Plaintiffs’ California dreamin’ became a reality when a Los Angeles jury went nuclear with a verdict of $464.6 million after an eight-week trial in June. The verdict included $24.6 million in compensatory damages and a staggering $440 million in punitive damages. The two plaintiffs were men who alleged they were forced out of their jobs at Southern California Edison (“Edison”) after complaining about repeated sexual and racial harassment at a South Bay office.
Lawyers for the plaintiffs painted a vivid picture of management creating and permitting intolerable work conditions at Edison South Bay to force out a worker after they reported widespread sexual harassment and racist language. During the trial, plaintiffs’ lawyers presented evidence showing Edison’s South Bay office had a fraternity-like culture in which racial and sexual harassment were widespread, common and often swept under the rug.
Fits a Pattern
After deconstructing trial summaries and closing arguments, we put together a road map to show how the plaintiffs were able to present a case that persuaded a jury to reach this outsized verdict. Our analysis considered evidence, witness testimony and closing arguments at trial.
While attorneys used to shy away from addressing money in a jury trial, plaintiffs’ lawyers have discovered the best way to get a big verdict is to ask for it. They also understand the primary motivator of a runaway jury verdict is juror anger. The best among them will leverage this emotion by employing “Reptile Theory” tactics to incite anger in jurors—tapping into the primitive part of jurors’ brains and evoking a fight-or-flight mentality. In effect, the Reptile Theory is designed to shift the jury’s focus from the law—or standard of care—to absolute safety at all costs in the pursuit of total absence of danger.
Meanwhile, the defense industry has done next to nothing to counteract the evolving approaches of plaintiffs’ lawyers. Instead, defense lawyers continue to use the same strategies for fighting liability at all costs. They avoid the worst facts of their case and hope the jury does not reach the issue of damages. These are big mistakes, and the result is more and more nuclear verdicts.
Below we discuss some of the more salient, strategic aspects of the plaintiffs’ case against Edison and examine what went wrong for the defense.
Have a Theme
An articulate, compelling theme is one of the primary tenets in any case. The theme must be developed, honed and used as a road map, beginning with discovery and throughout trial. The defense theme must make its appearance through an adversary’s deposition and make its courtroom debut in voir dire. It must be integrated into opening statements and in direct examination. It should also be integrated into closing arguments.
It is clear from closing arguments in Edison that the plaintiffs set forth a compelling theme that resonated with the jurors and fit coherently and cohesively into its “fraternity culture” story. A successful plaintiff’s attorney will develop a narrow, fact-based, case-specific theme. In this lawsuit, plaintiffs took their theme and wove it into an argument that harnessed the #MeToo cultural zeitgeist which exploded into mainstream consciousness in 2017. They generally make a larger appeal to the jurors to be the “guardians of the galaxy” to return the “safety of the community.”
How did plaintiffs’ counsel accomplish this? First, by priming jurors. “You know, back in the day, the battle for civil rights was fought in the streets. Fortunately, today it is fought in courtrooms like this,” they said. Yes, folks, that is how the reptile slithered its way into this employment case.
Next, the plaintiffs’ lawyers parlayed the narrow “fraternity culture” theme and analogized it to “The Harvey Weinsteins” of 2017, in reference to the depraved ex-Hollywood mogul, convicted of deplorable harassment and assault against women in the entertainment industry. The theme was broadened to discuss “courage against wrongdoing,” “speaking out,” and not “being silenced.” Upon the heels of this culturally relevant theme, plaintiffs’ lawyers told the jurors their voice would dictate “what we as a society are okay with from employers” and “what corporate conduct is all right and what’s not.” They then impelled the jurors to decide for the plaintiffs before launching into a plea for damages.
It is clear one of the most complicated areas involving juror decision-making is damages arguments. It is difficult for plaintiffs to convert amorphous, unquantifiable damages such as punitive awards to dollar amounts. Accordingly, it is imperative for both sides to argue compensatory and punitive damages in a common sense and relatable way.
In Edison, plaintiffs’ counsel set forth a very understandable damages argument for both compensatory and punitive damages. They demonstrated simple compensatory calculations regarding both past and future economic damages. They also used the familiar rhetoric of “broken bones heal, but broken minds, broken hearts, broken souls, they don’t heal well.” This is an effective and memorable way to prime jurors to consider plaintiffs’ counsel’s dollar value when deliberating on the more nebulous aspects of the case.
The defense, in contrast, did not argue non-economic damages – a critical mistake. Typically, the largest component of any nuclear verdict is non-economic damages, more colloquially referred to as “pain and suffering.” The defense should always argue the real impact of the accident or incident in question on the plaintiff’s life, and the impact of money on the plaintiff’s life. This opens the door for the jury to comfortably award a reasonable and rational amount for pain and suffering.
Give a Number
Defense lawyers are always reluctant to provide the jury with a damages number, especially when fighting liability. But giving a defense number is proven to be a successful strategy amid the changing legal landscape. In fact, there is a law review study that found a jury is more likely to give a defense verdict when the defense gives a number. Plaintiffs’ lawyers will certainly be speaking about damages from voir direto closing arguments, so defense counsel must do the same. Plaintiffs’ lawyers will prime the jury with their number, setting the value of the case in the jurors’ minds. The defense must redefine the value of the case for the jury by basing its number on facts and common sense.
The defense gave no number in the Edison case. This decision is consistent with the pattern we see in all nuclear verdicts. A large ask of the jury by the plaintiff, and no number from the defense. While the jury found the defendant liable in this instance, research supports that having provided them with a defense figure would have significantly reduced the ultimate jury award.
One of the many areas of psychology in which the plaintiff’s bar excels is leveraging the cognitive bias of anchoring and adjusting. Anchoring is a heuristic (mental shortcut) where an individual depends too heavily on an initial piece of information offered to make subsequent judgments during decision making. Once the value of the anchor is set, all future negotiations, arguments, and estimates are filtered through the anchor. Information which aligns with the anchor tends to be assimilated toward it, while information which is dissonant tends to be displaced.
The plaintiff has the advantage of setting the first anchor, so it is critical to know how to strategically maneuver, and counter plaintiff’s anchor. The plaintiff has another common-sense advantage in that they are comfortable talking about money. Why? Because it is asking for it and has the burden of proof. Think about it. Humans are comfortable with asking for what they want. If they want a raise, they will be laser point focused on asking for it. If they are hungry and want something to eat, they will ask for it.
The defense, on the other hand, is nervous about talking about numbers and money. Why? Common sense again, because they don’t want to give it away. They are afraid if they mention money, it will give credence to the plaintiff’s demands. However, both social science and anecdotally in mock trials, we see that jurors have a difficult time putting a value on hard-to-quantify damages such as non-economic, or punitive damages. Accordingly, it is important for the defense to give jurors a reasonable roadmap to help their decision-making process. When a reasonable damages number is offered by the defense in conjunction with taking responsibility, the defense will receive a credibility enhancement, lending credence to their number. When should the number be given? In voir dire, opening, through experts in direct and cross-examining, and of course, in closing.
This recommendation may be an anathema to many corporate defense lawyers, but it is imperative the defense accept responsibility for something. This does not mean admitting full, or even any, liability. The defense must accept responsibility for things that should be within their control: their employee training practices, following traffic laws, or putting a safe product into the stream of commerce, for example. While the type of responsibility will vary depending on the facts in the case, some semblance of accepting responsibility must be implemented in every trial.
When done properly, accepting responsibility makes the defense look like the most reasonable party in the room. It defuses the type of jury anger that results in nuclear verdicts.
In the Edison case, the defendant accepted no responsibility and, in fact, attacked both plaintiffs.
Personalize the Corporate Defendant
Corporations are facing greater scrutiny now more than ever before. Jurors’ views of corporations are increasingly more negative, with increased public anxiety caused by the pandemic, the economy, downsizing, and company closures. Getting a jury to like a corporate defendant is an uphill battle before the defense even enters the courtroom. And yet, too often defense attorneys allow plaintiffs’ lawyers to paint a horrible picture of a corporate defendant without presenting an alternative view.
Defense lawyers must humanize a corporate client for the jury and create a personal connection. To do this, they must tell the jury the company’s story, including meaningful details about the people who make up the corporation. The defense can highlight the good the company does for its employees, customers, and the community to showcase the company’s values. There must be a corporate representative in the courtroom throughout the entire trial to be the face of the company. Used throughout trial, this approach helps defuse juror anger and raises the likelihood of a defense verdict.
The trial record Includes no evidence about the personalization of Edison in this case. They did not address what the company does or why they exist. The defense made no mention of anything Edison contributes to the community or positive impact it makes.
Although the Reptile Theory is common in the personal injury arena, it is becoming more common in employment cases and other areas of litigation. The theory is premised on driving anger in jurors to trigger a self-protective, anthropological mechanism which will make them feel compelled to defend their community and deter the conduct of perceived bad actors.
In the Edison matter, plaintiffs’ counsel was able to spur the jurors to action by explaining that it was up to them to protect their places of employment. Deception is positively correlated with anger, and plaintiffs were able to show excessive levels of deception on the part of Edison. Plaintiffs also demonstrated that the deception and bad actors were not isolated incidents. With an HR representative testifying to a cultural problem at the office, plaintiffs’ counsel showed these were ongoing, cultural, systemic issues at Edison.
All of these allegations against the corporate defendant were presented to arouse anger in the jury. By focusing on the defendant’s conduct and fueling jurors’ fear, plaintiff’s counsel ultimately incited anger over something the defendant allowed and failed to stop. Anger motivated the jury to punish the defendant through its verdict. This is not surprising. An angry jury is driven to not only find liability, but also to award the plaintiff an often-exorbitant sum in damages.
By accepting responsibility, giving a number, personalizing the corporate defendant, and arguing damages, the defense could have defused juror anger before the Reptile was unleashed. Each of these methods serves to promote reasonableness, rationality, and common sense – themes that bring the jury back to the facts of the case and stamp out the Reptile Theory.
It’s Time to Make a Change
Nuclear verdicts such as the one in the Edison case are real, and they are increasing. This trend is a major problem for corporate America, and for the attorneys who defend claims brought against businesses large and small. The good news is they can be minimized if defense counsel learns how to spot the plaintiffs’ bar’s ever-evolving tactics and employ the methods proven to successfully combat them: accepting responsibility, giving a number, personalizing the corporate defendant, and arguing damages.
Sometimes the old adage applies: if you can’t beat ’em, join ’em. The strategies outlined here will deliver justice for both the plaintiff and the defendant.