The Secret to Combating Runaway Jury Verdicts, Part II Daniel P. Costello, Esq. With contributions by Rachel York Colangelo, Ph.D.

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: 

Check List:  

  • 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.

Back-to-back Trial Wins for Partner Jessica Biagi

Congratulations to Jessica on her two jury trial wins and a great start for 2019!

Day Care Defense

Jessica successfully defended both a day care and school district against a negligence claim brought by the family of a 6 year-old minor plaintiff who fell off monkey bars on a playground and fractured her arm. Plaintiffs alleged the injuries sustained required surgery and further claimed she had a permanent flexion contracture deformity.  The plaintiff initially sued both the school district who owned the playground and the day care responsible for supervising the minor plaintiff on the playground, but voluntarily dismissed the school district with prejudice on the eve of trial.  Plaintiff asked for more than $400,000, but Jessica made the case that the defendants were not negligent in any aspect of their supervision. After a 4-day trial, the jury found no negligence and returned a full defense verdict.  

Premises Liability Case Involving “Eggshell Plaintiff”

A 27 year old plaintiff filed a premises liability claim against a fraternal organization arising out of injuries the plaintiff allegedly sustained after falling down stairs on the defendant’s premises and suffering an ankle fracture. Plaintiff alleged that a loose handrail caused her to fall. Plaintiff underwent an initial surgery and a subsequent hardware removal surgery. She further claimed that she suffered blood clots, including a pulmonary embolism, as a result of the occurrence and was required to be on blood thinners for the rest of her life.

Jessica Biagi vigorously defended the fraternal organization over the course of a 6-day trial, where over 12 witnesses were presented including the surgeon, three hematologists, and the physical therapist. Plaintiff presented three post-occurrence witnesses who testified that the handrail moved one to three inches in each direction. Additionally, Plaintiff called an architect who opined the handrail was unsafe and violated applicable building codes as well as a hematology expert who opined that the blood clots and need for lifelong medication was related to the occurrence. Plaintiff asked for a verdict in the amount of $1,520,031.12.  However, Jessica made the case that the handrail did was not the cause of Plaintiff’s fall, and within only one hour of deliberation, the jury agreed and returned a full defense verdict.  

Costello Wins Catastrophic Tent Collapse Case

Dan Costello and Shipra Mehta won summary judgment in a catastrophic case involving twenty-three injured plaintiffs including two fatalities claims and 21 other serious injuries arising out of a tent collapse at an Illinois summer festival. This case had high publicity and was featured in the Chicago media for months following the accident. With minimal discovery, this matter was pushed towards a motion for summary judgment based on the lack of duty owed and lack of proximate cause due to the event coordinator/planner’s narrow role in the event. The numerous cases had been consolidated by the Court for discovery purposes only.

Another Solid Victory for Costello Legal from Partner Andrew Smith!

Partner Andrew Smith wins premises liability case where the plaintiff claims he suffered a fully ruptured achilles on a dangerous condition in our client’s yard.

At trial, Plaintiff requested $351,000 from the jury, relied heavily on the sympathy factor of his alleged pain and suffering, and attempted to contort the evidence to obtain a judgment against his mother. In defense of the defendant, we asserted that she did not owe her son a duty as she did not know the condition was dangerous and was not aware that she should have warned people in the yard about the condition. We proposed two special interrogatories concerning whether the condition was dangerous and whether the defendant owed a duty to warn of the allegedly dangerous condition.

After an extended deliberation, the jury found in favor of the defendant, finding that she did not owe Plaintiff a duty to warn of the condition of the yard even though they found the condition was potentially dangerous. The jury answered the special interrogatories consistently with the verdict, finding that the condition was potentially dangerous but also finding that the defendant did not have a duty to warn her guests of the alleged condition. The jury’s deliberation centered solely on the issue of liability and they did not appear to discuss potential damages.

Another Stunning Verdict from Costello Legal

Partners Daniel Costello and Jessica Biagi successfully defended a steel fabricator and their employee driver in a wrongful death claim.

The case went to verdict on September 5, 2018 wherein the plaintiff’s asked the jury for $14.25 million on behalf of six heirs to the decedent. The decedent plaintiff was a 44 year-old ivy league educated physician from Yale and Brown. He was killed in a car accident where plaintiffs alleged that the defendants’ truck failed to yield while making a left hand turn, in turn causing the collision and explosion of plaintiff’s motorcycle which led to his death. After an 11-day trial, the jury came back with a $1.3 million verdict; even less than the defendants’ last indicated offer at mediation.

Dan Costello to Serve as LMI Professor 2018

FOR IMMEDIATE RELEASE: (August 22, 2018) – The Claims and Litigation Management Alliance (CLM) is pleased to announce Mr. Daniel Costello to serve as professor at the 2018 Litigation Management Institute held on October 18 – 21, 2018 at the Loyola University Chicago – School of Law in Chicago, IL. He will be presenting on “Coverage Prospectives” dealing with the intersection of construction, catastrophic loss, and insurance coverage issues which create legal and ethical dilemmas. He will be presenting with Stephanie Haas, Vice President and Assistant General Counsel of QBE North America.

Daniel Costello, managing partner of Daniel P. Costello & Associates, LLC, has years of experience concentrating in construction litigation, complex litigation, litigation management, professional liability, and insurance coverage matters. He actively works with insurance companies to improve their litigation management and claims handling protocols. He has also acted as an Instructor at the Litigation Management Institute (LMI) hosted at Columbia Law School in New York. In 2014 he was recognized as a finalist for CLM Outside Counsel of the Year award.

In addition to his substantial legal experience where he has handled over 100 major jury trials, arbitrations, and mediations, he also has substantial corporate business experience. In his time working for a Fortune 500 insurance company he became the youngest AVP of Claims Litigation in the history of the 90 year old company rising to the position in only five and half years. During that time he also focused his attention on litigating the most complex and catastrophic loss cases across the country. His bar admissions include the United States Supreme Court, the United States 7th Circuit Court of Appeals, U.S District Court for the Northern District of Illinois Trial and General Bar, U.S. District Court for the Northern District of Indiana Trial and General Bar, the Illinois Supreme Court, Pro Hac Vice to Indiana state courts, Pro Hac Vice to the Supreme Court of North Dakota 2005, Pro Hac Vice to the Supreme Court of Louisiana 2005, and other states.

About the CLM:

The Claims and Litigation Management Alliance (CLM) promotes and furthers the highest standards of claims and litigation management and brings together the thought leaders in both industries. CLM’s Members and Fellows include risk and litigation managers, insurance and claims professionals, corporate counsel, outside counsel and third party vendors. The CLM sponsors educational programs, provides resources and fosters communication among all in the industry. To learn more about the CLM, please visit www.theclm.org.

Contact:

Susan Wisbey-Smith, Chief Communications Officer

Claims and Litigation Management Alliance

susan.wisbey-smith@theclm.org

Costello Legal Welcomes Two New Partners

Costello Legal has added Partners John Pirra and Peter Syregelas to the firm. The move allows the firm to broaden its litigation expertise in employment, coverage, and appellate work. The firm continues to expand both in the diversity of practice, and the geographic scope of its work. Costello Legal currently handles all of Illinois and Indiana for several clients on litigation work, and has a national litigation management practice.

Managing Partner Dan Costello extolled the new partners value to the firm in recent comments “The two new partners bring different strengths to the firm. With Peter’s extraordinary experience in construction and CGL coverage litigation we bring one of the strongest coverage attorneys in the Midwest to our practice. Also working on over 100 appeals Peter will continue to act as a leader in the appellate industry.” His industry knowledge and experience will provide additional value to existing clients.

Peter Syregelas will chair Costello’s Insurance Coverage and Appellate Practice divisions.

Peter Syregelas started his career serving as an elbow clerk to Illinois Appellate Justice Robert Gordon, where he drafted over 100 precedential opinions and dispositive orders on all types of civil and criminal cases. He then spent nearly 10 years at a well-known defense firm, where he was elevated to Partner after only five years, serving insurance industry clients as coverage and appellate counsel.

His extensive coverage experience spans several lines of coverage including general liability, commercial general liability, professional liability, errors and omission, directors and officers, homeowners, personal and business auto, and related policies of insurance. Peter’s experience includes finding solutions to complex legal and coverage issues.

He is an experienced appellate lawyer and has participated in many landmark appeals, including one before the Illinois Supreme Court, where Peter wrote the brief successfully challenging the constitutionality of Public Act 98-1132, Senate Bill 3075, which reduced the number of jurors in a civil trial in State of Illinois from 12 to 6.

John Pirra comes to the firm from “Big Law” where he was senior counsel at Kelley Dyre. In that role he focused on employment discrimination claims, FLSA, white collar criminal investigations, John has also been a member of the national litigation coordinating legal counsel for a prominent Fortune 500 company where he coordinated and directed local litigation counsel around the country.

John Pirra has spent the last 16 years as a top litigation attorney in construction, employment, medical malpractice, complex litigation, and transportation. He comes to Daniel P. Costello & Associates, LLC after spending the past eight years working with in house counsel and risk managers at top flight national and international companies.

Dan Costello to Speak at Aon/Inpoint Claims Conference

Dan Costello will be speaking at Aon/Inpoint’s Claims Conference on Analytics and Insights in Chicago on July 11, 2018. This invitation only conference is focused on industry leaders in the P&C insurance industry, and provides insight in quality, productivity, and benchmarking. Aon Benefield, Inpoint’s parent is the second largest insurance brokerage company in the world. The conference also brings together top thought leaders from throughout the United States. Mr. Costello will be speaking on “The New Normal 3.0 Customer Focused Litigation Management”. The presentation will guide C Suite and Claims Executives through the changing face of litigation, leveraging of technology, and why service matters

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.

Another 2 Impressive Wins for Costello Legal

In the first case, Metke v. Harem Irving v. Cybor Fire Protection Inc, the plaintiff, a 69-year-old woman fractured her leg after attempting to step over a “trickle of water” and wound up slipping and falling, later claiming that there must have been ice underneath the water. After she fell, fracturing her leg and requiring surgery, the plaintiff filed suit against Harem Irving, the owner of the property. Harem Irving sued Cybor Fire Protection, for testing the sprinkler system early that morning. Prior to trial, the defense had been granted summary judgment, which was later overturned by the appellate court thereby necessitating a trial.

Plaintiff requested $225,000 at the end of a jury trial for past medical bills of including approximately $100,000 in past medical bills and past and future pain and suffering. The trial lasted 4 days and included seven witnesses, including two treating physicians. For the defense, Susan Bledsoe of Daniel P. Costello & Associates fought zealously to deny fault and prove that Cybor Fire Protection Inc. did not create a hazardous condition as the plaintiff saw the trickle of water, knowingly assumed the risk by stepping over it and could have taken a safer alternative path. The jury properly returned a verdict of not guilty in favor of the defense.

The second case involved a slip and fall on ice in a parking lot. Plaintiff alleged a variety of significant and permanent injuries to his shoulder as a result of the fall. After completing written discovery and the relevant depositions, Partner Andrew Smith, with the assistance of Associate Attorney Douglas Persoon, filed a summary judgment motion on the basis that the icy condition qualified as either a natural accumulation of ice in an active parking lot or constituted an open and obvious condition. After briefing and hearing, the Court entered an order granting the summary judgment motion in Defendant’s favor.