IMS Insights Episode 46: Integrated Case Themes & Nuclear Verdict Causes

IMS Strategy Consultant Dr. Clint Townson discusses the benefits of early case theme development and the factors leading jurors to award massive damages. (Part 1 of 2)

IMS has delivered strategic litigation consulting and expert witness services to leading global law firms and Fortune 500 companies for more than 30 years, in more than 45,000 cases. IMS consultants become an extension of your legal team from pre-suit investigation services to discovery and then on to arbitration and trial. Learn more at imslegal.com.

Transcript

Hello and welcome to the IMS Insights Podcast. I’m your host, Adam Bloomberg.

Today, we’re speaking with IMS Strategy Consultant, Clint Townson, PhD about the benefits of early theme development, factors leading to nuclear verdicts, and the increase in these massive damage awards.

Dr. Townson specializes in designing and executing mock trials, focus groups, and community attitude surveys that guide early case strategy and development. His background in communication theory, research, and statistical analysis enables him to help clients gain successful outcomes.  

Adam Bloomberg:

Clint, thank you for joining us today.

Clint Townson:

It's good to be here, Adam. I'm looking forward to this discussion.

Adam Bloomberg:

All right, so first, I got to ask. Michigan State University, third generation Spartan. What was that like growing up with that in the household?

Clint Townson:

I mean, you become pretty obsessed with one team, and I think obsessed is the right word. I bleed green and white. There's been so many memories over the years, not only through when I was in college, but before I went to college, going to Michigan State Games with my dad. And it's great to be able to share something like that with the entire family. And I will continue to be as Spartan until my last days, even when they're not so good.

Adam Bloomberg:

Well, I'm a first-generation Horn Frog, so I understand how big of a deal football is. But any other sports from that time that you enjoy watching or going to see?

Clint Townson:

Oh yeah. I mean, I remember going to the famous Izzo camp with Tom Izzo and meeting the man himself, getting some coaching tips in my footwork and the like, and when I was, I think, in fifth grade. So I've always been a basketball lover to begin with and they've had a good program, obviously for a very long time. But I'll watch the hockey, I'll watch lacrosse, I'll watch MSU's baseball, soccer teams. I mean, any of the Spartans, I will cheer them on.

Adam Bloomberg:

That's awesome. Okay, so let's jump into it. Three degrees in communication. That's a lot of time and a lot of work. I read that you became interested in the law due to a project on the CSI effect. I'm wondering, could you tell us a little about that and what intrigued you about that?

Clint Townson:

Yeah, I mean, I was really lucky at Michigan State. They offered a specialty communication course called Communication in the Law, which dealt with a lot of the issues that I deal with today in my career. Things like pre-trial publicity, witness credibility, and things like that. And one of the subjects that we talked about was the CSI effect. And I was invited to do a thesis project in that class, and I thought that was really interesting. I wasn't a huge CSI lover myself, but I was curious about how jurors’ viewership of something like CSI or other TV shows would impact their decisions in the courtroom. And it ended up being a really fun project and it actually led me to eventually to a conference called the American Society of Trial Consultants Conference, which I'm still a member of. And I know IMS is a proud partner with them, and lot of history after that. But it was a fun start into this career.

Adam Bloomberg:

So what was the first case you worked on? Not naming names here, but what type of case was it and what was your experience like?

Clint Townson:

My very first cases were actually doing social media work, social media research on jurors during a jury selection. And I don't remember the exact first one. It was a lot of different cases going on at once, but the first one that stood out as being important work was actually a civil rights case where it was a police brutality type case. And it was really interesting just delving into those issues and looking at the people who were eventually going to be making decisions in that case. I mean, it was an important decision and an important verdict. And I think I really enjoyed becoming a little more immersed in the process, really focusing in on that. And I think that was one of the first cases, but I was eager for more variety.

Adam Bloomberg:

So as part of your work as a jury consultant, you often work early in cases. Sometimes well before discovery is over, and oftentimes when a case is filed. So why don't you describe the sorts of work you do early with trial teams to help focus them in a case?

Clint Townson:

Yeah, I mean, a lot of the work that we do through something like a Mental Mining® can often illuminate things about a case that attorneys haven't really thought of as being all that important. And that's not to say that the attorneys just weren't paying attention to it, but it's offering a fresh perspective, offering a new set of eyes on their facts and trying to get into the heads of what jurors eventually might notice about their case, whether we're going to see it in research or whether we're going to see it at trial itself. And when you do that early in the process, early in the trial process, that opens the door to a whole host of ways you can address certain issues, certain vulnerabilities or otherwise that you may have. So you think about things like adding in an expert to address something that was raised in a Mental Mining®, that it's like, we don't have anybody to instruct jurors on this specific issue, we need to look into that.

You can also imagine things like theme development, things like preparing witnesses for depositions with themes in mind. Those kinds of things can be super helpful. And then a lot of the clients that we're working with are contacting us with a mediation in mind. They talked to us about their very first mediation in the case, the dates that are important that are coming up. And they might mention, “Oh, we've got a mediation coming in a couple months.”

Mental Mining® can be very valuable going into a mediation, having thought through, okay, here's how we want to structure our case at a macro level. Here's where our strengths lie, here's where our vulnerabilities lie. And being able to go into a mediation with that information well salted down, well figured out, and really rigorously tested in some capacity can be a huge advantage for the attorneys because you feel more confident in your position. You feel as though you're able to anticipate the other side's attacks, and you feel as though you've got this strong foundation for your case that if the mediation isn't successful, that you feel good about it going forward and moving toward trial.

Clint Townson:

And what we've coined the term Mental Mining® to mean is really an exhaustive session with the trial team itself, and one of our strategy consultants, often in addition to a jury consultant or trial graphics person, really to dig into issues. The way I visualize Mental Mining® is attorneys have often spent months, sometimes years delving into the issues really in the weeds on some of these cases. And they've built up the structure of what they think the case is. What a Mental Mining® can do is pull apart all those pieces, examine the individual parts, look at how the witnesses fit together, look at how the facts fit together, and then rebuild something that in theory is stronger, it's more robust, it's well aware of the vulnerabilities and it addresses those vulnerabilities or shores them up. And it also leverages the strengths that you have. 

Oftentimes, one of the simplest things a Mental Mining® session can do is identify a core strength at your case and figure out a way to thread it in throughout every theme, thread it in through all the witnesses and really make it a pillar of your case. And the reason that's valuable is if you go into mediation with that all figured out, again, you're stronger in your position, but even if you've just got that figured out right before trial, that leaves you with a stronger story essentially to tell the jurors.

Adam Bloomberg:

Can you discuss any high-profile cases that you've had recently where the jury research or any of this consulting that we're talking about, theme development, Mental Mining®, that those aspects were really critical to the outcome of the case?

Clint Townson:

Sure, yeah. We worked on this one recent case where we did some theme development and actually helped write the opening script for a big high-profile case, high profile enough it was in newspapers and alike. And it's pretty cool to see the words, the actual verbatim words that you and the team came up with together printed on the front page of the LA Times, for instance. I mean, there's not a much higher high than that. And seeing that and seeing not only that it resonated with the media, but you've got a good argument that resonated with jurors. We ended up winning that case and we felt really good about it; that’s great to see. So working with trial teams that are already really confident about their story and it's just about what we're trying to do is give them the platform and give them the words and just refine things so that jurors can understand them and give jurors repeatable things, like some of those lines that were printed, to be able to reiterate in deliberations.

And again, just carry the deliberations for our side. We also had a recent Mental Mining® and research exercise that we did for a big trucking case in Texas that the client came back to us afterward and said it was immensely valuable in getting the case to settle because they felt so confident in their position going into a mediation that they were basically holding a position that they wouldn't have felt as confident holding before. They were astounded by some of the feedback they got from the jurors in both a good and a bad way. They said both good and bad things, but that feedback is so important to have when you have cases like that, that are a little bit unclear, you're not really sure what's going to happen. Because again, if nothing else, it's going to give you the confidence going into a mediation or confidence going into trial that just accentuates your entire argument.

Adam Bloomberg:

So you made me think of something with transportation cases. I know in East Texas right now there's a venue and a few attorneys out there that have been getting these massive damages awards. I guess the term right now is nuclear verdicts. I noticed that your dissertation was on the psychology of damage awards. So I know you and other IMS consultants have been monitoring the recent upticks in this, but maybe talk a bit about what you're seeing with nuclear verdicts?

Clint Townson:

Yeah, I mean they have been making headlines everywhere. In, Texas most notably, there was the Charter Spectrum verdict not that long ago that was originally for $7 billion and recently reduced to just a billion, a lot of money. There was another case in Georgia where it was a rollover accident and in which Ford was being blamed and the jury came back with a verdict of $1.7 billion. I mean, it used to be that nuclear verdicts were considered something above $25 million. Nowadays we're seeing them in the hundreds of millions and sometimes billions. It's a little scary for a lot of attorneys to be seeing out there. Where I think the most concerning thing is certainly a lot of these have been in Texas. We do a lot of work in Texas. A lot of the cases that I've worked on have been in Texas, and there's certain venues that seem to be just a little bit more inclined to result in those kinds of verdicts.

But the thing that we're noticing now is there's a little bit more variability in it. That Ford case I just alluded to was in Georgia. A couple weeks ago there was a case in Chicago where the final verdict was $336 million against a gas plant. So these are happening in different venues, and certainly there are some parallels and some commonalities between these cases. There would have to be, otherwise, the awards wouldn't be that big. But the difference being, it just seems like they're popping up more often and in more locations.

Adam Bloomberg:

Yeah. So what do you think the common thread is with these sorts of outcomes? Venue aside, maybe what's the strategy in these cases that these attorneys are using for such large amounts?

Clint Townson:

Yeah, I mean you'd have to think it's something going on with the jurors themselves. It can't just be something about these cases in particular because the cases are so different. I mean, one involves a cable company where the technician was the person ultimately implicated in the murder. Different one is a product defect type of case where it's a design in the car itself that plaintiffs are going after. You're talking about very, very different fact patterns here, and yet both of them resulting in billion-dollar verdicts. So the common thread there seems to be some emotional, psychological fact in the jurors where typically you only see big damages like that when there's this sense of emotional outrage from jurors, essentially that jurors have to get really angry or they have to get minimally very frustrated with what a defendant is doing and feel as though the big number is going to send them a message of some kind, right? 

That by awarding that huge verdict that the company itself, the company in question here, but also the industry as a whole is going to take notice of what just happened in that case and a warning sign that those companies need to be doing better, otherwise you could face this verdict. And that seems to be what's happening here. There's certainly some commonalities in terms of the plaintiff's approach, but it seems to go beyond that. There's got to be something going on in terms of juror psychology. Because you alluded to my dissertation, which was on anchoring effects and this whole idea that one of the foundational pieces of anchoring is if you ask for more, you get more money. Well, in these instances, the jury actually came back with verdicts that were bigger than what the plaintiff's attorneys asked for. How does that happen? It's happening because the jurors are outraged.

Adam Bloomberg:

So the plaintiff approach you are referring to is something that we've all heard for the last, what, five, seven, eight years, the reptile theory. So how do you see that factoring into these examples?

Clint Townson:

Yeah, I think it's less reptile theory. In which in my academic experience, reptile theory doesn't have any psychological or neuroscientific basis. Instead, it's more about juror's attitudes coming into these specific cases. What are the biases? What are the opinions? What are the beliefs that they're bringing into these cases when they start out? And I've actually given a series of talks about the five factors that a plaintiff can exploit in order to get at these nuclear verdicts. And I think that's really what the reptile theory is about, is getting at those five factors to really drive those giant verdicts. Luckily these are supported by those cases that I just talked about, because they’re all present in some capacity. The first one is just bad facts. Acknowledging the fact that your case has some bad facts if you’re on the defense side, that there are just some bad things you cannot work around or you cannot get out in MIL (motion in limine) or whatever it may be. 

The second fact is the company or the industry with a poor reputation or history. So, you think too, the Charter Spectrum case, cable companies are not all that well-liked by most jurors. I don't think that's a stretch to say most jurors have had at least one negative experience of the cable company. So that's not exactly a company that's going in with a great reputation or a great history in the eyes of the jurors. The third factor is a liberal venue. Obviously, you're more likely to see these kinds of awards in venues that slant Democrat, that voted for…if you look at the 2020 election data, generally speaking, they voted for Joe Biden at rates of 60%, 70%, or more. So the liberal venues tend to be a little bit more generous in terms of their verdict outcomes and the like. The fourth factor is a compelling anchor.

Obviously, it's important for the plaintiff to ask for something they need to give jurors. Basically, I think of it as a starting point. An anchor is not the number that they're going to go with no matter what. It's a starting point for them to work on their deliberations from. So when a plaintiff asks for $500 million and they're able to make a compelling case for why $500 million is a fair verdict in the case, whether it's through their experts, whether it's through some model of here's everything that they've lost, whether it's through just making a compelling case. There's an instance I can think of where we were working on a wrongful incarceration case where the compelling anchor was this is the total amount of money, but that equals “X” amount of dollars for every day this man spent in prison for a crime he did not commit. That's a pretty compelling argument to make, right?

If you're putting it in the light in the context of this is per day, this is what he deserves. So, that's the fourth factor. The fifth factor is a strong damages expert. Really having somebody who is not only credible but is able to teach damages to jurors. Jurors often feel overwhelmed by things like a regression analysis or a cost factors analysis or all these statistical terms that they don't really understand what's going on. All they figure out is, well, it added up to this thing based on what this guy said. A really strong damages expert, one who can teach the jurors, who can simplify things and really come in and tell the jurors, this is how I show. Basically, you show your map, this is how I ended up there. That can be very effective. And when you have all five of those things together, that's where the conditions are right for this kind of verdict. These nuclear verdicts really happen when those five things fall into place and a plaintiff's attorney is basically sitting and ready to take advantage of those things and recognize those things in order to get a bigger verdict.

Thank you to Dr. Clint Townson for speaking with us today, and a special thanks to our listeners. 

At IMS, we’re trusted to deliver consulting services to the most influential global law firms early with Pre-suit and investigation services, then in litigation during discovery, arbitration and trial. It’s been our privilege to serve our clients on more than 20,000 cases and over 2,000 trials. Be sure to subscribe to our podcast and join us next time on the IMS Insights Podcast.