Nuclear Verdicts: Causes and Countermeasures

A nuclear verdict is a jury verdict that equals or exceeds $10 million. That is the most basic definition. A more expansive definition is a jury verdict that equals or exceeds $10 million, and no objective observer would believe the plaintiff’s damages are worth that much. Indeed, we expect large verdicts in cases involving multiple deaths or catastrophic and permanent injuries. Large verdicts are predictable in mass tort cases with punitive damages claims against the defendants.

But most legal professionals and their clients would not anticipate an eight-figure verdict in a case where an injured plaintiff is largely functional and outwardly living a normal life. And yet, such verdicts in those types of cases are becoming increasingly common.

Nuclear verdicts can significantly increase the cost of insurance premiums, or make it more difficult for a company to obtain insurance. These verdicts can seriously harm a company’s public image. In extreme cases, nuclear verdicts can lead to a financial strain that culminates in a bankruptcy.

This article discusses some of the root causes and countermeasures lawyers, claims professionals, and businesses can take to prevent nuclear verdicts.

CAUSE: “Reptile Theory” Arguments

One of the most well-documented causes of nuclear verdicts is the plaintiff’s lawyer’s use of “reptile theory” arguments—”improper appeals to a jury’s emotions by arguing a defendant’s conduct threatens the community’s safety.” (Russell v. Dep’t of Corr. & Rehab. (2021) 72 Cal.App.5th 916, 941, citing Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 599.) The reptile theory arouses a juror’s self-interest and inspires the juror to punish the defendant with a large verdict.

A plaintiff’s application of the reptile theory tactic starts early in the litigation, typically at the outset of initial written discovery.

For example, the plaintiff’s counsel in a truck accident case might ask the trucking company defendant to produce all documents related to the company’s “policies and procedures for the safe operation of a commercial motor vehicle.” This kind of discovery request is quite common, and there are almost countless variations of it. The request may seem innocuous: the plaintiff is simply seeking documents that could potentially bear on whether the truck driver defendant followed the company’s safety policies at the time of the accident.

But in reality, this request is calculated to obtain evidence that the plaintiff will use to make reptile theory arguments. At the deposition, the trucking company defendant’s corporate representative will be presented with the company’s (typically voluminous) safety policies. The plaintiff’s attorney will then review the safety policies and get the deponent to admit that the defendant truck driver did not follow the policies and procedures at the time of the accident. This line of questioning has nothing to do with proving that the defendant truck driver is liable for the accident. It certainly has nothing to do with proving the nature and extent of the plaintiff’s injuries. Rather, these questions are intended to elicit answers that will create a strong dislike for the defendants, and that is the point of the reptile theory.

When a plaintiff conducts discovery this way from the outset of the case all the way to the discovery cutoff, the risk to the defendants of a nuclear verdict becomes dangerously high.   

CAUSE: “Third-Party Litigation Funding”

Another recognized cause of nuclear verdicts is so-called “third-party litigation funding.” Third-party litigation funding refers to an agreement where “any person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on” the outcome of a lawsuit. (In re Nat’l Prescription Opiate Litig. (N.D. Ohio May 7, 2018) No. 1:17-MD-2804, 2018 WL 2127807, at *1.) One federal district court judge described third-party litigation funding this way: “Creative businessmen, ever alert to new opportunities for profit, perceived … a chance to make money and devised what has come to be known as third party litigation funding, where money is advanced to a plaintiff, and the funder takes an agreed upon cut of the winnings.” (Miller UK Ltd. v. Caterpillar, Inc. (N.D. Ill. 2014) 17 F.Supp.3d 711, 718.)

Third-party litigation funding contributes to the prevalence of nuclear verdicts in the following ways:

• First, plaintiffs and their lawyers will be less likely to settle before trial. If the plaintiff’s lawyers are not responsible for advancing the exorbitant costs of trial preparation and trial representation, then the defendant loses leverage to persuade the plaintiff to settle before trial.

• Second, litigation funders will use advanced algorithms and artificial intelligence programs to select and fund the cases that are most likely to yield the largest verdicts.

• Third, with the backing of wealthy investors, plaintiff’s attorneys can hire jury consultants and conduct full-blown mock trials with mock jurors. By the first day of trial, the plaintiff’s counsel will have already refined his or her best arguments for maximizing a potential verdict.

For these reasons, almost all available literature on nuclear verdicts recognizes third-party litigation funding as a major contributing factor to the increased occurrence of nuclear verdicts.

CAUSE: Personal Injury Attorney Advertising    

Another reason for the rise of nuclear verdicts is personal injury attorney advertising. In recent years, plaintiff’s attorneys have calibrated their advertisements to make it seem like outsized jury verdicts are the norm. For example, there is an attorney billboard abutting a major freeway in Los Angeles, California that boasts about a verdict exceeding $11 million for a “leg injury.” Most members of the general public have no idea just how serious a typical “leg injury” would have to be to garner a verdict that size. But a civil tort defense attorney would see that billboard and think that the leg “injury” was probably an amputation.

In Southern California, where large jury verdicts are common, it is difficult to drive for more than 15 minutes without hearing a personal injury lawyer ad on the radio. While the frequency of these ads is perhaps not a new phenomenon, some of the content of more recent ads makes it seem like a car accident automatically grants the would-be plaintiff multi-millionaire status. One radio ad explains how a car accident, because of its inherent financial benefits, can be the best thing that could ever happen to a person. In a different ad from the same lawyer, the narrator warns listeners that people must be careful not to spend their money too quickly after their accident has made them extremely wealthy.

When the general public is subjected to this kind of attorney advertising every day, it can taint the jury pool into believing that nuclear verdicts are common. When asked to serve as a juror, a person who has been bombarded with these kinds of ads for years may think nothing of awarding a plaintiff $10 million or more.

COUNTERMEASURE: Spot the Reptile Theory Early

One of the most important things a defense lawyer can do to prevent a nuclear verdict is to spot the plaintiff’s attorney’s use of the reptile theory early in this case. Every written discovery request and deposition question invoking the reptile theory should be timely objected to. Such evidence should be attached to a pre-trial motion in limine requesting the materials be ordered inadmissible and not presented to the jury. The motion should seek a court order that plaintiff’s attorney is precluded from presenting any evidence or argument that appeals to the jury’s sense of self-interest and portrays the defendant as a danger to the community.  The motion should remind the court that the “law, like boxing, prohibits hitting below the belt [and] … forbids an attorney to pander to the prejudice, passion or sympathy of the jury”. (Martinez v. State (2015) 238 Cal.App.4th 559, 566.) Counsel should make clear to the court that reptile theory arguments are improper and should be excluded. (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 599.)

COUNTERMEASURE: Prepare Defendants to Testify at Deposition

Defense counsel can and should do more. In all cases, and especially in high-exposure cases, counsel should expend significant time and effort to prepare the defendants to testify at deposition. A corporate representative should know how to respond to questions like this one: Would you agree that your company’s highest priority is safety? An individual defendant should know how to respond to a question that asks him to agree that it is unsafe not to maintain seven seconds of braking distance between his vehicle and the vehicle in front of him. Effective responses to these kinds of questions will deny the plaintiff’s lawyer a soundbite that can later be read to the jury and inflame the jury’s passions and fears.

Every good litigator needs to think about what the other side must prove or disprove at trial. And in the age of nuclear verdicts, every civil tort defense attorney needs to consider how the plaintiff’s attorney will try to use the reptile theory to argue the plaintiff’s case.

COUNTERMEASURE: Involve Legal Counsel at the Outset

Finally, companies, insurance carriers, and claims representatives can prevent nuclear verdicts by involving their legal counsel at the outset of the incident or occurrence that could later be the subject of a lawsuit. This happens every day in the transportation industry. When there is a commercial truck accident, motor carriers will conduct a “rapid response” to the accident. Within minutes of an accident, the motor carrier will have an investigator at the scene. The company’s legal counsel will usually arrive shortly thereafter. Not long after that, defense counsel’s accident reconstruction expert will inspect the truck, download any electronic crash data, and preserve any dash camera footage. Within 48 hours of a truck accident, the motor carrier and its insurance companies will have a preliminary risk assessment should a lawsuit later be filed. This enables the motor carrier and its insurance companies to potentially settle a truck accident claim before there is even a threat of a nuclear verdict.            

Although the rapid response is somewhat unique to transportation litigation, it provides an excellent model for all industries to avoid nuclear verdicts. Even if the response to an accident is not identical to a rapid response investigation, companies can still be proactive in investigating and settling claims. The point is to settle a high exposure claim as early as possible—before reptile theory arguments and before the involvement of third-party litigation funders.