In addition to making their views known at the ballot box, citizens can similarly broadcast their sentiments in the civil jury box. While they’re asked to merely make a factual finding limited to a specific dispute, the verdicts can read as a more generalized message about their feelings about the state of the country and the world. This is part of the thinking surrounding so-called “nuclear verdicts” (a term businesses and insurers use to describe civil awards of $10 million or greater), which are increasing, experts say, due to a broadly felt dissatisfaction driven by a large number of factors.
A recent Wall Street Journal article points out that such awards are increasing – up 27 percent in 2023, with mega-nuclear verdicts (those over $100 million) reaching a record in 2023, a level four times greater than what they were as recently as 2013. Talking to attorneys, executives, consultants, and insurers, the article notes that these verdicts seem to be driven by “social inflation,” or a desensitization toward larger numbers, but also and more specifically by anger and a desire for accountability directed at corporations and other perceived elites. Plaintiff’s attorney Gary Dordick, who recently won a $900 million verdict against entertainment billionaire Alki David, is quoted in the WSJ piece: “Lawsuits and the right to hold corporations accountable are what make them do the right thing. Left to their own devices, they would not.” Enough jurors seem to agree with Mr. Dordick, and that squares with the often punitive purpose I see in mock trial discussions even when punitive damages are not being sought.
A recent report out of Illinois State University (Brune et al., 2024) seeks to dig into the socioeconomic and legal factors that are driving these nuclear verdicts. The authors are not looking at individual jurors, but at venue characteristics that separate those counties with a higher and a lower number of nuclear verdicts, and focus on two poster-child jurisdictions for nuclear verdicts: Cook County, Illinois and Gwinnett County, Georgia. In drawing from this work, I focus on those factors most likely to matter in selection and/or case assessment, and I will divide these factors into categories: The long-known “likely suspect” factors, and the more novel “new-normal” factors that are emerging post-pandemic.
The “Likely Suspect” Factors:
1. Age. The Illinois State University researchers note that the median age for jurors is getting older because fertility rates have declined by nearly a quarter in just the past 20 years. At the same time, slowly but surely, younger individuals (Millennials and Gen-Z) are progressively entering the jury box, and those younger jurors are somewhat more likely to favor a plaintiff and to favor higher damages.
2. Race. It should come as no surprise that the experience of being a racial minority in the U.S. changes the way that the narratives of the powerful are perceived. The authors observe that counties returning fewer nuclear verdicts tend to be mostly white, while the counties returning more nuclear verdicts tend to be more balanced with white and black residents. While a potential juror’s race won’t be a proper consideration for jury selection, the composition of your venue is a factor to consider in assessing your risk and case value.
3. Politics. The perceptions that liberals are more likely to be pro-litigation and pro-damages are borne out in this research. Counties with a higher proportion of Democratic voters are more likely to find for plaintiffs and to return higher verdicts than counties with a higher proportion of Republican voters.
The “New-Normal” Factors:
4. Anti-Corporate Sentiment. Distrust and other negative views of corporations have been traditionally high in this country but have increased and become more of a bi-partisan phenomena in the wake of the Covid-19 pandemic. The ISU researchers focus on a survey of potential jurors conducted in 2023 by Orrick Litigation showing that 62 percent say an important function of a jury is to “send messages to corporations to improve their behavior” and 77 percent believe punitive damages should be used to punish corporations.
5. Pro-Litigation Sentiment. The old disparagement of “ambulance chasing” attorneys has been turned on its head. The same Orick research shows that more than three-quarters of respondents (77 percent) had either a neutral or negative impression of lawyers who represent corporate defendants. This compares to a clear majority (58 percent) who have a positive view of lawyers who represent injured plaintiffs. As noted above, clear majorities also support the use of the legal system in order to police the bad acts of powerful entities.
6. Economic Grievance and Hopelessness. If you mention that the U.S. is enjoying a pretty good economy right now, you’ll often get a sharp reaction: A sometimes-rising tide has not been lifting all boats, at least not equally. The ISU researchers note that areas with higher income inequality, higher layoff rates, greater proportion of low-wage workers, and a general lack of opportunity are likely to produce higher rates of nuclear verdicts. Across all levels of education, nuclear counties have higher rates of poverty, with individuals often having little access to healthcare and other social support services. In that context, the mentality can be one of being on the losing side of class warfare, with the trial providing an opportunity to even the scales a bit.
In the context of a specific case, there are likely to be other juror characteristics that can increase the chances of a nuclear result. Specifically, anything that invokes juror anger or conveys dishonesty and a lack of accountability on the part of the parties can trigger more extreme results. There are also other factors – attorney advertising, Reptile tactics, third party litigation funding, and simple anchoring – that can lead to more nuclear results. What defendants and insurers need to do is to try to assess and control the constellation of factors that will matter in the specific context of your own case and venue.
Image credit: Shutterstock, used under license
