The Nuclear Verdict blog series
Part V - Thoughts and considerations
In the first 3 parts of our nuclear verdicts series, we covered an overview of the definition of a nuclear verdict, some historical context, and the five causative factors of nuclear verdicts. In part 4, we outlined specific examples of how a scientific approach to litigation research has resulted in the prevention and suppression of nuclear verdicts. In the final part of this series, we offer some concluding thoughts and considerations.
It is of course possible to approach this issue academically and design studies that will identify which of the causative factors identified in the earlier section wield a predominant influence over nuclear outcomes. Such research would involve dissecting multiple cases, but would carry as an encumbrance the labeling, definitional, and identification problems mentioned previously. It would also have to be funded, and the costs would not be trivial.
The jury research industry is an enormous one, with hundreds, if not thousands of practitioners. Jury research is done, its clients report, not to predict damages outcomes but to predict “themes.” In other words, they are saying “we believe the research predicts themes (what jurors will think in response to the case) but not damages (how much they will award).” However, when this position is subjected to scrutiny it starts to fall apart: How can one segregate and predict one but not the other? The damages are the outgrowth of the themes that jurors find to be persuasive. If one is accurately forecasted, then so is the other. If it is not, then neither is the other.
Additionally, mock jury research is often done incorrectly (i.e., not scientifically, thereby defeating predictive validity). Specifically, gathering a group of friends and family members to listen and talk about your case is not valid scientific methodology. Mock jurors need to be carefully recruited, screened, and demographically matched to replicate who will likely show up in the courtroom. This is a tedious process that is often skipped in favor of cost savings.
The same is true for “real time feedback” dials that are often used during mock trials. Real jurors do not judge attorney presentations and witnesses with fancy dials or any other gadgets; therefore, predictive validity can never be attained using this system. Unfortunately, many clients are enamored with the “wow” effect of such technology, falsely assuming that more sophisticated technology equals more predictive validity.
One of the authors recently asked an insurance claims specialist, “what do you think those dials, and fancy lines on the screen, are actually measuring?” The claims specialists responded, “Hmmm… I really don’t know, but boy is this stuff is cool!” In another instance, an equipment provider of the dials and meters admitted to us that his clients liked it because it was “eye candy.” This very same technology was used during the 2016 presidential campaign TV coverage, as several news outlets broadcasted focus group participants (voters) responding to debate performances by each candidate. Most of the results of such focus groups showed Hillary Clinton clearly outperforming Donald Trump over and over again. How did that work out?
Perhaps the most serious shortcoming in “electronic dial feedback” research is that data is being collected in real time on moment-to-moment responses, whereas jurors do not deliberate based on these responses – they deliberate instead on what they retain in memory and retrieve from memory much later in the deliberation room – a truncated subset of their reactions that has invariably morphed into something far different based on how memory operates. Finally, one of the key functions of jury research is information reduction – cutting back the massive number of potential perceptions of the case into those which are more correct than clever. “Electronic dial feedback” results do just the opposite, piling on massive additional amounts of data that simply confound the issues.
Some of the other factors that invalidate mock trial methodology include: a) not showing witness testimony, or choosing excerpts from videotapes that are biased or unrepresentative; b) leaving out key evidence of various types; c) utilizing a watered down plaintiff case that is diluted, distorted or incomplete (even poor graphics on one side can cripple a project); and d) inadequate or improper simulation of actual trial conditions (as discussed in the immediately preceding section).
However, it does appear the success of the Reptilian manipulation tactics against defense witnesses has indeed “woken up” the insurance defense industry. One of the current authors (see Kanasky, W. F. "Debunking and redefining the plaintiff Reptile theory,”For the Defense, 2014, vol. 57; Kanasky, W. F. Derailing the Reptile Safety Rule Attack, 2016, www.courtroomsciences.com;Kanasky, W. F., & Loberg, M. “Rehabilitating the defendant in the reptilian era: A neurocognitive approach,”For the Defense, 2017, vol. 59; and Kanasky, W. F., Speckart, G., Parker, A “Early Anti-Reptile Tactics May Save Millions of Dollars: The role of the litigation psychologist and why it matters,”Trucking Industry Defense Association, 2019, Spring Newsletter) has debunked and redefined the plaintiff Reptile Theory and has provided a blueprint in how to defeat the Reptile methodology in both discovery and trial. In particular, Kanasky, W. F. (Derailing the Reptile Safety Rule Attack, 2016, www.courtroomsciences.com) offers a deep psychological and scientific breakdown of the Reptile questioning tactics and how to thwart them with high levels of success. Additionally, the same author and a defense attorney invented and implemented the “Reverse Reptile” (Motz, P., Kanasky, W. F., Loberg, M., “The ‘Reverse Reptile’: Turning the tables on plaintiff’s counsel,” For the Defense, 2018, vol. 60) in which a strategy was developed to use Reptile tactics on both plaintiffs and adverse co-defendants.
Our jury research results, along with innumerable stories from attorneys about deposition and trial testimony successes, clearly illustrate that the scientifically-supported “anti-Reptile” methodology is seeing great success at the witness-level, but perhaps is lacking at the jury research level due to the insurance defense industry cost-savings philosophy. Indeed, a likely explanation for why witness training advances over the past decade have “caught on,” while resistance to scientific research continues to persist, is the lopsided cost differential between the two – even though the savings from obtaining scientifically-derived damages estimates dwarfs the costs of the research.
Ultimately, the decision to use science will rest on the institutional and policy barriers inherent in the client’s organizational setting. For example, in the insurance industry, the claims department is responsible for duty to defend and has to pay for jury research. But the results of this research benefit the indemnity side of the house, not the claims side which has to pay for it. As one insurance insider told us, “No one from the claims side wants to spend $50,000 to save $200,000 from the indemnity side of the house.”
As such, the plaintiff’s bar has fully taken advantage of this claims-indemnity conflict of interest by outmaneuvering the defense from the moment the case is filed. By the time excess coverage kicks in, plaintiff’s counsel often has the defense behind the eight-ball. Excess coverage claims people have no problem spending money to properly defend the case, but it is often too little too late. The result: a nuclear verdict, or equally as bad, a nuclear settlement.
While the nuclear verdict topic is attracting strong attention today, no one seems to be talking about how the nuclear settlement is becoming a major problem. Paying out nuclear settlements inevitably leads to more lawsuits filed against that particular client, as word spreads fast in the plaintiff’s bar on which companies are fearful of trials and would rather pay their way out of trouble.
Counter-Anchoring Damages is More Important than Ever