undesirable first impressions or misinformation that we have identified from the research and our own experience working with hundreds of juries and mock juries across the country. Continue reading →
We quickly learned that Richard was a horrible juror for us in the trucking accident case we were working on. We had decent evidence that the plaintiff had fallen asleep behind the wheel and veered into our truck, but Richard wasn’t having it. As soon as this issue came up in deliberations, he jumped in, stating, “I don’t care what he says. We have all been on the road with truck drivers and they routinely fly over into the other lane without any notice at all.” This quote was so powerful because what Richard was really saying was, I don’t care what the evidence in this case is because I’m going to go with my own personal experiences instead. Fortunately, this was only a mock trial, but it highlights an important reality about jury decision-making: it is an ego-centric process, and the research shows it is only getting worse with the emergence of the millennial juror. Continue reading →
One of the often-overlooked features of the social media revolution is how it has changed the consumer/product dynamic. In this era of Facebook, Twitter, YouTube, and the long list of other social media sites, we are no longer the consumers; we are the product. It is our information and attention that drives profit in these industries. Companies like Facebook observe our online conduct and sell that data to other companies. Consequently, incredible attention in recent years has focused on how to keep users engaged in information consumption, which is what we do when we visit these technology platforms. Continue reading →
Finding the little fact that changes the case narrative can feel like finding a needle in a haystack at times, which is why it is always good to have a fresh pair of eyes.
By Thomas M. O’Toole, Ph.D.
Some of the best case strategies that we have developed with our clients over the years resulted in the other side having to defend something at trial that they never realized they would have to defend…something they took for granted. This is a strategy I learned during my college debate career (yes, I was a college debate nerd…but you would be surprised how many of your peers in your industry were as well). In my days of college debate, one of the most effective strategies was something called a plan-inclusive counterplan, or a “PIC” for short. The idea was that after the first (affirmative) team made their argument to start the round, the other team agreed with everything that side said except for one small, but incredibly important detail, something they never realized they might have to defend…something they took for granted. Continue reading →