Over the last year, the most popular question we have fielded from frustrated defense attorneys and general counsel is why damage awards have been rising since the pandemic. Verdicts in the hundreds of millions and billions are no longer the outliers they used to be, as legal news outlets such as Law 360 seem to report almost daily verdicts in these ranges. For many, the pandemic epitomizes a key turning point where our culture went from somewhat predictable to totally unpredictable. Yet, the research shows us that the reality remains the same, namely that jurors are predictably irrational, with new trends driving this predictable irrationality down the path of rising nuclear verdicts. Here are eight trends that help explain the recent rise in nuclear verdicts.
1. The loss of the pro-corporate tort reformer. The Republican Party changed significantly with the Trump administration. Like him or not, Trump built his campaign and presidency on distrust and conspiracy. Unfortunately, for corporate defendants, this has led to the disappearance of the conservative juror who was reliably pro-corporate and anti-lawsuit. In fact, a Pew Study released in November of 2022 showed that distrust of corporations among conservatives has rapidly outpaced that among liberals. The result is the loss of a pro-corporate voice in the deliberation room that has historically provided resistance to astronomical jury awards. Anecdotally, the SJC team has seen a shocking rise in conservative jurors wanting to “ring up” corporate defendants with astonishingly high damage awards.
2. Declining trust in institutions. While the November 2022 Pew Study highlighted a unique decline in trust among conservatives, many studies over the past decade have highlighted an overall declining trust in all institutions among the American Public, regardless of political preference. Practically, this means jurors are quick to assume the worst when the defendant is a large institution. They are quick to question motives, integrity, and honesty, and they are quick to embrace conspiracies. Most important, they are quick to question any evidence that challenges their critical view of institutional defendants.
3. The rise of the millennial majority. It was only a matter of time before millennials would become the majority on juries around the country and now they have officially aged in as they have hit their forties in recent years. Research overwhelmingly shows millennials are more likely to go nuclear in their verdicts than any other generation. In a recent article, How Millennials Became the Burnout Generation, Anne Helen Peterson highlighted how millennials were raised with extraordinary expectations and promise only to hit the job market at a time of economic collapse with record student debt and degrees that seemed to mean very little in the big picture. “Broken promises” and distrust consequently seem inherent to their life experiences, which get projected onto the cases in which they sit as jurors. The result is understandable and what all the research shows…millennials are much more likely to go nuclear.
4. Changing views of the value of money. Since the onset of the pandemic, the perception of the value of money has changed quite dramatically among the American public. Inflation reached levels we have not seen in four decades. As one study out of the University of Michigan put it, “Americans are paying more for worse stuff.” At the same time, corporations are reporting record profits with frequent media reports highlighting the extraordinary incomes of top corporate executives. On top of that, large verdicts and settlements have dominated the headlines such as the Fox News $787M settlement with Dominion or the $7B verdict against Comcast in Dallas Texas for the woman who was murdered by a Comcast contractor. All of this has served to numb jurors to large numbers particularly when it comes to sending a message to an institutional defendant.
5. The social media culture of anger. Max Fisher’s 2022 book The Chaos Machine: The Inside Story of How Social Media Rewired Our Minds and Our World highlights how the algorithms of social media consistently select and promote content that evokes anger and outrage since it is this content that drives the most user engagement. In short, in its effort to keep us engaged so it can keep earning all those advertising dollars, social media has turned us into easily triggered little balls of anger, easily angered and easily outraged. We have seen this so many times in our mock jury research where mock jurors suddenly get angry over the oddest of things. Most important, SJC recently conducted a large research study involving thousands of mock jurors that demonstrated that anger is the best predictor of nuclear verdicts.
6. The great reassessment. One of the most documented changes in the pandemic is what many call the great reassessment or the great resignation. New York Times writer, Kevin Roose, recently coined the term “YOLO economy” to describe our collectively greater focus on living for the present, spending more time doing what we love, and generally doing the kinds of things that bring meaning to our lives. In the past few years, surveys show that a strong majority of Americans have considered change both personally and professionally, looking for a more meaningful and integrated life. One McKinsey study shows nearly two-thirds of employees surveyed said the pandemic caused them to reflect on their purpose in life. The result is that Americans are becoming clearer in their values and what they think the world around them should be like, which has emboldened them to advocate more aggressively for these values in jury deliberations.
7. Jury duty is one of the few ways to level the playing field. On top of all the preceding issues that have been raised in this blog post, jury duty provides a unique and unparalleled outlet for anger and frustration. It levels the playing field against large institutions and gives jurors the opportunity to send a message that they otherwise lack in their life. Unfortunately, this means verdicts often become the outlet for pent-up frustration among jurors that is unrelated to the case itself, yet something in the case reminded them of something in their own lives that angers them, often something they felt they were powerless against.
8. Defense attorneys are not adapting. In the face of all of this, we are seeing many instances of defense attorneys who simply refuse to adapt, instead, often readily stepping into the role of the bad guy jurors are looking for without even realizing it. Today’s jurors do not want to be lectured to. They have finely tuned nonsense detectors. They are impatient and unwilling to do the work for the defense. If the defense does not give them a compelling reason to sift through the complexities, they are unlikely to do so. I had a recent conversation with the top general counsel of a global corporation who asked, “do jurors not care about the truth anymore.” My answer was, “whose truth?” I explained that, from the jurors perspective, there are many possible truths, and everything we know about psychology and decision-making makes it clear that the “truth” most likely to prevail is the one that speaks to jurors personal experiences, beliefs, and ideas about the way the world works. That is how jurors define “truth” in this day and age.
