IMS Insights Episode 47: Uncovering Juror Bias, Counteracting Nuclear Verdicts, & the Future of Massive Damages

IMS Strategy Consultant Dr. Clint Townson delves into jurors’ anti-corporate bias—including how to uncover biases through social media research and counteract them with an impactful company story—as well as ways to avoid nuclear verdicts among the recent trend in massive damages awards. (Part 2 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 how to identify juror biases through social media posts, nuclear verdicts, and the future of 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: 

So you mentioned a little bit about jurors attitudes and their beliefs and biases. So, of those jurors coming into a case, can you talk about what are the specific ones that attorneys should be looking out for in jury selection? I know you talked about liberal venues, but can you drill down a little more on that process in jury selection?

Clint Townson: 

Yeah, I mean, these are all important things that you should be looking for not only prior to jury selection, but then when you show up on the day of jury selection, you should consider them as well. I think one of the biggest ones that, certainly, several of my clients have raised is this idea of an anti-corporate bias. A lot of the liberal venues have that in place already. You think about a place like Travis County, Texas, that is known as a very liberal venue to begin with, and ingrained in that is some anti-corporate bias. But there's good reason to think that it goes a little bit deeper than that. It doesn't seem to be just, “I don't like corporations, therefore I'm going to stick it to them.” I think there's more going on, particularly as it pertains to the last two years when you've got COVID going on, you've got the Black Lives Matter movement very prominent within the last two years.

Even something like the recent Supreme Court decision in the Dobbs case, all of those things might be motivating liberal jurors to basically perform justice. Feel as though that when they are on a jury panel, they have this duty, this moral obligation, that is their civic duty at that point to provide justice, particularly if they feel as though the system is failing other folks. Again, I think that's a pretty strong attitude among a lot of liberal jurors these days, is when they have an opportunity to do something, they feel empowered to do it. Another thing to think about in terms of that anti-corporate bias is I think it runs a little bit deeper post-COVID. You have this sense that a lot of corporations did great during the pandemic while individual people were struggling. You have perceptions from many jurors that large corporations got loans that were forgiven by the government during the pandemic, and individual or small business owners did not get those same loans or did not get that same forgiveness.

And the sense that corporations get away with all that stuff can really lead to, again, this outrage that is what seems to be the commonality between these verdicts. I mean, you look at that Ford case, and what the plaintiff's counsel did really, really effectively in that case was persuade jurors that Ford had ignored an issue for a very long time and essentially had gotten away with it. That messaging is really powerful for liberal jurors to hear because they're already sensing that. They're already sensing that corporations have been getting away with things, and in order to get to what they feel is a just outcome in order to again perform justice, you have to hit those corporations where it hurts, which liberal jurors, again are thinking, I got to hit them in their wallet. That's the only way to get a message sent.

Adam Bloomberg: 

I know we're talking about jury selection, but in the venues where the judge allows social media searches, what are the sorts of things that can help to identify those types of jurors we're looking for or the ones that we don't want on our jury?

Clint Townson: 

Yeah, I mean, I think it's really important in social media to drill down well beyond the surface level stuff, just straight appearance or here's who they seem to like on Facebook or here's who they follow on Twitter; oftentimes you can go a lot deeper than that. And particularly when somebody's really active on social media, they will give you an insight into really their self-image. Because when you think about it, social media really is, this is the self-image I want to portray. It's an idealized version for sure, but this is the image that I want to portray, and that gives you some insight in how they're going to argue in deliberations. It's how they're going to see certain arguments that are coming from the attorneys, how they're going to perceive the parties and the witnesses. You get some insights into some biases that jurors might have that they're not necessarily going to volunteer when you're asking about them in voir dire or in a juror questionnaire. 

So as an example, I was working on a federal case in North Carolina, another wrongful incarceration case that I was alluding to. And one of the social media searches that we did revealed the juror had signed numerous petitions related to keeping certain prisoners incarcerated in California. And in questioning, he denied that it was him. He said, "No, I don't have any attitudes like that." And then when we showed both him and the judge what we had found on social media and showed him this is the picture, and this is you, correct? He basically said, "I don't remember posting that, but that is me." And that was really important for us because it got us somebody off for cause that otherwise we probably would've had to strike. And as every season trial attorney knows, every strike you get for cause is way better than anything that you that have to use on a peremptory.

So social media can be incredibly valuable from that standpoint, particularly if you've got people that are doing it that are really careful about what they're looking for, and know specific things to flag for the team in the room that then sometimes you can get cause challenges out of it, but if nothing else, you've got a really good sense of who that person is, how they're going to argue things, if they're writing a certain way in their posts. And oftentimes you can pick up on things like the outrage that I just alluded to. I think everybody has somebody they're acquainted with on Facebook that posts some outrageous things from time to time. Those people stick out. And to have that information going into a jury selection, it's incredibly valuable. 

Adam Bloomberg: 

So earlier, you mentioned, I think it was a $7 billion verdict in Texas and it got cut down to one. I think about these numbers, and the sheer size of them are just incredible. It seemed like it was just yesterday when a hundred-million-dollar verdict was amazing. Now, all of a sudden, we've jumped to a billion dollars. Can you explain how that leap occurred?

Clint Townson: 

Yeah, I mean it's a really good question, because as you said, millions of dollars, it doesn't seem to really make a huge impact anymore. Now suddenly we're moving into billions. As the pop culture reference goes. A million dollars isn't cool anymore. You know what is cool? A billion dollars. That's really the headline though. Is that it's not even just one of these cases. Several of these cases have approached a billion dollars and tip the scales there. So something is clearly going on with the jurors. It cannot just be that plaintiff's attorneys are asking for more money. I mean, again, in these instances, this is not plaintiff's attorneys coming in there and arguing, my client deserves $2 billion. I mean, I've worked with plaintiff's attorneys who have specifically said, I've got a good case for a billion dollars here, but I feel weird arguing about it because I think I'm going to get laughed out of the room. 

So that's an instance where it's not just something the attorneys are doing, it's got to be something going on with the jurors. So I think there's a number of different explanations that are plausible here. For one thing, historically you see upticks in these kinds of damage awards after historical, highly publicized instances of wrongdoing. The most recent examples of this were post Enron and post housing crisis. You saw this uptick of high damage awards, nuclear verdicts, particularly in cases that are in venues that were hardest hit; you saw a lot in Texas post-Enron. And it's fair to expect that the pandemic, which again was characterized by individuals struggling mightily and this perception that companies did great and were profited and did really well. When you've got that dynamic, jurors have this sense of, “I want you to feel this pain that I did during the pandemic.” And you might see an uptick because of that. 

There's another argument to be made that inflation has something to do with it. I mean, you look at jurors that know what they're paying at the pump, they know what they're paying at the grocery store, and they're starting to feel the squeeze in their individual lives. They feel as though corporations should feel that squeeze too, that again, if the idea is we want to send a message, or we want to have a verdict that's really going to affect this company, and you'll notice it's less about, “I want to have a verdict that is helping this family or is taking care of this family.” It's, “I want to make sure these people feel it on the defense side.” That's a really important piece of it. So inflation probably has something to do with it. The fact that jurors are paying more, they feel like corporations should pay more too. 

Again, I don't know that that alone gets you to the billion dollars, but it probably has something to do with it. The last piece of it that I think is probably playing a part is you have arguably the highest awareness of these very public figures who are billionaires in our culture. You've got folks like the Jeff Bezos of the world and the Elon Musks of the world. In the past, it used to be Warren Buffet who notoriously keeps a very low profile. Now you've got these guys that are true celebrities that are doing things like sending rockets in space, that are being very public about their wealth in that sense. Now it seems like a bit of a stretch to connect that to verdict outcomes. But at the same time, think about how individual jurors look at that kind of thing. They're basically perceiving that tens of millions of dollars is a drop into the bucket to most corporations.

I mean, I literally had this one case that I was working on with a gas company—energy company—that while we were sitting there and the jurors were deliberating damages, at one point they had reached, I think it was a 50, 60-million-dollar amount. And the guy said something to the effect of, “Guys, they've made that while we've been sitting here. That's nothing to this corporation.” I mean, again, scary thought for corporations to think about, but really having these very publicized billionaires might create this idea in jurors that a million dollars isn't much to these bigger corporations. And most corporations generally, maybe they're not billion-dollar company, but this still doesn't matter that much to them. If you really want to hit them where it hurts, you got to go a lot higher. So I think it's probably, again, I don't know that it's any one of those things, but I think each of those three things certainly has something to do with it, and there are probably other factors as well.

Adam Bloomberg:

Yeah. So to your point about transportation cases in Texas, I've seen this play out with change of venue, where if a case, let's say it happened in Waco, Texas, and an attorney, depending on the side, wants to move it to Dallas County. Well, if you get into Dallas County now, that attorney could easily make it the argument that the Dallas Cowboys are worth $6 billion. So they have some figure to anchor to where if they'd keep it in Waco, they probably might not be able to make that analogy. So very interesting. 

So obviously, this is very concerning to defense attorneys in these sorts of cases. What are some of the things they should be doing to adjust to this new environment?

Clint Townson: 

Yeah, I agree. It is scary for them to be looking at, and certainly, they feel some unpredictability out there with these kinds of cases. I think there's a number of things they can do to try and get ahead of these issues and try to address them if they make it to trial with a giving case. For one thing, self-awareness is more important than ever. It's really, really important for an attorney in evaluating their own case to identify the weaknesses, understand their own vulnerabilities and what the plaintiff is likely to be able to exploit. Oftentimes that is the value out of working with a jury consultant in a mock trial research exercise, or strategy consultant in a Mental Mining®, or some combination of all of those things. Because again, you're getting that fresh perspective. You're getting somebody who's willing to look at your case with a critical eye and poke holes in your theory and say, this is what we need to show up, because that's a vulnerability that we have as it sits.

Another piece of it that can be really important is witness prep. You have to think about the fact that if every witness, on behalf of a company, is coming off poorly, it's just a feedback loop with jurors’ preexisting beliefs. If they come in thinking, I know corporations are shady, I know they're dodgy. I know that they don't take ownership for what they do, and then they see this parade of even three or four witnesses can do this. If they see witnesses that are being non-responsive or a little bit defensive or just not answering questions and seem deceptive in some capacity. That just feeds into jurors’ beliefs. That's just them being able to say, “Yeah, I knew it. I knew that these guys were going to be like this”, and anti-corporation bias is just fulfilled in this sense. So again, witness prep is always important, not only before trial, but even prior to deposition, it can be really important.

And then the third thing, which a lot of attorneys already do very well, but it's worth reconsidering, is how are you telling the company's story? It cannot be the generic company story, company history that's filled with platitudes. I often liken it to, are you going to tell jurors basically what they would hear on a factory tour of the company facility? If that's it, jurors can see right through that, and they understand that that's just trying to indoctrinate them, and they're going to be skeptical of that. What you really want to spend some time doing is developing a company story that jurors can really sink their teeth into and see as you make the case—see in the witnesses, see in the arguments that you make, see in the visuals. It's got to be a company story that they feel is really relevant to the case and not just trying to brown nose or win them over.

Adam Bloomberg:

So, looking five or ten years in the future, do you foresee nuclear verdicts is just the new norm, or do you think they'll continue to fluctuate based on the sociopolitical landscape?

Clint Townson:

Yeah, I mean, I think like anything else, they'll probably fluctuate for a bit. As you have changes in the economy, as you have changes in things like the housing market, as you have changes if we're facing a recession, those kinds of things, those all impact jurors too. Again, you got to think about what a juror is going through in their day-to-day life, and as that changes, so too do their biases and their attitudes coming into the courtroom change. So certainly, a lot of this is going to fluctuate. I don't want to say that you're going to see these billion-dollar verdicts every week for the next 15 years of your litigating career, for instance. But with that said, I think what we have seen, particularly in the last few months, I would say five years ago, there was a belief among most attorneys that, again, billion dollars gets you laughed out of the room.

No jury's going to be willing to go. There was a lot of what their attitudes were, that no jury is ever going to go for this amount of money. It just seemed abstract, and it was never going to reach that point. I think what we've seen is that jurors are willing to go there. They have crossed a threshold in some capacity that you have more and more jurors who think that is the only amount that is going to accomplish what we really want to accomplish as a jury here. That is the amount that this company is going to feel that they can't just write it off and ignore it and say, "Not a big deal. Glad to have this in our rear view."

I don't know that that changes. I don't know that that disappears. Because again, it's one of those deals that once you've crossed that threshold and you've got jurors thinking that, it's just going to be there. I don't know that the prevalence will go up. I can't say that for sure. Again, that depends on a whole host of economic circumstances and political circumstances and the like. But this ideology that, well, jurors will never go to that amount, whatever that amount is, I think that's got to get tossed out of the window now because, again, there's just evidence that they are willing to go there. You just have to convince them, and the right circumstances have to be present for them to feel that outrage and feel as though that's a warranted damage amount.

Adam Bloomberg:

Well, Clint, thank you so much for your time today. Always a pleasure to speak with you.

Clint Townson:

Yeah, it was very, very fun conversation, and I appreciate you having me.

Adam Bloomberg:

Thank you. 

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.