核評決に備えた陪審調査ツールの役割
UK P&I クラブは、米国で「核判決」(陪審員の下す判決が1,000万ドルを超える事案)が急増していることを認識しています。ホットなトピックとしてトーマスミラー社の人身傷害セミナーで参加者が議論する際の指標となりました。Magna Legal Services社のMark Calzaretta 氏は、核評決を回避するために利用可能な陪審調査ツールの価値と目的について、プレゼンテーションを行いました。その内容を以下に要約いたします。
The UK Club is no stranger to the sudden increase in ‘nuclear verdicts’ around the United States. This hot topic was the benchmark behind our Team’s discussions during the Thomas Miller Bodily Injury Seminar.
Mark Calzaretta of Magna Legal Services gave an eye-opening and informative presentation on the value and purpose of the jury research tools available to protect against nuclear verdicts. A recap of what was discussed is provided herein.
A War Zone in the Courts
The pandemic without a doubt altered the way juries think about case values and, in turn, has led to increasingly inflated verdicts. In a survey performed by Magna Legal Services, it was noted that 76% of jurors now believe that corporations lie. Adding to this, 71% of jurors do not support imposing a legal cap on jury awards. Even more frightening, 30% of individuals polled think it would take ‘billions’ of dollars to send a message to corporations, and 45% would ignore a judge’s instructions.
All of this can be attributed in part to the deteriorating economy and general dissatisfaction with the way things are going in the United States. Indeed, to put a final number on it, 77% of individuals polled believe that the pandemic has been used as an excuse by corporations to raise and inflate prices. As a result, juries now look at themselves as ‘guardians of the community’, meaning that they feel an obligation to punish corporations with large verdicts as a means to change these companies’ perceived ‘bad behaviour’.
Defence Weapons
There is a clear imbalance of justice when a company goes before a jury in a claim brought by an individual. However, there are several tools an entity can utilise to give itself a better fight and protect against ‘nuclear verdicts’. These include, but are not limited to:
- Online focus groups
- Traditional mock trials
- Surveys
- Witness preparation
- Social media sweeps
- Graphics consulting
- Multimedia trial preparation
Of course, whether or not to use one or more of the above tools depends on each case. Generally, the higher the stakes, the more resources a company will want to invest in such tools.
For example, short of partaking in a full-blown mock trial, a defendant may want to take advantage of online surveys. As part of this option, companies such as Magna offer an online survey system which focuses on damages. A case summary script is drafted for approval. Then, about 100 jurors respond to the description of the case over a period of three weeks. The data is collected and a baseline determination of exposure/risks is conveyed to the defendant, including damage analysis and key takeaways from the case.
These tools are important in assisting the attorneys in who to select for the jury panel prior to the day of trial. Indeed, by the time an attorney reaches voir dire, they should have a proper understanding of the ideal candidate to decide the case.
With the increase in digital technology brought about by the pandemic, online mock trials are also an option now. These are a bit more cost-effective than an in-person mock trial. They typically involve 1 to 10 panels of mock jurors recruited from the relevant venue for each case. Each mock trial is a half-day exercise and allows attorneys to present their case via webcam using evidence slides and video excerpts. At the end, the jurors engage in real-time deliberation discussions and provide case verdicts.
The technology developed in this field has become so advanced that every aspect of a mock trial is analysed and assessed. A defendant can receive notes on the highest and lowest points of their trial, and is provided with tips on how to amend their pit falls. This feedback can be essential to preparing a trial before jury.
Better Playing Field, Still A Battle
Ultimately, while the tools offered by a company such as Magna may help to level the playing field, it remains an uphill battle for defendants going before a jury in trial. No matter the research tools available, the overall anti-corporate sentiment of jurors will remain the same for the foreseeable future. However, knowing when to settle and when to battle will help to reduce the uptick in nuclear verdicts.
Mark Calzaretta is Partner and Executive Vice President of Litigation Counseling for Magna Legal Services. Mark oversees the operations for the company’s Litigation, Graphic and Trial Consulting Team. He has been the lead jury consultant for several hundred cases spanning more than twenty jurisdictions.
