Nuclear Verdicts are an ongoing and enormous challenge for claims and litigation professionals. According to recent data from the U.S. Chamber of Commerce’s Institute of Legal Reform (ILR), there was an upward trend in the frequency of Nuclear Verdicts over the 10 years from 2013 to 2022, excluding the pandemic years. In addition, there was a record number of “mega” Nuclear Verdicts of $100 million or more in 2022, and ILR says preliminary data indicates that record was again broken in 2023. The takeaway is that Nuclear Verdicts are not going away on their own—if anything, they are becoming more frequent.
At CLM, there has been no shortage of live presentations, webinars, and magazine articles on the topic, yet so many questions remain for chief claims officers trying to wrap their heads around the problem. What makes a case go Nuclear? Can Nuclear Verdicts be stopped? What is the best way forward?
Here, CLM sits down with Bob Tyson, managing partner at Tyson & Mendes, to dig deeper into the topic of Nuclear Verdicts, and to discuss what needs to change in how the industry approaches the issue to truly move the needle for claims departments.
Bob Tyson
Managing Partner
Tyson & Mendes
Q: What would you say is the biggest red flag that a case may end up with a Nuclear Verdict? What are the warning signs that claims and litigation professionals should be looking out for?
A: That’s the scary thing: Any case can result in a Nuclear Verdict if the defense fails to defuse the juror anger that the plaintiffs’ bar is so adept at generating. The biggest red flag over the last 15 years is your insured. Your insured and defense team will be the focus of plaintiffs’ counsel’s ire in front of the jury.
Do not overlook or excuse the actions of your insured. You must understand what will get a jury angry about your case and figure out how you are going to defuse that anger. This is a very different approach than the defense has used in the past. It is time to change the way you defend cases. And AI can help claims professionals to spot these red flags; use the technology available!
Q: When the topic of Nuclear Verdicts comes up, we hear a lot about juries, whether it’s angry juries or generational and demographic changes in juries. Is there too much focus on the juries? To what extent are the juries responsible for Nuclear Verdict trends, as opposed to claims departments and defense attorneys not adjusting to plaintiffs’ attorneys’ tactics?
A: Not enough time is spent on juries by the defense. Plaintiffs’ lawyers are focused on the 12 jurors and getting the most money possible, 100% of the time. The defense is not. The defense side of high stakes litigation is super complicated. There are a lot of competing interests and stakeholders with a lot of different opinions about how to defend a trial that have nothing to do with the 12 people deciding their fate. The simple fact is Nuclear Verdicts happen in a courtroom and all fit a pattern. You want to stop Nuclear Verdicts? Break the pattern!
We founded the Nuclear Verdicts Defense Institute to help lawyers learn how to stop Nuclear Verdicts where they happen: in a courtroom. Send your defense lawyers to learn how to break the pattern for four days in July in San Diego. It is not cheap, but it is a lot less expensive than a Nuclear Verdict.
I want us to win together, as an industry, and it is going to take the same level of collaboration the plaintiffs’ bar exerts every day. I welcome attorneys from other firms to start using these methods, and I would love to hear about your successes. We are building a better defense industry together, and it starts by embracing creativity, innovation, and collaboration.
The plaintiffs’ bar also uses AI and machine learning in everything from case selection, to motions drafting, to closing argument themes. The defense bar’s reticence to use tools like those available through Schaefer City Technologies speaks to the responsibility we all bear for the continued epidemic of Nuclear Verdicts and nuclear settlements.
Q: You have spoken a lot about the Nuclear Verdict Defense Methods: accept responsibility, give a number, argue pain and suffering, and personalize the corporate defendant. Which of these tactics do you believe are gaining the most traction, which are the most underutilized (and why), and, overall, have you seen a turning of the tide at all with respect to how the defense is approaching trial to avoid potential Nuclear Verdicts?
A: The easiest “sell,” so to speak, is usually personalizing the corporate defendant. I think this is because it fundamentally jibes with what people believe is fair. If we hear everything about a plaintiff, why shouldn’t we hear about the defendant, too?
I am also seeing the defense bar more willing to effectively argue pain and suffering through our two-prong approach of arguing the impact of the accident/incident on plaintiff’s life, and the impact of money on the plaintiff’s life. We do get pushback when we share our targeted questions to ask of plaintiffs in deposition to get at the heart of pain and suffering (most defense lawyers do not like asking a plaintiff what their biggest stressor is, for example), but we are making headway there.
The most underutilized method is giving a number. It is very difficult for the industry to accept what’s been proven time and again by our experience, and even by scientific studies: Your chances of getting a defense verdict actually increase when you give a number! This does not seem logical, but it is true. Our new analysis of cases that have gone nuclear proves the defense is still routinely failing to give a number, even as plaintiffs’ counsel gives an astronomical number starting in jury selection, and repeating it throughout trial. If we do not offer jurors guidance, we are tacitly accepting the legitimacy of plaintiff’s number, even when it often has no basis in reality or evidence.
I do think defense attorneys are starting to understand the importance of the Nuclear Verdicts Defense Methods. However, I suspect we have more work to do in landing the message that they must all be used together. We see occasionally that one or two methods will be used, but we joke that it’s not a buffet! All four methods work in concert with one another to defuse juror anger, and all four are necessary to avoid a Nuclear Verdict. Put simply: We have not seen a Nuclear Verdict result where all four methods are used. That is a fact.
Q: What remains the biggest challenge when it comes to countering plaintiffs’ attorneys’ tactics that lead to Nuclear Verdicts? Is it a lack of awareness about these tactics, a lack of understanding about how to counter those tactics, or perhaps a lack of consensus regarding which defense strategies will be effective?
A: Change. That is our biggest challenge as an industry. Plaintiffs’ lawyers have radically changed the way they try lawsuits for 15 years now. The reptile theory came out in 2009. What is the insurance industry doing differently? No, seriously, what new techniques and tactics are your defense counsel using in trial to combat plaintiff lawyers? We all know what the definition of insanity is, and I think the insurance industry is living proof when it comes to Nuclear Verdicts.
Plaintiffs’ lawyers do not want you to use any of our four Nuclear Verdict Defense Methods. They will fight us to use them every way possible. Why? Because our methods work. Isn’t that enough of a reason to try something different—because your competition doesn’t want you to change? Jury trials have changed. Have you?
Q: As the defense has become aware of plaintiffs’ attorneys’ tactics, have you seen an evolution from the plaintiffs’ bar? Have they changed their approach to obtain Nuclear Verdicts at all over the years?
A: They rebrand the same methods, all designed to generate anger. As I mentioned, they are pivoting their approach in response to our methods. And we see all the time in Nuclear Verdicts that they use it against the defense when the defense fails to use our methods. Inevitably, if the defense refuses to accept responsibility, plaintiffs’ counsel’s theme centers around a lack of responsibility and accountability. They continue to collaborate and attend trial colleges across the country (and even in Mexico!), all to share their latest wins and learn from their losses. They are constantly evolving in response to what is effective.
Q: When it comes to avoiding Nuclear Verdicts, if you could change one thing about claims departments’ overall philosophy as far as how they prepare for a case and their direction to outside counsel, what would it be?
A: I have started to wonder if Nuclear Verdicts are bad enough yet. Are Nuclear Verdicts a big enough problem for insurance companies to really do anything about it? People spend time and money on things they care about. Where are insurance companies spending their time and money when it comes to their outside defense counsel? Are you focused on learning, researching, and sharing best practices with all of your panel counsel firms to combat these unjust verdicts? Or are you still spending time and money on litigation management initiatives, hourly rates, revising billing guidelines, new rules for vendor bills, and a whole host of other cost containment issues unrelated to indemnity?
I have a list of questions I call “If I Were King for a Day.” I want every claims department to have a copy of these questions and incorporate them into their reporting requirements for defense counsel. I want claims professionals to go through them with their counsel before trial. Their counsel should have an answer to every single one of these questions, and if they don’t, it is a problem.
I believe even one Nuclear Verdict is bad enough that we should all want to do something to stop it. Let’s change, together, now!