Overcoming Safetyism & the Plaintiff Media Machine

Our podcast guests, Jill Leibold, PhD, IMS Senior Jury Consulting Advisor and Dave Poston, Esq., CEO, General Counsel, and Co-Managing Partner at Poston Communications explain how safetyism, social inflation, and the plaintiff media machine are impacting juror perspectives and driving damage awards. They also offer strategies for corporate defendants to navigate and overcome these trends.

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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 Senior Jury Consulting Advisor Dr. Jill Leibold, who specializes in juror decision-making and has nearly 20 years of trial consulting experience across all genres of litigation. Joining her is Poston Communications CEO, General Counsel, and Co-Managing Partner Dave Poston, who leads the firm’s Crisis Communication and Litigation PR division. 

Our guests will explain how safetyism, social inflation, and the plaintiff media machine are impacting juror perspectives and driving damage awards. They’ll also offer strategies for corporate defendants to overcome these trends. (If you are listening only and would like to watch the video version, please visit our YouTube channel.)

Adam Bloomberg:

Jill and Dave, thank you for being here. Jill, when you joined us last time you were talking about the concept of safetyism and how it's affecting jurors beliefs and decision making, and ultimately leading to some massive damage awards. Can you give us a little bit of a recap of what you've seen in your research?

Jill Leibold:

Yes, absolutely. So what we have been seeing is, recently, some pretty large, what people might call, nuclear verdicts. They're eye popping. And so we really wanted to go back and start to understand a little bit more about why. What is it that's driving these things? And so we were researching and looking into this theory of safetyism that was first coined by Greg Lukianoff and Jonathan Haidt in their book, The Coddling of the American Mind. And what they laid out was a new way of looking at how people, currently, are making decisions. What kinds of thought fallacies are going into those decisions? And so what they proposed was that safetyists have complete risk avoidance and that could be discomfort, verbal discomfort, or it could be physical discomfort, and also that feelings are facts. And so they're always putting feelings and emotions first. And that means that emotions are driving those decisions and those verdicts.

And finally, the third prong of their theory is that we're now in a world of good and evil, right? That there is a great divide, and if you're not on my side, then you're on the bad side. And so what we're doing right now is really looking at the first two prongs of that, because emotional thinking really drives a lot of those large verdicts as well as the complete risk aversion. And so those things really lead into looking at what we think of now as social inflation, because the cost of those verdicts are rising far faster than the actual economics in the world. And so why, what is happening? What's going on?

And what's so important about safetyism is that it is really distinguishable from the reptile theory. And I know we've been talking about reptile for years, but this is so much bigger, because it's an entire way of having been raised, from as kids, with, you know, 24/7 new cycle of kidnappings or Three Mile Island. You know, nuclear issues, things like that. And so this news cycle really heightened people's awareness of risk and their desire to stay away from risk. And so when we think about reptile, it's a momentary feeling. So, you know, plaintiffs will try to trigger fear in that moment in a juror. And so it certainly is an emotion, but this is an entire way of thinking. And that's what makes it so much more dangerous. And so what we wanted to do was come here with, not just what the problem is, but with another solution.

And so, as part of that social inflation, what is really important to know is that plaintiff and the plaintiffs’ bar are getting third party funding, and this makes them so much more powerful in the media and in advertising. And it allows them to advertise for more clients, but also influences the jury pool, and that is why we're here today talking about the social inflation and its intersection with the prongs of safetyism. 

Adam Bloomberg:

I've heard you and Dave talk numerous times about the plaintiff media machine and how it's feeding into these plaintiff safety beliefs and tainting jury pools. What does it mean for today's defense teams? 

Jill Leibold:

Well, the plaintiffs’ bar are absolutely getting the information advertisements about lawsuits, and especially if it’s a big multi-plaintiff case or an MDL, they're getting them out to local papers. They're getting billboards out there, and if they get a verdict, it's everywhere. And that infiltrates all of the jurors, all of the communities, what they think is knowledge about what's happening in these lawsuits. And it really sets defendants behind. And there's an example where this began really winding up when the courts had just opened during Covid. And I had gone to a somewhat small town to do a jury selection, and we pick the jury, but it was definitely notable in a restaurant that we were new to town. And our server came over and said, “Hey, are you here for that big trial?” And that was a little surprising. And she said, “Yeah, the local newspaper pushes headlines to my phone. And this is what came in this morning was that there is going to be a big trial, and there are a whole bunch of plaintiffs that are coming to seek justice.” And that's how it was framed. So they're framing and slanting the media and the ads to the community who then make up our jury pool. And so they're walking into the courtroom with a slanted idea of what's happening already. 

Adam Bloomberg:

Dave, anything to add to that?

Dave Poston:

Well, there's a lot there. I'll definitely say it's really great. That was an excellent summary of the situation at hand, and you know, on the communication side there is also a lot of analysis that's going on around these issues. And what's interesting is in the end there, Jill was talking about an overarching theme of justice. And I think when you start to try to figure out solutions or how to, you know, address that amount of information flow that potential clients and jurors are then absorbing as truth, communications is often both a broad brush of reputation or theme, and it's also a specific brush about a specific set of facts in a specific case. 

And I think that corporate America is sort of in an interesting moment of a little bit of damned if you do and damned if you don't situation, because corporations have long been amazing, good citizens, but they're also facing challenges on multiple fronts. Some politicians do or don't want them to do certain things in terms of being a community citizen. Jurors who are consumers of goods don't necessarily want certain other behaviors to happen. And so for defense attorneys and corporations who really are trying to do good and improve society, and move the ball forward for everyone, they're having to sort of thread this needle a lot of the time since they work through their daily life, and then over time, through trials and other situations that they're facing. 

Adam Bloomberg:

Now based on your experience in legal public relations, I’m curious to hear how you recommend that corporations and defense counsel speak up? I mean, what's the best strategy for them to counteract these obstacles before they're walking into the courtroom?

Dave Poston:

Yeah. And I think that what I was sort of trying to say, and thanks for putting a little point on the question for me. It's essentially that you want to talk now about the good things your corporation is doing, about your goals, about even the challenges that you face, so that you are basically sharing and creating a communications theme and message around yourself and around your brand, so that if a mistake does get made, whether of a corporation's responsibility or a user's responsibility, or both, that there is a reasonable amount of information that exists. And then, from that baseline reputation and brand value, you then can address any situations that do arise. 

So we often say that to companies that aren't in a situation like a trial, you know, what are you sharing about your good deeds? What are you sharing with the community? How active are you being? You know, can you take steps to share your message, talk to the community, be a part of the community, so that if you face some a challenge someday you'll be ready. And that will be there for you to lean on, and how you've already laid the groundwork of explaining your message.

This also applies to an industry. You see this industry-wide as well sometimes. So, you've got to start with this. We use a model in communications, crisis or litigation PR called, prepare, respond, recover. We often say, prepare, respond, and advocate, would be the third in a trial. Communications, that's a circle, that's not a line of steps. And it's an ever-evolving circle of what can you do to prepare, which means share your story before any problem or challenge faces you. Respond to any particular situation. And then recover, which means sometimes admit and redeem, or it means, continue on this good path, and share even more, or bring other participants to the path that you've set forth. 

Adam Bloomberg: 

Jill, as our jury consultant in the room, anything to add?

Jill Leibold:

Well, I think it is really important for defense, the defense to speak up because traditionally defense teams and corporations have really remained quiet. And the plaintiffs, having ramped up the media machine, they need to see us fighting back. And so getting the messaging out ahead of the litigation is really critical. Getting the message out that we've been on the creating safety for a long time, and we're on it. And so it's not even always just a response to specific litigation, it's getting ahead of the litigation. 

Adam Bloomberg:

Dave, applying that model, can you give us some examples of how defense teams have used the media to their advantage?

Dave Poston: 

Yes. Okay. So, starting off at Jill's Point. It's most important to understand that if you have something good to say, you definitely want to say it, you know. And the typical defense strategy of being quiet, hopefully these examples will show how that can be sort of overcome to some degree. Basically, every legal filing is a public document. The legal filings are a communications channel of their own. And so, most importantly, where you might be responding to allegations, which they always are just allegations, and we really want to emphasize that point, your filings are going to be your first channel for doing so. But it's also important to understand that how you respond and the degree of aggressiveness and the degree of information sharing that you may or may not typically put into some sort of filing, also needs to be considered. 

And so defense teams that work with media relations oftentimes will do a number of points of analysis about all of those factors, including the newsworthiness or the news that they are having to respond to. And so you begin with your filings. The second thing you do is you learn how to talk to the media that maybe wrote a story, and you want to follow up with them. You oftentimes have a story to tell of your own. And so what you're doing is you're creating media lists, you're creating information about media that's occurred, or advertisings that have occurred. There are certain legal steps, such as a motion to change venue based on media coverage, that there's a lot of precedent around this, and there are very specific steps on how you prove such things in a court of law if you were going to argue that before a judge. But since you're practicing both in the court of law and in the court of public opinion, there are variations of the theme on how you approach media, how you share your side of the story with media, the points that you would give them, and then, you know, other people that could come to bear to broaden a story.

We have definitely seen people reach out, say in a particular jurisdiction, where they're getting hit with a number of cases, where they will go ahead and tell their story, and not necessarily about one case, but just in general. And we've seen law firms select different, other law firms as local council for example, because those local law firms have relationships with media.

Adam Bloomberg:

Do you have any specific examples?

Dave Poston:

Sure, I can give you two examples actually, that might be helpful to the listeners. The first one will be related to a manufacturer that was facing a number of lawsuits in a particular jurisdiction as the plaintiffs’ bar was moving from jurisdiction to jurisdiction to go after a particular industry. And so a national legal counsel was seeking local council, and the reason that they selected the firm that they did, was because that firm had a relationship with a public relations agency. And what they were really trying to do was not address any particular case, but rather this onslaught of suits at the industry in this particular area, and we wanted to show that they were willing to defend the cases, but also that there was a number of things across this sort of thematic approach to cases that they had, that were good things that they had done. And a lot of those were about safety that they had efforts that they had made, and so that story ultimately helped get their message out across a large sort of population, if you will. 

And then the second one was actually a utility. And this utility actually, you know, these days, utilities, they’re such an integral part of society and the functioning of all of our daily lives, and they are becoming the target for a lot of different types of lawsuits, a lot of them related to climate change and things like that. And when the companies aren't talking about what they're doing as a community citizen, or if they aren't talking about efforts at safety and upgrading and things like that, those messages aren't there for the community to know and receive and experience over time. And so, when those utilities will face a challenge in court, they can, if they have shared those messages and then if they have come to us when they're facing a piece of litigation, and we can specifically share some of the things that they've done, or if safety is a part of their brand and is a part of their culture, then we're able to go to the media with those types of stories and that's happened a few times. Jill, I'm not sure if you wanted to, sort of, tie this back to a converse side of safetyism. 

Jill Leibold:

Oh, absolutely. I think this ties in exactly with the two prongs that we're most concerned with, which is the feeling over thinking and the risk aversion. And so those kinds of strategies really speak to both of those things because what we're doing is giving jurors or the community, the local community who will be our jurors, facts. And so, they can bring those facts with them and counteract those jurors who are focusing on their feelings. And it also helps them understand that the companies are also trying to avert risk. It's not just on them to avoid it at all costs that the companies are on their side and are doing what they can to help too. So, I think the tactic is very helpful, and it's a slower process, but it's really important long-term thinking. 
 

Adam Bloomberg:

Jill, how do you advise defense counsel in counteracting the plaintiff media strategy, and potentially the negative views of their client in, let's say, jury selection?

Jill Leibold:

In addition to the media strategy by the defense in general, that we've been talking about, once the plaintiff media machine has already had its impact on the local community, it really needs to be addressed with the judge and with the jurors in court. And so once the media is out there, the defense counsel really needs to inform the judge about all of the ads. Plaintiff attorneys are putting all kinds of advertisements on social media, so jurors are exposed to those ads and even sometimes verdicts on Facebook and Instagram and all of the socials. And so those can have a very unconscious impact and influence on how jurors are walking into the courtroom thinking about this particular defendant. And so the more that we're able to inform the judge about the degree and depth of any kind of media, maybe there was a news documentary on the topic, or what have you, but the judge really needs to understand what that is. And come to the judge with social science, describing how that can really influence the way that a juror sees and perceives a case.  

Next, we make sure that even in federal, that jurors are asked about exposure to plaintiff advertisements and/or especially past verdicts, because we need to out that bias and then talk to the jurors individually, not about what they've seen in open court, because we'll do that on the side, because we don't want them to poison jurors who haven't heard anything, but we do want to find out if they've discussed it with anyone else. We want to find out if they've responded to any of the ads or forwarded it to their dad, which sometimes we hear that frequently. They got an email and went, “Oh, I wonder if this is, you know, been influenced by so and so.” And so they'll forward emails, things like that. And so we really need to have those conversations with the jurors to make sure that the judge can also see that they have been previously influenced, and then use that information to get the jurors off for cause. 

Adam Bloomberg: 

Dave, anything to add to that?

Dave Poston:

Sure, sure. So I definitely would agree with Jill that there are, if you think of even the jury selection timeline, the beginning of a trial timeline, oftentimes it is important to educate a judge that along the lines of first amendment and open courts, there is a lot of scientific study now being done about the impact of news on jurors. You're also seeing surveys like she said on things like what's called the CSI effect, where you have podcasts, like this one, that would have an impact, a long form podcast where they do a number of episodes. The serials. You're also seeing now, instead of just a 60-minute segment, you're seeing a multi-series television program that goes into in-depth, into one case or another. So that true crime effect is very real. And then, like she was saying, handling and figuring out this impact on the particular jurors that you're having, there's a science around it for communications and public relations as well. And it, often times, is a focus group, so the way Jill described it was great because you're kind of figuring out one by one, person by person what the impact has been, but, if need be, which I could also list in a few minutes, if you like, some of the other legal steps, the science behind doing a focus group or some other study about the impact is done frequently as well.

Adam Bloomberg: 

So what are some legal strategies?

Dave Poston:

Okay, so when you think about the impact that advertising and media might have had on any particular trial, there's a lot of judicial precedent around that subject that lawyers can know about for their defense practice and for different motions practice in their cases. A lot of these come from the US Supreme Court, so it's a very high-level judicial precedent here. It begins with things like screening out jurors, just as Jill had said, by particular questions. You, of course, at the end of the trial, would do the same through jury instructions to pay attention to only what they heard in court. And then, you have a few others. So change of venue, so you might make a motion to move the venue based on media coverage, that, again, comes with the focus group and various surveys. You could postpone a trial until media sort of dies down a little bit around any particular situation. There's obviously sequestering jurors, which is not a very popular thing, but a thing that's been done over the years. You can also do gag orders. You can do orders for the press not to speak to particular jurors. You can seal documents. Of course, in the end you could ask for a new trial depending on what's happened. And then you could also address what the plaintiffs’ bar has done in particular, through defamation claims or legal ethics complaints. So there's quite a lot in the arsenal and toolbox for a defense attorney that's seen in the precedent.

Adam Bloomberg:

Alright. Thank you. How about some final thoughts? Jill, I'll start with you.

Jill Leibold:

My message really is, safetyism has been growing and growing over the past decades. This is not a temporary thing, and it's here to stay. And so we need to think about litigation and our defense in a different way now, and really join in on short-term and long-term strategies to combat this way of thinking. 

Adam Bloomberg:

Dave, anything to add to that?

Dave Poston: 

Sure. I think one thing that I wanted to mention, and I'll go ahead and do it now is that there is a legal ethics reason why lawyers are hesitant to speak to the media, and those restrictions on legal ethics are really important as just mentioned, but we need to overcome those. Because if you do have something good to say, it's important to do so. The Supreme Court has even ruled that if the other side goes to the press you can speak in defense of your client or yourself, so that does exist. 

And bringing us back to plan, respond, recover, or prepare, respond, advocate, I want to share that corporate legal departments are more and more integrating these two functions. So legal departments, oftentimes now, oversee communications departments. Two examples of this. We know of one travel and hospitality organization that has been assigned a communications person to the legal department to review all the legal filings. And the same thing is true about a healthcare entity we just learned a few weeks ago, so that integration is so important to share that it actually is being done as a function to bring those two considerations together on a daily basis. In the prepare, respond, recover, I just want to reiterate that there are very, very specific things on the litigation PR check list. They begin with things like a risk analysis and a media audit, all the way down to diagramming relationships with media, understanding purposes for coverage, and looking at triage and filings and media pitches and all of the specific tactics that media relations professionals do from social to digital to advertising. And all of those things can be considered and turned on their head in terms of an approach for defense as well. It's just important to make a list of them and understand what they are, and then go through them and compare them to the litigation timeline. 

Adam Bloomberg:

Well thank you both for your insights on how to counteract these plaintiff media strategies before trial and in jury selection. And Jill, we look forward to your continued research on safetyism in cases across the country.

Jill Leibold:

Thank you so much.

Thank you to Jill and Dave for speaking with us today, and a special thanks to our listeners. Please join us next time and subscribe to the IMS Insights Podcast.

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 43,000 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 expertservices.com.