May 3, 2019
The case had all of the trappings of a runaway jury. A corporate defendant, a dead doctor, a grieving family, and a venue where verdicts had hit for up to $148 million, with several clocking in between $30-40 million in just the surrounding months. Add to that the fact that the plaintiff’s attorneys were some of the most feared in the country, and this one seemed like a case destined to settle. So why did the verdict come back at the defendant’s number? More importantly, was this just a one-off case, or an example of effective defense strategies continuing to move us toward a positive trend line?
In June 2018, I wrote the first installment of this three-part series on the trend of eye-popping, runaway jury verdicts. If you haven’t yet read that article, it’s a must – you can find it here. That first article provides both perceptions and empirical data to address the questions, “What is the top end for verdicts?” and, “Can you still take large cases to verdict in troubled venues like Cook County?”
In this second article, I wanted to provide strategies for handling big cases, including in problematic venues across the country, such as Cook County. As a case study in what works, I will also outline the strategies employed in the death case mentioned above that went to verdict in 2018.
I have tried or handled large catastrophic injury and death cases in three of the top five judicial hell holes in the United States. Magna Jury Consultant Rachel York Colangelo, Ph.D. and her colleagues have worked on cases in every large venue, and many of the smaller yet still troubling venues, in the United States, and on every kind of catastrophic injury/death case you can imagine. Together, here is what we know:
Good defense teams regularly (early and often) test their theories of the case through focus groups or mock trials in order to develop a compelling counter narrative with focused themes. As noted in my prior article, plaintiff attorneys are constantly testing themes that drive up case values. The defense’s need to effectively respond, rebut, and reframe the plaintiff’s themes, as well as the rising tide of Millennial jurors requires a similar vetting and testing of our cases.
Right now there are 75 million Millennials and 60 million Generation “Z”s (those born between 1980 and 1998) in the United States. Amazingly these individuals make up 41% of the current US population. These 18- to 30-somethings are the fastest growing segment of today’s workforce, and in cities, they are the largest and fastest growing percentage of the population. As cities continue to draw and house Millennials and Gen Z, this means that all juries will soon be comprised of a majority of Mllennials and Gen Z in nearly every large venue.
Like it or not, Millennials are leaders in the jury room, despite the presence of other jurors with many more years of life/work experience that may be relevant to deciding the case. Millennial jurors jump to the front of the line and are the first to volunteer to serve as foreperson as well as the first to offer their opinions. This consideration requires you to:
- Test your case with jury research (focus groups and mock trials, either online or in-person). The earlier, the better – test your case during discovery; don’t wait until the eve of trial.
- Develop themes jurors, particularly Millennials and Gen Z, require in a compelling narrative, including telling them why finding for the defense is the “right thing to do” in this case.
- Develop a theme of personal responsibility that benefits the defense, not just as applied to this case, but remind jurors how we expect everyone to act in our society.
- Let the jurors solve the puzzle on their own. Jurors, especially Millennials, want to feel as if they have solved the mystery of the case on their own rather than being told exactly how to get there. Thus, the defense’s job is to drop the crumbs and show jurors the path (the shorter and straighter the path the better), but allow them to reach the finish line “on their own.”
- Find the right words to speak to your jury. Sometimes using exact wording is key to hitting the sweet spot with juries. Specific words and phrases can resonate more or less with different types of jurors. Generation differences make it nearly impossible to find the right words without testing the case with mock jurors.
Now, with these tips in mind, let’s return to the September, 2018 verdict my firm got in the aforementioned doctor death case. The plaintiffs in that case, the doctor’s heirs, asked the jury for $14.4 million in damages. The jury returned a verdict of $1.3 million, which was close to the figure suggested by the defense. This was a defense win for sure, and the key to that success was conducting a pre-trial online focus group via JuryConfirm.com with Dr. Colangelo and her colleagues at Magna Legal Services. Through the feedback garnered during that focus group, we were able to develop a powerful defense theme using the exact wording of “knowledge and control” to focus the jury on why the plaintiff had some personal responsibility for her own death. This theme was born out of the comments made by Millennial mock jurors during the online focus group, and then resonated with Millennials on the actual trial jury.
Another critical part of the equation for Millennials in particular, but frankly all jurors in the age of the ever-shortening attention span, is the use of graphics and technology in the Courtroom. Effectively using graphics and technology for trial presentation is the final piece of the puzzle for combatting runaway jury verdicts, and is the subject of the third installment of this three-article series.