Jury selection is key to avoiding shock verdicts

August 3, 2022 – Shock verdicts are making headlines. They are part of the public consciousness. What is not so clear are the numerous defense verdicts. Business is won, you just don’t hear about it. But what you hear about are those shock verdicts that are discussed at case evaluation roundtables and among jurors.

There are several examples of these shocking verdicts across the country, but none is more telling than the Dallas jury verdict in June of $375 million in compensatory damages for the stabbing death of a woman in 83 years old by an employee of a cable company. That jury also found gross negligence and awarded an additional $7 billion in punitive damages in a bifurcated jury trial on July 26, 2022. Judgment has yet to be rendered in that case.

The source of growing shock verdicts

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According to a November 2021 blog published by the Insurance Information Institute, these types of shock verdicts could be due to social inflation. (Jeff Dunsavage, “What can be done against nuclear verdicts», Insurance Information Institute (November 29, 2021)).

Driven by a generation of declining public confidence in business, “social inflation” is a buzzword that describes the phenomenon of unexpected increases in claims costs established in the United States and rising globally. due to many factors, such as economic inflation, ramifications of the global pandemic, social unrest, polarization of society on various issues, and accumulation of corporate distrust.

In 2020, the Insurance Research Council released a study examining the phenomenon of social inflation, finding that insurer losses across many industries have rapidly accelerated in recent years beyond what the economic inflation can explain. (Jeff Dunsavage, “IRC study: Social Inflation Is Real and It’s Harming Consumers and Businesses,” Insurance Information Institute (June 2, 2020).

Given the polarization of our society since COVID-19 and the consequences of the pandemic, the impact of social inflation has reached unprecedented territory.

People who have traditionally been unwilling to serve as jurors are now eager to “send a message” to corporate America and right the wrongs they perceive in society. In other words, they have found a voice and the plaintiffs’ attorneys are happy to give them someone, the plaintiff, to support at trial.

Persuasion Strategies, a team of nationally recognized litigation consultants, has turned its decades of research studying jury-eligible Americans across the country into a proprietary Anti-Corporate Bias Scale (ACBS) in collaboration with the University of Nebraska, Lincoln – a reliable and valid measure that identifies dozens of predictors using just seven questions. The results were useful in identifying jurors who might want to “send a message” to a corporate defendant. (Corporate Bias Persuasion Strategies Scale).

Trends and Predictors in Jury Selection

We have always known that jury selection is to some extent a science and to some extent an art. However, here’s the new twist – it used to be that political affiliation alone was a good predictor and indicator of various issues, but that’s no longer the case.

Persuasion Strategies’ BigJury Database includes data from more than 12,000 mock jurors and potential jurors, providing the ability to analyze, predict, and apply artificial intelligence (AI) to illuminate issues in dispute. . Their data mirrors what the Pew Research Center noted in its 2015 study on party affiliation, education, and other characteristics — critical distinctions between political cohorts that match education. “A Deep Dive into Party Affiliation,” Pew Research Center (April 7, 2015).

Specifically, uneducated conservatives are the strongest anti-corporate jurors we have today. While conservatives with a higher level of education are still anti-corporate, they are more willing to listen to a corporate message and be more moderate in their rewards. As the Pew study shows, 81% of the “populist right” think corporations are making too much profit, compared to just 21% of “committed conservatives” who think the same.

One suggestion for combating anti-corporate sentiment is to establish credibility and humanize the business. Organizations and the lawyers who defend them can tell the company’s origin story and try to focus on what good companies do for communities, including hiring employees, creating jobs and supporting communities. charities. Restore business confidence. After all, where would we be as a country without them? It will be essential for the lawyer to achieve this objective at the outset of the case through a voir dire.

Explicit questions about these issues should be posed to the contestant and raised to weed out opposing jurors. Once potential shock jurors have been identified, it’s important to get them talking about their beliefs and their strong commitment to those beliefs, and to build a case for challenging those jurors for a cause – and winning. In the absence of an opportunity to excuse such jurors for cause, a potential appeal record may be established.

Once the jurors have been identified by the defense as those who appear to be the most reasonable and open-minded about hearing the evidence, whether to give the defendant company a fair chance and to the obligation for the plaintiff to bear the burden of proof, it will be important to keep them under the radar of opposing counsel, keeping them discreetly in the jury.

How to Avoid Headlines

Jury selection is critical and more important than ever in this age of polarization. Examining a single juror’s characteristics or political affiliations, while helpful, is no longer sufficient, as it once was. We need to start looking at identifier clusters.

Persuasion Strategies identified two key predictors of “juror-aggravating harm”: (1) anti-corporate bias (which is now combined with a unique combination of political leaning and educational level) and (2) mentality of punishment.

Lawyers involved in jury selection should focus much of their energy on jury selection by striving to assess – at the outset of a case – the type of jury their client wants or needs. needs and the jury his client doesn’t want. It is important that this jury profile be refined as the case progresses until jury selection begins.

Voir dire must consider the totality of the circumstances and use a very case-specific approach, assessing every aspect of the case, from the theory and overall themes, to the details of the witnesses involved, to the evidence that should be presented. This approach has always met with great success, but it is more meaningful today with the stakes rising every day.

Lawyers need to improve their jury selection skills. Again, careful attention to an anti-corporate bias and punishment mentality must be determined through various questions and answers during the voir dire. These attitudes can be determined both by verbal responses and, just as importantly, by non-verbal cues, such as pauses in the juror’s responses or hesitation and doubt in their facial expressions and body language when speaking. it responds to his ability to be fair and impartial with respect to certain issues or parties involved in the case. Once harmful attitudes are identified, flag them for the record with challenges for cause.

If a witness has reliability issues, focus on identifying jurors who are particularly sensitive to lies or changing stories or who will otherwise be skeptical of dubious claims. Jurors should be questioned and challenged about their potential responses to pleas of sympathy for the plaintiff and their ability to treat corporate defendants fairly.

Trial counsel should pay attention to comments made during jury selection and remind the court and jurors of key moments related to the jury’s oath to be fair, impartial, and reasonable, and to deliver their verdict without passion, sympathy or prejudice.

Conclusion

Trial counsel must be knowledgeable and experienced and adhere to the specific objective of guarding against potential jurors who might favor shock verdicts. They must integrate in the trial and in the final argument the importance of the evidence; to be free from passion, prejudice and sympathy; and the fair treatment of corporate defendants.

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The opinions expressed are those of the author. They do not reflect the views of Reuters News, which is committed to integrity, independence and non-partisanship by principles of trust. Westlaw Today is owned by Thomson Reuters and operates independently from Reuters News.

Martin E. Berry