Nuclear Verdicts’ Rise Means Defendants Should Set a Roadmap

Headline writers gush whenever a plaintiff achieves a “nuclear verdict,” a figure generally understood to be valued at $10 million or greater. But personal injury and product liability verdicts have gained notoriety in recent years by rocketing into the billions. This trend has sharpened and focused defendants’ need to thoughtfully navigate the risks of nuclear verdicts.

The sad and unjust reality for defendants is that the news isn’t nearly so widely dispersed when a nuclear verdict is slashed or reversed. Splashy headlines only going one way acclimate future jurors nationwide to be comfortable with super-high damages awards.

Whether a case presents a threat of a nuclear verdict isn’t always predictable, but there are clear warning signs to watch for: a particularly difficult fact scenario, venue in a “hellhole” jurisdiction or assignment to a particular trial judge, and the identity of plaintiff’s trial counsel.

Careful teams will have a strategic system to identify, rank, and monitor the risk factors in each case on their litigation docket. However, recognizing the peril is only the first step in managing the risk. In cases with a recognized risk of nuclear verdict, the recommendation is to prepare for trial, settlement, and appeal early and simultaneously.

Going to Trial

Sometimes trial is the only way out, especially if the settlement demand is out of reach or nonexistent. If the team concludes the case will probably need to start a trial in order to settle, make sure everyone is actually preparing to try the case to verdict and beyond.

Thoughtful and strategic trial preparation should begin as soon as the case is recognized as high risk and continue until the risk is mitigated. It’s never too soon to start.

It may be prudent to consider a jury consultant, mock jury exercise, and careful preparation of defense witnesses.

A jury consultant plays a critical role in preparing for trial, particularly in high-stakes cases in which nuclear verdicts are a concern. These professionals specialize in understanding how jurors think, make decisions, and respond to evidence or arguments. They can help attorneys identify and mitigate bias, tailor messaging, and predict potential jurors’ reactions.

Similarly, a mock trial or jury exercise provides valuable insights into how a jury will interpret the case facts, the effectiveness of the arguments, and the overall emotional tone of the trial, which allows for strategy refinement in a simulated environment.

Preparing to Settle

It’s important to communicate with constituencies early. Constituencies may include internal legal management, internal business executives, and insurance claims management at various levels of coverage. Early notice of the flagging of a case and early healthy reporting will make it easier to get settlement authority and help avoid delays in seeking authority if a time-sensitive settlement opportunity arises.

Recognize that power dynamics are fluid in the course of a lawsuit and take every settlement opportunity seriously. Any given party’s leverage will wax and wane during litigation. There can be moments of uncertainty—sometimes fleeting—when settlement opportunities arise, or natural points when one party has some additional leverage. If settlement preparation starts early, one side can be well-positioned to seize an opportunity to resolve with short notice.

Consider separating assignments for trial and settlement. Trial counsel is sometimes—but not always—the best choice for conciliation, in terms of personality and ability to do both jobs well.

Planning for Appeals

Don’t be penny-wise and pound-foolish. If a case presents a true risk of a nuclear verdict, engage and involve appellate counsel well in advance of trial. They will have valuable contributions to make to dispositive motions, motions in limine, and trial strategies.

Appellate counsel’s perspective is important to identify potential errors or issues that could form the basis of an appeal if a verdict is unfavorable. Their expertise can guide the development of legal arguments that preserve the record for appeal, ensuring that any legal missteps or prejudicial rulings are documented early.

Appellate counsel can also advise on the strategic use of motions in limine to exclude inadmissible evidence that could inflame the jury, as well as craft dispositive motions that could potentially resolve the case before it even reaches the jury.

By planning for the possibility of an appeal from the outset, trial teams can better safeguard against a nuclear verdict and position the case for a successful appeal if necessary, increasing the chances of reducing the ultimate liability.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Alice Sacks Johnston is a shareholder at Segal McCambridge.

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