The best way to avoid a Nuclear Verdict is to utilize the power of accepting responsibility, according to CLM’s latest webinar, led by Bob Tyson, partner, Tyson & Mendes; and Ashley Paige Fetyko, senior counsel, director of client relations and education, Tyson & Mendes. The speakers of the webinar, titled, “Accept Responsibility or Pay the Price: Top Trends and Takeaways from Analysis into 100 Nuclear Verdicts,” delved into what drives nuclear verdicts, how juries are manipulated into awarding such high awards, and how accepting responsibility can go a long way in preventing nuclear verdicts.
Plaintiffs’ Tactics and Motivating Jurors
The number one driving force of Nuclear Verdicts is plaintiffs’ counsel tactics, according to Tyson and Fetyko. “We know this from studying cases that have gone nuclear,” explained Fetyko. “They are coordinated, they’re creative, and they are clever. They work together like nobody’s business, and they want your jurors angry…they want your jurors angry because anger is a really powerful motivator. They become angry enough to put themselves in the…plaintiff’s shoes. Yes, they want your sympathy too, but…they really want to get to anger because anger is a motivator to get the jurors to act…to punish and award higher numbers.”
From a psychological perspective, the presenters cited Dr. Jennifer Staples, who presents insight into the psychology of anger to the firm’s Nuclear Verdicts Defense Institute. She states that anger is a learned means of neutralizing anxiety; an automatic human response to protect us from harm; a signal we may need to do something; and a feeling of power that can compensate for underlying feelings of anxiety. Anger, however, is often the secondary emotion; for instance, if the primary emotion is fear, it may manifest as anger so a person feels in control. The reason why plaintiffs’ counsel wants to play on jurors’ emotions is to get them to ignore the law and the facts in front of them in favor of an emotional response in their favor.
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Other plaintiffs’ counsel tactics include the Reptile Theory (rebranded as “The Edge”), catastrophizing injuries, demonizing the defendant, laying traps for the defendant to admit they did not follow their own rules, and more. These tactics, Fetyko explains, are meant to raise the standard of care to an unrealistic degree and have the defendant agree to [safety standards] the law does not require. In turn, the aim is to make defendants appear greedy, shady, and uncaring, “and then, ultimately, to bestow upon jurors, the power to make it right,” said Fetyko.
Nuclear Verdicts Analysis
Tyson will be releasing his second book, titled, “Nuclear Verdicts: Break the Pattern,” co-authored by Cayce E. Lynch and due to be released this year. Explaining the research used for the book, Fetyko said, “We analyzed 100 cases that went nuclear. This was a random sampling that included cases from every jurisdiction…it really ran the gamut as far as injury severity, as well as what type of case. So, we’ve got employment cases represented, defamation, wrongful death, sexual assault and molestation, med mal, trucking—we’ve got everything covered.
“And we did that because we really wanted to see, across every type of case…what’s actually happening in trial…what’s actually driving these outsized awards. Then…over the course of our initial analysis, we realized we were already seeing patterns and trends. We established…67, maybe 72 data points to track. So, we decided…to try to figure out, looking at these specific data points, if there were any patterns that are linking them all together.”
Fedyko continued, “The good news is there is a pattern. The better news, since there’s a pattern, is that we can break the pattern.”
Tyson & Mendes tracked the behavior of plaintiffs’ counsel and defense counsel to see what plaintiffs’ counsel is doing and how, if at all, defense counsel is responding. First, the firm looked at whether the plaintiff was using reverse Nuclear Verdicts defense methods. The four Nuclear Verdicts Defense Methods are: accept responsibility, give a number, argue pain and suffering, and personalize the corporate defendant.
“Is the plaintiff using the flip of [these] in any situation? For example, is the plaintiff capitalizing on the defense for not accepting responsibility? Are they dehumanizing the defendant? Are they providing counterpoints to the defendant’s number? Or, are they failing to give a number? So, basically, is the plaintiff making hay with the defense’s failure to use our methods, is what we were looking at. Spoiler alert: They know our methods, and they love it when we fail to use the methods,” explained Fetyko.
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Tyson & Mendes also looked at how the plaintiff argued noneconomic damages, which included answering an ad, tying the amount of money they ask for to an inanimate object, and time value of money to set the plaintiff up with enough money for the rest of their lives. “The judges are allowing all of [this],” noted Tyson. “It’s closing argument counsel…they’re extremely creative. They’re tying their numbers to the stealth bomber—you save the pilot if it’s going down, not the half-billion-dollar technology—they’re relating it to the Kardashians, whoever is famous in your town or city. The judges are allowing it all…so, why are plaintiffs’ lawyers so creative, and what are defense lawyers doing to counter those arguments? Judges are allowing it, and they’re allowing you to get creative in closing argument. What are your defense lawyers doing…why are [plaintiffs’ attorneys] more creative than defense lawyers?”
“I think we’re rule followers,” Fetyko responded. “And so, I think we have it in our heads that there’s some rule against us being creative—like, we have to wear a dark suit and just not engage as humans and not show up with creativity…but there’s nothing in the rules of evidence or civil procedure that say that. It’s not illegal or against any court order for your defense counsel to be creative.”
Tyson & Mendes tracked whether defense counsel used any of the Nuclear Defense Methods and found that they did not nearly as much as they would have liked to see, according to Fetyko.
Results of the Analysis
Tyson & Mendes did a line-by-line review of closing arguments of closing arguments and trial transcripts, analyzed arguments made by plaintiffs’ counsel and defense counsel, tracked data points, and compared data points for patterns. Fetyko shared that “in cases that go nuclear, our preliminary data shows that defense is accepting responsibility in less than 20% of cases…that means that 80% of the time in Nuclear Verdicts, defense is not accepting responsibility.”
Furthermore, she continued, “In the few cases that we found where the defense actually did accept responsibility, the verdict—even though it was nuclear—the verdict was below plaintiffs’ ask most of the time…There is definitely a correlation there.
“Plaintiffs’ counsel knows it’s really bad for us if we don’t accept responsibility. They attack us for not doing it, they come at our client, they accuse us of being shady, they accuse us of shirking responsibility that we owe to the community in which we do business, they shame us for not accepting responsibility, they come after us personally, and they come back at it over and over again…” They also constantly remind the jury how the defense failed to accept responsibility, which is highly effective at generating anger, hence driving up damages.
Breaking the Pattern
“Even when going for a defense verdict, the first words out of our mouth is that we accept responsibility,” said Tyson, “because it diffuses anger, it makes your defense seem like the most reasonable person in the room, and you’re taking responsibility so you can shift responsibility when you’re going for a defense verdict.”
The presenters stressed that accepting responsibility is not the same as accepting liability, and accepting responsibility is possible in cases of full liability, partial liability, and no liability. “Yes,” said Tyson, “you can accept responsibility and get a defense verdict.”