“New-clear” verdicts – don’t blame the jurors

Large verdicts are on the rise. There is a notion by the defense that this is a result of plaintiff’s lawyers tapping into jurors’ anger to “mind twist” them into massive verdicts. They label these “Nuclear Verdicts” – claiming somehow these verdicts are driven not by the evidence, but through irrational emotions and juror outrage.

This concept that large verdicts are driven by bad decisions assumes that the bad decision makers are the juries, when in fact it is usually the culmination of bad decisions made by defendants, their insurance carriers and/or their attorneys.

These bad decisions start with the intentional or careless choices of defendants that result in them being found liable in the first place. Whether it’s because they chose to blow through a stop sign, ignore a danger on their property, or put profits over safety in developing a product that hurt or killed someone, the first bad choice usually was made by the defendant.

Once liability is obvious, the next choices are those made by the defendant’s insurance carriers, risk managers, lawyers and/or decision makers. They choose how to view the facts and what value to assign towards settlement. More often than not, the positions taken and offers made are so low that trial becomes inevitable. This may be a result of the decision maker’s cynicism that has formed over years of handling exaggerated, frivolous or even fraudulent claims. Such cynical decision makers then end up evaluating every claim through suspicious lenses. Sometimes their cynical positions are vindicated, reinforcing their generalizations. Other times when it backfires, they blame the jury for getting it wrong instead of accepting responsibility.

When the defense looks at the evidence through these cynical lenses, they end up ignoring the human story of what actually happened to the plaintiff and put more weight on inconsistencies often found in medical records, opinions by biased experts, and then taking very conservative stances on damages. Putting undue weight on facts that do not explain the core story of what happened to the plaintiff and deflecting blame or responsibility often backfires with jurors who see it as the defendant making excuses.

It’s easy for the defense to see large verdicts as the result of vindictive, angry jurors. But this ignores the fundamental concepts that most jurors don’t have an agenda, have no idea how to decide a case, and truly want to do the right thing. They seek to be directed to the right result. Yes, they bring in their experiences and biases, which impacts how they view the evidence and possibly decide, but ultimately, the decision is a collective one that 9 out of 12 jurors must agree upon. That often requires some compromise on their positions to reach a group decision.

There must be a true story of plaintiff’s loss that jurors relate to, connecting them to the gravity of that loss and driving them to award large numbers. The plaintiff, and his or her story, must resonate with jurors. They must believe that their decision will have some impact and help rewrite the future that the plaintiff must face, and make up for the past that plaintiff’s endured. The story of human loss must be well told, authentic, and give the jury the sense that they can right a wrong even if they cannot undo the harm suffered; and that their verdict provides value to the plaintiff to rectify all he/she endured and will endure. The greater the harm, the greater the value. This type of verdict isn’t driven by anger but by love. To truly be angry about something, you first have to care. The more you care for or love someone, the angrier you are to see them suffer harm from others, be it by the defendant initially or by their lawyers at trial.

As far as the amount of the verdict, the defense sees large amounts as punitive. The truth is that most verdicts are either too low or are a good reflection of the value of the harm plaintiff suffered. There is an important reason we have a jury of our peers. Members of our community decide cases because we want the collective judgment of our community. We leave it to our community to be the voice of value for intangible items like pain and suffering. In the aftermath of COVID and the tremendous loss of life and personal freedoms during the pandemic, people experienced firsthand what it means to have their lives change overnight. Moreover, with the rise in the cost of living, overall inflation, and spike in corporate profits, $1 million is not as significant today as 30 years ago. A nice, California single family home cost a little over $200,000 in 1993. Today, that same home would easily cost over a million dollars.

For those who believe these verdicts are a product of jury manipulation or “mind twisting,” I ask you to consider that perhaps the size of the verdicts is not because of juror outrage, but rather a reflection of people having a greater appreciation for what’s most important in life. We all know how much money we have in our wallets or bank accounts and we can choose how to invest or spend it. What we don’t know is how many minutes we are afforded in life and when those minutes will run out. The true wealth we acquire in life is not in dollars, but in the memories we create and leave behind. When those moments change from vibrant and happy to sad and painful because of needlessly inflicted harm, there is a tremendous loss. The fact that jurors can see more clearly the true value of that loss isn’t “Nuclear” but it’s the “New Clear.”