Personalizing the defendant is a key method for countering plaintiffs’ attorney tactics at trial and preventing Nuclear Verdicts, but not only is this strategy underused by defense counsel, it also is not prioritized or even discussed by most insurance carriers, according to Bob Tyson, strategic managing partner, Tyson & Mendes, and author of the book, “Nuclear Verdicts: Defending Justice for All.”
Speaking virtually to a CLM audience of claims and litigation professionals, Tyson and Ashley Paige Fetyko, partner and head of communications, Tyson & Mendes, noted that Nuclear Verdicts are a top-of-mind issue for insurance executives on earnings calls, and they are impacting jurisdictions that used to be considered “safe” for the defense, but, despite all of that, the industry remains slow and behind the times in its response. “The reptile theory came out 15 years ago, in 2009,” Tyson said. “We’re still talking about it and still trying to fight it.”
This does not mean that strategies to counter Nuclear Verdicts do not exist or have not been tried. Tyson has spoken and written about his Nuclear Verdict Defense Methods—accept responsibility, give a number, argue pain and suffering, and personalize the corporate defendant—and in this webinar he and Fetyko zeroed in on one of those points: personalizing the corporate defendant.
Fetyko shared data from a Tyson & Mendes analysis of trial transcripts and closing argument transcripts from over 100 cases that went Nuclear. “We tried to get a really broad sample across all case types, injury severity, jurisdictions…really to get as broad of a sampling as we possibly could to see what’s happening,” she said. In 80% of those cases, she added, no effort was made to personalize the defendant.
“They do personalize the defendant, from what we found, in about 20% of Nuclear Verdicts that we've analyzed, which I guess is hopeful,” Fetyko said. “What happened in those 20% of cases where the defense personalized the corporate defendant? They failed to use all four methods.” She emphasized that the four methods are designed to work in tandem. “You don't just get to pick and choose one,” she noted, but she acknowledged that personalizing the corporate defendant is the easiest of the four methods to do, and she did say that, in the study of Nuclear results, the total damages in cases where the defense personalized the defendant was lower on average compared to cases where the defense failed to do so. “Our research shows that personalizing that defendant can reduce damages, even in a Nuclear Verdict,” said Fetyko.
“Now,” she added, “I do have to provide the caveat that that data set was small because we're operating from 20% of the Nuclear Verdicts that we analyzed, and then we're comparing it against what plaintiff's number was. But even still, there did seem to be some correlation between personalizing the defendant and the ultimate impact on the damages award.”
Tyson noted during the presentation that some attendees expressed hesitancy to use methods such as personalizing the corporate defendant, with one attendee in particular stating that it can seem “phony.” Tyson responded, “We didn't say this stuff was easy, that it was intuitive; that it's going to be like everything else you [do]. …What we're trying to do is raise these issues for [attendees] and point out that the data says you'll get better results if the jury knows and likes your insured.”
He added, “It makes sense. You want to know why it makes sense? Because plaintiffs’ counsel spends so much time personalizing their client. Why else would they do it unless it works? …They're talking about when [the plaintiff] was a child. They're talking about when she played soccer—and she's 55 years old. And the jury's really paying attention and they like her high school coach from 30 years ago. Do you defense lawyers stand up and say, ‘All right, I'm going to tell them what my client was like 30 years ago’?”
Turning his focus to carriers, he said, “It’s on you” to emphasize the importance of personalizing the defendant to outside counsel if that is not part of the defense strategy. Noting that the carriers direct outside counsel on a number of factors, such as how to bill and what and when to report to them, he stated, “You can tell us to personalize the corporate defendant.” He also said the carrier knows the defendant’s businesses and some of the key people within it well and can help defense counsel focus on the right points.
Fetyko, meanwhile, addressed concerns that the court may not allow personalization of the defendant. “Here’s the thing,” she said. “If you have a judge who's going to shut your defense counsel down, let them do it in front of the jury.” She added, “Let plaintiff’s counsel object to me trying to get some background information when the jury has just sat through two-and-a-half weeks of him personalizing his own [client]. Let them object and let that be sustained, because then the jury is sitting there going, ‘Well, why don't they want us to know about the defendant?’”
How to Personalize
According to Tyson, the key is to “tell a human story” to the jury. Fetyko noted the importance of identifying a corporate representative who has a good connection to the business or a good connection to why the owner chose that line of work.
In addition, the corporate representative must be at the trial every day. Tyson recounted a story from a trial he had where the corporate representative—an employee of the defendant company—showed up every day for a month, the defense was able to personalize him. “When the jury came out, a few of them said to us that they felt bad for our corporate representative,” Tyson said, despite that representative not suffering an injury in the case.
Some questions that could help personalize the defendant include asking owners of a trucking company why they started the business, said Tyson. “‘Why did you start this business? Why do you exist?’ That's never asked. ‘Why do you have a trucking company?’”
Fetyko added, “And often guys, trucking companies are family businesses. There's often a really compelling family story at the heart of that trucking company.”
A question could also be as simple as asking a new corporate witness, “Tell me a little bit about yourself,” said Tyson. “That’s objectionable? …There’s no objections to that question.” It then allows the corporate witnesses to share some personal details about their lives. “It will get in, and you've told a people story because corporations come down to people: human beings. That's the story that has to be told.”
Tyson continued, “You're wondering how is this relevant? How is all the [stuff that’s getting in about the plaintiff] relevant?” He said plaintiffs’ parents or friends will be on the stand talking about what the plaintiff means to them and “they’re not even parties to the case. Your corporate representatives are parties to the case.”
Angry Juries
Fetyko said there has been “quite a bit of discussion” of late about whether anger is a driving force behind Nuclear Verdicts, and she suggested that it is. "I just want to highlight for you all that multiple studies across multiple years, from individuals who are just psychologists who are studying these phenomena and have no dog in the race, have confirmed that anger is a driving force behind outsized awards.”
Angry juries, she added are “more likely to rely on stereotypes about corporate beliefs [and] corporate defendants when evaluating evidence. Multiple studies have confirmed that juror anger is not a good thing for corporate defendants.”
Fetyko concluded, “Anger is still a big thing. We can't just pretend it's not at the heart of what's going on here. And personalizing helps us to overcome that.”