Author: Stephen Haynes
Insurance companies and their counsel are all too aware of the proliferation of multimillion-dollar verdicts, and even Nuclear Verdicts®, across the nation in the post-pandemic era. Why? What has changed? Besides the obvious workplace changes and renewed emphasis on quality of life driving decision making, we need to ask ourselves, “Have juror attitudes changed?”
According to one survey from California, the answer is: Yes!
According to this survey, plaintiffs’ attorneys are enjoying a more positive public perception. They’re shedding their ambulance-chaser image. Fifty-eight percent (58%) of those surveyed reported a positive view of “lawyers who represent injured people in lawsuits.”[i] Only 13% had a negative view of plaintiffs’ lawyers![ii]
Meanwhile, corporations and corporate lawyers fared poorly. While 27% of people surveyed viewed corporations poorly before the pandemic, the new post-pandemic survey found 45% viewed corporations negatively, a significant increase.[iii] The lawyers who represent corporations did not fare much better. Attorneys representing corporations were viewed negatively by 37% of respondents.[iv] Only 23% had a positive impression of attorneys representing corporations in lawsuits.[v]
Finally, 77% of respondents said they favor punitive damages to punish corporations, up 8% from before the pandemic.[vi] A hefty 62% of those said they believe an important function of juries is to send a message to corporate defendants with the goal of improving their behavior.[vii]
Did that last statistic remind anyone else of the reptile theory? It should! And it should spell danger.
So, how are civil defense lawyers supposed to address this perilous landscape in the courtroom? Well, here is the key nugget in the survey: 91% of respondents agreed: “How a company responds to a mistake it makes is just as important as the mistake itself.”[viii] What?! Are we not taught to keep any changes the company makes in response to an accident out of evidence? If that gets into evidence, you might as well confess liability right then and there! Is that not Defense Lawyer 101?
Actually, it is just the opposite.
The fact is, times have changed, and the old way of doing things – e.g., deny, deny, deny,– just does not work anymore. Instead, the defense must accept responsibility for something in every case.
Defense lawyers may be trembling in fear at the thought of doing this, but accepting responsibility is absolutely critical to defusing the juror anger at the heart of Nuclear Verdicts®. Importantly, accepting responsibility is not the same as accepting liability. Accepting responsibility makes the defense the most reasonable person in the courtroom empowers the jury to use their own common sense when evaluating the evidence and deciding these cases, and invites jurors to consider who else may be responsible. Accepting responsibility is paramount to achieving a fair and reasonable outcome, especially in light of the changing attitudes of jurors!
For those who ask what a California survey has to do with Texas, they need only look to the verdicts in Texas in the last 2 years. Juror attitudes are changing in the Lone Star State, too, and if the defense bar does not acknowledge this and change the way they defend cases, the proliferation of Nuclear Verdicts® will continue unabated. And we do not need a California survey to figure that out!