The risk of a large verdict has always been a major factor in any litigation. In recent years, the potential for a punitive damages instruction reaching a jury and a consequent verdict has grown as well.
US juries have not hesitated to award extreme compensatory and punitive damages verdicts.
A SELECTION OF RECENT VERDICTS
The discussion among the 35 attendees at the 2023 Maron Marvel Roundtable in Philadelphia generated shared thoughts and practice pointers worth considering and applying to address the present and evolving risk of large and nuclear verdicts. We noted specific actions that companies and insurers can consider and employ.
These points will be set out in summary fashion and are not meant to be applicable to each case. They are offered in the spirit of the Roundtable and our previous White Paper #1 from the 2023 Philadelphia meeting. These are shared ideas derived from experienced pros.
It is a challenging, if not impossible, task to delve into every reason for jury sentiment. While the group at the Roundtable this year touched on the fundamental issue of why juries are acting and reacting the way they are, that analysis is beyond the scope of this White Paper. We do plan to devote considerable attention to this issue at the 2024 Maron Marvel Roundtable in Philadelphia.
This paper focuses on the defense side of a case. It would be possible to write a similar paper on plaintiff side issues. Plaintiff lawyers are adept at managing and presenting significant cases. However, they realize the downside risk of overly optimistic claims and the effect of time on their client and the plaintiff lawyer's practice. Plaintiff counsel are open to resolution if approached carefully and early. While it is beyond the scope of this paper, a study of mega verdicts may reveal that the high levels of procedural and discovery activity and the fog of litigation can obscure definite early opportunities to resolve a case.
Before we go on, it is important to note that some cases must be tried. A defendant may not be able to resolve a matter for a number of reasons. Or by doing so, it would invite more suits or greater risk. The comments offered below are not meant to be fixed rules. Any case, particularly one which has the potential to result in a nuclear verdict, presents an intricate evaluation of risk and the application of unique strategy.
THOUGHTS TO CONSIDER
1. CLEAR, OBJECTIVE AND FEARLESS ASSESSMENT OF THE CASE
a. Data Use
Not every case with the potential for a large or nuclear verdict can be identified on day one. Case data derived from other matters may be a useful best practice.
Some companies and carriers have data from thousands of prior matters. The careful capture, selection, and application of claims and litigation data has predictive value.
It is advisable to attempt, wherever possible, to assemble and mine the usable universe of company and industry experience on claims. Captured data can identify common characteristics of problem cases such as allegation categories, similarity of factual, medical, and damage evidence, expert use and testimony, jurisdictional history, and comparison to outcomes in precedent cases. Anything that may help pinpoint the risks on a matter can add to the accurate assessment of a case.
b. Objectivity
Be candid about a case from day one. It is critical to objectively identify the potential best-case and worst-case scenarios with candor and as early as possible. While no one wants to be the bearer of bad news, leadership for any defendant needs the clearest picture possible. The C-Suite needs an unvarnished read on the case risk.
Early case assessment is noted repeatedly in all defense counsel guidelines and insurer outside counsel guidelines. Allow the case assessment process to reflect an objective and direct case risk analysis.
As a case is underway, continual, real-time assessment is critical. A thorough and careful evaluation of each material case development is fundamental.
It may be helpful to elevate any assessment and guidance decisions to a particular unit or group within the company or insurer. Many entities have complex claims groups. It may be helpful to consider a similar approach constructed around a potential large verdict/nuclear verdict case team, which has straight-line reporting to leadership.
It was noted by attendees at the Roundtable that in the case of mega and nuclear verdicts, a practice of post-case analysis is of significance. Data capture with a retrospective focus may be of considerable value: study how the case was assessed prior to trial and identify where and how the pre-trial assessment may have been inaccurate. A sports team plans for the next game, but it studies intensively the films of the last game as well.
Similarly, candid study of the actual trial can be a valuable process. An analysis of what occurred in a trial is not just the realm of the appeal lawyers. Like any forensic investigation, there is much to be learned from breaking down the individual components and placing them under the microscope to learn as much as possible for future guidance.
2. JURY TRIAL PREPARATION
a. Jury Trial Lawyers
Law firms have experienced litigators, and they are assets for any client. Litigators are experts in vital functions such as pleading, discovery, motion practice, research, depositions, identification of experts, oral advocacy, and overall case management.
Standard litigation, or even bench trials, while significant and challenging experiences for a lawyer, will not likely provide the unique issues, variability, and hour-to-hour, day-to-day adaptation demand and nuance of a jury trial.
Consider the immediate inclusion of an experienced jury trial lawyer to lead or co-lead any case that holds significant jury risk. Examine how many significant jury trials your lead counsel handled to verdict, including cases with punitive components. It is worth making this staffing a fundamental requirement and investment at the inception of the case.
The components of jury trials are as unique as they are significant. A jury trial requires knowledge of and experience with handling evidence with a jury in mind, pre-trial strategy within a jury environment, jury pool read and selection, and insightful and expert communications with a jury in opening and closing. Examination of plaintiff, corporate, fact, expert and rebuttal witnesses may be vastly different from a deposition or even a bench trial witness. Decisions on cross-examination before a jury are critical, quick, and with immediate effect.
Trial decisions involving punitive claims before juries may require even more specialized counsel.
Plaintiff lawyers are aware of the other side, and they study how the case is being managed and postured. At trial, they are acutely sensitive to the level of experience of the opposing counsel. When a defense is led by an attorney who has significant jury trial experience (and similar expertise with punitive damages jury trials), it may level the playing field. Or, at a minimum, it may not provide a real or presumed advantage to the plaintiff side.
b. Trial Team Considerations
Corporations and insurers frequently need to utilize a regional or national trial counsel as lead counsel. Sometimes this results in the presence of teams of firms and lawyers for one defendant. Partners, associates and paralegals flowing in and out of a courtroom is not a great optic. It is advisable to keep a matter as simple as possible at the counsel table. This may be impossible in multi-defendant cases, but it is valuable to keep things focused and basic at the counsel table. The jury is watching everything.
Large firms from outside the jurisdiction will frequently work together with a local counsel from the particular jurisdiction. Some counsel from outside the jurisdiction will have the experience to adapt and navigate the courtroom and the jury well. Some may not. An outside lawyer and firm may not be the best fit or, at least, may be perceived by the jury as outsiders. This is particularly significant in a case with a large jury verdict, punitive verdict risk, and an intensely local character.
An experienced local jury trial lawyer would likely understand the local court, judges, and most importantly, the local juries. The courthouse and courtroom may be the main site of that lawyer's career interaction with juries. Why not use this to a defendant's advantage?
3. RESOLUTION ORIENTED: SETTLEMENT COUNSEL
While any corporation, insurer, and counsel strive to identify optimal resolution and settlement opportunities during the case, some case profiles cry out for early and persistent attempts at resolution.
The traditional structure of litigation assumes the two lawyers who are on the point – the lead plaintiff and the lead defendant lawyer – will also somehow, someday manage to settle the case. Each side is overcome with the demands of the suit and the duty of zealous advocacy. Focus on a risk management approach frequently takes a back seat.
In any major case, the use of a settlement lawyer by a defendant can lead to a resolution that is timely, favorable, and eliminates downside risk.
A non-litigating settlement counsel's communication with the opposing side, on behalf of their client, is a confidential settlement communication protected by rule and by law. Settlement counsel, used solely to focus on ending a lawsuit, can be a valuable asset for the defendant.
This role is not a neutral or a mediator. This settlement lawyer is the advocate for their client. Their use allows for a level of communication and dialogue with the opposing side which is free of the constraints and pressures of the litigation.
It is a process separate from the litigation and does not harm the overall defense. This process enhances information flow to the client and allows for informed decision-making on resolution. Stated differently, how many large and nuclear verdicts may have been averted by early settlement attempts and focused resolution discussions through an experienced settlement counsel?
It is not a sign of weakness or lack of resolve to seek opportunities to bring a matter to a close. It is effective when a defense can use an experienced settlement counsel paired with an exceptional jury trial lawyer who is ready to try the case.
4. JURY ANALYSIS/FOCUS GROUPS
Jury consultants and focus groups can be game changers. They can also be expensive and, in some matters, of limited productivity.
Every case does not warrant a survey, focus group, or mock trial. Data from other cases, prior experience of the corporation, insurer and defense counsel, and an objective assessment of risk can identify those cases that call for an investment in focus groups and mock juries.
Jury trial lawyers and a major case risk management team working with effective consultants can identify and test particular concerns and shape before a focus group. In cases that reflect potential for large verdicts, it is valuable to engage with focus groups and similar exercises as early as possible, utilizing groups from the jurisdiction and with as close to a potential jury pool profile as possible.
Use techniques and lawyers who can present the case in as realistic a fashion as possible. Consider using an actual plaintiff lawyer as the plaintiff lawyer in any exercise. While such a roster addition may be hard to come by, it is not impossible. One flaw may be in using a career defense lawyer to present as the plaintiff lawyer. While they may be up to the task and enjoy doing so, it may not yield the best results.
Having a negative focus group or mock jury outcome is not a bad thing: it is information from which to learn and shape a case.
5. TARGETED MEDIATION
Large risk cases and those with the potential for a punitive damages instruction and award may be addressed through an early mediation process or one that is out of the ordinary.
Also, the mediation commitment in such cases can involve a process of building to a result over time. Earlier attempts with some level of agreement may be used to foster further meetings. There are a few mediators in the country who are experienced in the mega cases. They and their teams understand that some matters are impossible to resolve without multiple sessions and creative thinking.
Experience matters. Both plaintiff and defense firms know those few mediators who can help manage the mega risk case and bring it to a conclusion. While conventional thinking may be that mediation is only effective at the end of a case, it is valuable to consider earlier approaches that may identify the path to a resolution.
6. APPEAL AND LEGISLATION
While beyond the scope of this paper, it was noted that it is helpful for any company or insurer to be current on the status of any appeals and legislative activity on proposed caps and limits.
Such information may have a role at times in the actual case, particularly in resolution attempts and discussions.
Identifying appeal counsel who understands not only the law but a trial that involves a court deciding issues before a jury is added value. Rulings on evidence, for example, may take on an entirely different character when the matter involves what a jury can and cannot see or hear.
For any case, particularly large verdict potential cases, it is advisable to have appeal experts from the jurisdiction in question. Even in Federal cases, local appellate counsel may add significant value.
TAKEAWAYS
Proactive risk mitigation strategies to consider include informed data-driven insights, specialized counsel with jury expertise, ongoing and comprehensive case risk evaluations and focus groups, proactive settlement counsel initiatives, and informed appellate advocacy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
