Kristin E Poling, Claims Executive at UK Club, and Mark Calzaretta, Magna Legal Services (magnals.com) have contributed to an article on the role of jury research tools in the battle against “nuclear” verdicts – ones for large amounts of money that bear little if any relation to the economic suffering of the plaintiff.
The UK Club said that it was “no stranger” to the sudden increase in ‘nuclear verdicts’ around the US, and it was a major part of the discussions during the recent Thomas Miller Bodily Injury Seminar. Mark Calzaretta of Magna Legal Services gave a presentation on the value and purpose of the jury research tools available in order to protect against nuclear verdicts.
He said that the pandemic had altered the way juries in the US thought about case values and, in turn, had led to increasingly inflated verdicts. In a survey performed by Magna Legal Services, it was noted that 76% of jurors now believed that corporations lied. Adding to this, 71% of jurors did not support imposing a legal cap on jury awards. Indeed, 30% of individuals polled thought that it would take “billions of dollars” to send a message to corporations, with 45% being willing to ignore a judge’s instructions.
Calzaretta thought that this could be attributed in part to the deteriorating economy and general dissatisfaction with the way things were going in the US. To put a final percentage on it, 77% of individuals polled believed that the pandemic had been used as an excuse by corporations to raise prices. As a result, juries now looked at themselves as “guardians of the community”. This meant that they felt an obligation come up with large awards in order to change the perceived “bad behaviour” of companies.
Calzaretta said that there was a clear imbalance of justice when a company went before a jury in a claim brought by an individual. However, he said that there were several tools an entity can utilise to give itself a better fight and protect against ‘nuclear verdicts’. These included:
- Online focus groups
- Traditional mock trials
- Witness preparation
- Social media sweeps
- Graphics consulting
- Multimedia trial preparation
Generally, the higher the stakes, the more resources a company would want to invest in such tools.
With the increase in the use of digital technology since 2020, online mock trials were now an option. Calzaretta said that these were a bit more cost-effective than an in-person mock trial. They typically involved between one and 10 panels of mock jurors recruited from the relevant venue for each case. Each mock trial is a half-day exercise and allows attorneys to present their case via webcam, using evidence slides and video excerpts. At the end, the jurors engage in real-time deliberation discussions and provide case verdicts.
The technology developed in this field has become so advanced that every aspect of a mock trial is analysed and assessed. A defendant can receive notes on the highest and lowest points of their trial, and is provided with tips on how to amend their pit falls. This feedback can be essential to preparing a trial before jury.
However, he conceded that it remained an uphill battle for defendants going before a jury in trial. “No matter the research tools available, the overall anti-corporate sentiment of jurors will remain the same for the foreseeable future. However, knowing when to settle and when to battle will help to reduce the uptick in nuclear verdicts”, he concluded.
Mark Calzaretta is Partner and Executive Vice President of Litigation Counselling for Magna Legal Services.