In 2015, the average verdict in the National Law Journal’s Top 100 Verdicts was a solid $64 million. By 2019, this average had more than tripled to a resounding $214 million.1 Today, nuclear verdicts are more common than ever and are causing defense attorneys to tremble in their boots. Why is this the case? The answer to this question is critical for both defense and plaintiff lawyers, who either was to divert a nuclear verdict or create one.
According to Merrie Jo Pitera & Nick Polavin in their article What Causes “Nuclear Verdicts?" (Part 1), these multi-million dollar verdicts are caused by a combination of tactics by the plaintiff attorney along with certain shifts in mainstream belief. First of all, Pitera and Polavin talk about the plaintiff’s use of the Reptile Strategy. LexisNexis defined Reptile Strategy as a theory that “focuses on safety and security issues to subtly encourage jurors to envision themselves in the same situation as a plaintiff.” Using the Reptile Strategy is a clever way of circumventing the Golden Rule and activating the “flight or fight” response within the jurors.
The three most important elements of this strategy are:
- Firstly, the plaintiff’s attorney will emphasize a certain universal rule that cannot be disregarded, such as: “Safety first.”
- Then, the plaintiff’s counsel will accuse the defense of breaching this rule and putting the entire community, not just the plaintiff, in danger.
- The last step is telling the jurors that they have the power to right this wrong and ensure this kind of violation never happens again. And the way in which they can do this is by sending a “loud and clear” message to the defense by awarding massive damages.2
Once this strategy has slithered its way into jurors’ minds, it is made more potent by the popular mainstream beliefs of today: largely, anti-corporatism. In a recent study by Pew Research, they found that “71% of Americans say large corporations have a negative effect on the way things are going in the country.”3 This dislike and often hatred of large companies has begun to taint jurors’ opinions towards businesses.
When this repulsion for large corporations is combined with a perfectly performed Reptile strategy, jurors jump to award damages that will adequately punish the “selfish,” “greedy” company, and while the results are rarely pretty for a defense lawyer, they are a cause for celebration on the plaintiff side.
*Stay tuned for our next article “How to Avoid "Nuclear Verdict" Nightmares.
|In 2017, Ryan joined First Court as their trial consultant, eventually becoming the company’s CEO. His primary focus at First Court is efficiently researching how jurors respond to cases and helping clients win trials using our Jury Reactions and Private Jury Trials.|
- National Law Journal’s 2015 and 2019 editions of the Top 100 Verdicts studies
fact-tank/2022/11/17/anti- corporate-sentiment-in-u-s-is- now-widespread-in-both- parties/