In corporate litigation, a million isn’t what it used to be. Now, with the rise of social inflation and its potential harm to companies, a billion is the new million.
Social inflation is the increase in the severity of a claim above and beyond what would be expected under ordinary economic conditions, inflation, and claim trends. Negative corporate sentiment and anti-corporate bias is just one factor that affects social inflation, in addition to a desensitization to damages and money.
Nuclear verdicts, which are exceptionally high jury awards that surpass what should be a reasonable or rational amount, are on the rise in matters of product liability, premises liability, auto accident, and medical liability across industries, including the oil & gas, energy, biotech, retail, construction, and transportation industries.
Conscious or not, jurors can have bias, attitudes, and predispositions against corporations, with some jury research showing that jurors often have little to no trust in corporations and some will even ignore the judge’s instructions and be more likely to vote on emption rather than the letter of the law.
Opposing counsel will aim to take juries to the “Edge,” the new name for the popular Reptile Theory, which puts the jury into survival mode with anything that threatens our safety. Plaintiff counsel will aim to build sympathy for the plaintiff first, then anger with the defendant.
What can corporations do? Here are a few strategies to consider:
- Define and tell the corporation’s story, and proactively define proper themes and storyline to combat bias and litigation tactics.
- Humanize the company by highlighting the company’s origin, community involvement, charitable causes, company culture and how it helps employees.
- Assess the venue and risk for each particular case.
- Prepare, prepare, prepare when it comes to depositions.
There may not be a complete guide to counter the effects of jury perceptions, attitudes, and anti-corporate bias. But there should be a specific plan and approach to assess risk and potential bias, and to combat the tactics that are driving outsized verdicts.
Disclaimer: This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between Galloway and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions.
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