How to Avoid A Nuclear Verdict? This is the question fueling defense lawyers’ nightmares, especially when their upcoming trial involves a catastrophically-injured plaintiff. Our last blog article Top 3 Ways Plaintiff Attorneys Ensure Nuclear Verdicts highlights some of the strategies plaintiff’s counsel attempts to convince jurors into awarding massive damages. Recent large verdict cases give plenty of examples of how appeals to emotion by plaintiffs’ counsel, combined with current anti-corporatism sentiments and a heightened desire for social activism, create ideal conditions for plaintiffs’ attorneys to obtain extraordinary verdicts.
“A nuclear verdict is defined as an exceptionally high jury award that surpasses what should be a reasonable or rational amount.” Often, this plaintiff award reaches beyond the tens and into the hundreds of millions of dollars. So, is it just the fear of a large money verdict that keeps defense counsel up at night? Not at all. Lawyers understand large verdicts can have a significant impact on their corporate client. In addition to the financial impact, headline-grabbing verdicts can damage a company's reputation and hurt its future business, especially if the case involves allegations of misconduct or negligence.
One defense lawyer’s handbook to preventing such verdicts is Robert Tyson’s Nuclear Verdicts: Defending Justice For All (a work both plaintiff and defense attorneys can learn from). Tyson offers ten practical strategies for avoiding a nuclear verdict and achieving a defense verdict. “If you research large jury verdicts, you will find defense counsel almost always failed to do at least one, if not all, of these ten things.”1 Even though many of these suggestions are “not intuitive or comfortable,”2 if executed well, they will lead to a more reasonable plaintiff’s verdict, or even the stuff of defense counsel's dreams: a complete defense verdict. While this may sound like a bold claim, after observing hundreds of jury trials, I have seen the failure of defense counsel to apply strategies like these have disastrous results.
It is important for companies to take steps to mitigate their risk of a nuclear verdict, such as implementing strong risk management practices and working with experienced attorneys to develop effective defense strategies and themes early in litigation. What’s one thing trial counsel can do to reduce the risk of “nuclear” fallout: Begin with the END in Mind! Unless the plaintiff withdraws or dismisses the lawsuit, the case will have to be resolved in some way… so do the work now to prepare the best case possible for the end result: The jury trial.
What’s the best way to prepare for that trial jury? A mock trial. Mock trials are more than a dress rehearsal, they are a valuable tool that defense attorneys can use to prepare for the best case for trial and increase their chances of avoiding that nightmare verdict. Often attorneys or claims representatives think it is too early to start thinking about the jury trial; that is a short-sighted mindset. The information gained during the mock trial, even without all the discovery completed, is invaluable for counsel to evaluate witnesses, themes, and presentation style.
Mock trials can help you:
- Identify weaknesses in the case: Mock trials allow defense attorneys to test their case strategy and arguments with a jury who is similar to the one who will hear your case. This can help identify weaknesses in the case and give the attorney a chance to address those weaknesses before the trial by using early case evaluation to develop a clear defense strategy.
- Early case evaluation: Conduct a thorough evaluation of the case as soon as possible to identify the strengths and weaknesses of the case, including the plaintiff's claims and any potential weaknesses in the defendant's case. This will develop a strategy that maximizes the chances of success and minimizes the risk of a nuclear verdict.
- Develop a clear defense strategy: Based on the strengths and weaknesses identified in the case evaluation, develop a clear defense strategy that involves a strong case theme, addresses potential weaknesses in the case, and persuades the jury.
- Think about your Trial Jury: This may involve using jury consultants to help prepare thorough Voir Dire questioning to identify potential biases and prejudices.
- Test evidence and witnesses: Mock trials can also be used to test the effectiveness of the evidence and witnesses that will be presented in court. Is the jury going to like your corporate representative or loathe your expert witness? Allow your mock jury to tell you what they think of each witness’s testimony and demeanor and adjust accordingly.
- Get the jury’s “WHY”: Mock trials can help defense attorneys understand how the jury is likely to react to their case, but getting into the “Why” is where the real value of the mock jury lies. This can be particularly important in cases where the plaintiff is seeking a large damages award. Understanding “Why” the jury awarded that amount, gives you information to use to dissuade the jurors from following plaintiff counsel’s extraordinary request.
- Hone your skills: Mock trials provide a low-risk opportunity to practice your trial skills in a simulated trial environment. With the pandemic shutdown and now burgeoning backlogs, there are very few opportunities (Jury trials are disappearing) to shine in a courtroom. Getting real-time feedback from jurors on your presentation style will identify those small behaviors that distract jurors from paying attention to the issues in your case. There is no better way to prepare to be in the courtroom than to actually Be In The Courtroom! Feeling more confident in your own ability to present a strong defense is contagious… the jurors will see you as the leader of that courtroom and be willing to follow that lead.
Shakespeare, in one of my favorite plays, The Tempest, reminds us that “We are such stuff as dreams are made on."3 Stop sleeping on the potential of an outrageous verdict and put the work in now to prevent it. Preparation to avoid the nuclear verdicts of your nightmares isn’t easy, but implementing these strategies will help you approach your case confidently and with the knowledge that you can effectively Slay the Reptile. Wishing you Sweet Dreams!
Want more insights from First Court’s experience with jury verdicts? Check out our blog series on LinkedIn where we delve into each of Tyson’s ten points one-by-one, drawing from the advice in his book and combining the thought leadership of prominent plaintiff and defense attorneys who have experienced both sides of a nuclear verdict. Keep an eye out for our upcoming Always Accept Responsibility.
Recent Articles by Our First Court Team:
A Trial Lawyer’s Guide to Serving Red Herring
Strategies for Gaining Credibility During Voir Dire.
What is a Mock Trial?
- Tyson Jr., Robert F. Nuclear Verdicts: Defending Justice for All (Law Dog Publishing, LLC., 2020, $37.12 on Amazon.com), ix.
- Shakespeare, William. “Act IV, Scene 1.” The Tempest, Oxford University Press, Oxford, England, 2010.
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