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June 7, 2018

What is the Top End for Verdicts?

$148 Million, $95 million, and $33.4 million. These were the verdict amounts for just three cases all rendered in the span of four months in 2017 in Cook County. This doesn’t even include a nearly $45 million verdict entered in a Federal court sitting in Chicago in October 2017. These verdicts beg head scratching questions such as “What is the top end for verdicts?”, and “Can you still take cases to trial now in Cook County?”

Can You Still Take Cases to Trial in Cook County?

There is no doubt that these large verdicts have re-defined what is possible for verdict value on cases. But despite the shock value, these verdicts don’t reflect what is likely to occur. They are all recognized as outliers to the thousands of cases which are filed every year in Cook County. Even the plaintiff’s attorney in the largest verdict has told media outlets that this case was the most unique case in 40 years of practice.

In fact, the Chicago Lawyer article published in June 2018 edition (located here) looked at 10 years of data compiled by the Illinois Jury Verdict Reporter, and found that the actual verdict value had gone down in 2016-2017 compared to the year prior. By looking at the statistical data, that publisher found that:

“the median verdicts over the last decade show that, high-figure statistical blips aside, the bulk of the verdicts are churning out consistently at a lower level. After dropping every year from 2011 to 2015 to reach a low of $86,000, the median verdict spiked between Aug. 30, 2015, and Sept. 1, 2016, to approximately $188,000. In 2016-17, the median verdict dropped to $144,000, according to the data.” (Chicago Lawyer, June 2018) (Emphasis Added)

The large eye-popping verdicts are sensational, but as they are outliers. The median verdict value of $144,000 in 2016 and 2017 bear out the opposite of what these worst case scenarios seem to imply; the overall median verdict value in Cook County has not been increasing. These large verdicts are being offset by defense verdicts, and lower than expected plaintiff’s verdicts. The sensational headlines shouldn’t affect whether carriers decide to target cases for settlement or trial.

What is Causing These Verdicts?

So the numbers seem to answer “Yes” to the question whether you can still try a case in Cook County. But the more interesting question is, “why the string of large verdicts?” My take is relatively simple; there are two things going on simultaneously that are producing this string of large jury verdicts. First, plaintiffs are more selective in which cases they are taking to trial since the cost to move a complex case to trial is prohibitive for many firms. Secondly, most plaintiffs’ attorneys are testing their cases before focus groups, or “mock juries”. They have learned to focus on the key themes of the case that create an emotional jury response, which is how they can get these eye-popping verdicts for cases that lend themselves to them.

These focus groups have taught plaintiff’s attorneys a couple key points to focus on, such as the value of harm over a lifetime, the greed of companies in maximizing profits over safety, and the ever-increasing polarization of our country. One of the most recent bestsellers among Plaintiffs Trial lawyers is “Focus Groups Hitting the Bullseye” By Phillip Miller & Paul Scoptur. The book published by the group formerly known as ATLA, focuses on the mechanics of building these types of themes into the narrative of the case.

Moving Forward

However, the use of focus groups and themes is not an exclusive tool of plaintiffs in these types of cases. Good defense teams regularly test their theories of the cases through focus groups or mock juries to develop a focused theme and counter narrative. The defense narrative on how to respond to plaintiff’s themes, the rising tide of jury demographic changes, and how technology affects these results are all topics I plan to tackle next in this three part series. I hope you will come back, as sanity reigns in the next installment.

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