The McDonald’s hot coffee case in 1994 is the most famous runaway jury verdict in United States history. A woman ordered hot coffee and was awarded $2.9 million when McDonald’s gave her exactly what she ordered: hot coffee. That verdict spawned a national discussion about our judicial system, and it became a lightning rod for tort reform. Lawyers, politicians and businesses repeatedly pointed to the McDonald’s case as an example of all that is wrong with our judicial system and the need for changes.
So, what has happened in the years since? Two months ago, a jury in Los Angeles found Starbucks liable for serving hot tea. The verdict? Not the $3 million that caused an uproar in 1994, but $50 million. A delivery driver dropped the cup of scalding tea on his lap after a barista handed a tray of three drinks to him through the drive-thru window. The spill causing serious burns to his leg and private area.
The jury found Starbucks negligent for not properly securing the drinks before handing them to the plaintiff. The entire jury award of $50 million was for pain and suffering, called “noneconomic damages.” The plaintiff did not seek lost wages or money for medical expenses.
The Starbucks verdict was what we now call a “nuclear verdict.” A nuclear verdict is a jury award of $10 million or more in which the noneconomic damages award is disproportionate to the actual economic damages. The implication is that the verdict is simply unfair.
Nuclear verdicts have been increasing in both frequency and severity — not just in certain big cities known for delivering plaintiff-friendly outcomes, but also all across the country. In fact, in 2018, the first ever single-plaintiff $1 billion verdict was delivered in Georgia.
The question is: Why? Why are American jurors more willing than ever to award astronomical verdicts? Are people getting injured more often or more severely? Has the pain people now experience gotten worse? Have the tort laws in our country changed so that people are now entitled to more money?
No. What has changed is the way plaintiffs’ lawyers are trying lawsuits. Jurors — your neighbors — are being manipulated into awarding outsize verdicts by extremely skilled and opportunistic plaintiffs’ lawyers.
Over the last 15 years, plaintiffs’ lawyers have radically changed the way they try lawsuits in two ways. First, they are no longer focused on eliciting sympathy from jurors for their client. Rather, their new goal is to get jurors angry: angry at the defendant, who is often a corporation. Anger is a powerful and motivating emotion. An angry jury is more likely to award excessive damages to send a message to corporate America.
This legal strategy is no accident. It is intended to circumvent the original purpose of compensatory damages, which is not to deliver punishment but to make an injured plaintiff whole.
The second radical shift in the legal strategy for plaintiffs is to ask jurors to award very large verdicts. Plaintiffs’ lawyers never used to ask for big numbers because they thought it would be off-putting or make them look greedy. But they studied the science and realized they could exploit common cognitive biases such as priming, recency and desensitization. They begin their psychological tactics with jury selection, asking jurors if they would be willing to award a $100 million verdict or more. And then their target number is repeated to the jurors many times over the course of the trial, anchoring the jurors with numbers they may not have dreamed imaginable when they showed up for jury duty.
Plaintiffs’ lawyers understand the only way to get paid massive numbers is to ask for them.
Why is this bad for America? Our legal system was not intended to create generational wealth. It was intended to right wrongs, make injured people whole and deliver justice for all. Nuclear verdicts cost Americans their jobs and their businesses, and they raise the prices of goods and insurance for all of us. All of us pay for these unjust verdicts.
But the dirty little secret of the plaintiff’s bar is that the injured plaintiffs are not receiving most of these shock verdicts. Instead, their lawyers take 40% to 50% of these verdicts as a contingency fee. Then, their expert witnesses, who are used over and over again, are paid handsomely for the outcome, and other litigation expenses are deducted.
Even so, you would think that leaves at least 30% of these verdicts for the injured plaintiffs, right? Wrong.
In many cases, there is a litigation funding company bankrolling the litigation. These companies give both plaintiffs and their lawyers loans on their lawsuit and then expect to be paid many times over on their money. Despite all the big headlines about multimillion-dollar verdicts, little of it may make it to the plaintiff. The jurors who think they are making a plaintiff’s life measurably better have no idea they have just funded the wealthy lifestyles of lawyers, doctors and funding corporations.
So how do we stop these unfair verdicts and take back justice for all? Many complain about a lack of tort reform, unrestricted attorney advertising or litigation funding, all of which contribute significantly to the scam. But change also needs to happen in the courtroom, where nuclear verdicts are delivered. Defense lawyers and their clients must change their strategy.
Research and data show there is a clear pattern to nuclear verdicts. The defense needs to directly address the concept of juror anger and defuse it by exposing the manipulative tactics used by plaintiffs’ lawyers. Americans deserve it, and justice demands it.
The good news is this is all within the control of the very capable defense industry and can be done today. With $50 million jury verdicts no longer the exception, the time for radical change is now. It is time to take back justice for all.
Robert Tyson is a national trial attorney, the founding partner at Tyson & Mendes LLP and the author of “Nuclear Verdicts: Defending Justice for All.”
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