Hard Times Make Juries Unpredictable
Plaintiffs’ attorneys worry that big verdicts will become scarce
By THOMAS B. SCHEFFEY
In the weekly meetings at Hartford’s RisCassi & Davis, a prominent personal injury firm, the big topic of discussion, is: “What impact the economy would have on a jury’s thinking,” says partner Paul Iannaccone.
“In the past it was never a factor. It’s a factor now. I’m of the view that the worse the economy gets, the lower the verdicts are going to be,” he said. “I think that jurors are going to be resistant to making large awards, especially in cases where we don’t have a severe injury, when the jurors themselves don’t have the same assets they’ve had in the past.”
His counterparts in the defense bar share that view for run-of-the mill cases. But for multi-million-dollar matters – arising with increasing frequency – the atmosphere is potentially explosive, said James Robertson, a top trial lawyer at Waterbury’s Carmody & Torrance.
“I think the spikes will be higher,” he said. “Juries will be angrier, and given the circumstances of a particular case, I think they’ll be far less tolerant of certain businesses -- Lord protect the company that has shown greed or gross irresponsibility. I think an angry jury will really punish them.”
The Law Tribune caught up with Robertson while he was in Texas, defending a products liability case with nine defendants, and working up a formal risk analysis for his clients.
Fresh, accurate and localized information is important in making those assessments, which are central to the art of lawyering. That’s the reason the Law Tribune is again presenting a special supplement reviewing the large and small personal injury verdicts and settlements of 2008.
Even small differences in time and place can be important. “Waterbury’s situation is going to be very different from Fairfield County’s,” said Robertson, whose firm has analyzed a recent spate of unexpected seven-figure verdicts in blue-collar Waterbury.
New levels of unemployment and foreclosures are currently having an effect from the first day of a trial, said New Haven lawyer John W. Mills, whose does both defense and plaintiffs’ personal injury work.
Interviewed last week, he said he had just seen a stream of jurors excused from jury duty so they could hunt for jobs. “Judge [Emmett L.] Cosgrove in New Haven was very empathetic and said, ‘I know what you’re going through in these times. I’ll let you go, good luck with your interview,’ or what have you. It’s pretty sobering.”
Unseen Hardships
Mills described a client forced to settle a case for what he considered “essentially nothing” because she had to stave off foreclosure. His client was a “nice lady, involved in a serious accident who made a good impression in her deposition. She had well-documented medical expenses and would have been great at trial, but she said `Jack, if I don’t get this money, I’m going to lose my house.’”
He had to abide by his client’s wishes, but, he said: “It killed me. What happens in our business, if you’re calling the insurance adjuster all the time, they’re experienced, they sense it. They think either you or the client needs the money, and they totally low-ball it. So we settled it for $20,000. I feel badly for her.”
In Stamford, Stewart M. Casper, a former president of the Connecticut Trial Lawyers Association, said that no trial lawyer wants a juror who’s preoccupied with finding work. In today’s grim economy, careful voir dire selection has never been more important, to smoke out hidden prejudices and bias. Heartening to plaintiffs’ lawyers, he said, is the knowledge that almost “every potential juror knows that most of these cases are about insurance companies.” Although the financial sector is blamed for the widespread financial troubles, Casper said that could cut both ways.
“People can be really ticked off at insurance companies and banks,” said Casper. Or they can be worried that a big award might harm an important employer. “I think it’s important to use what we have available to find out about what jurors think,” through individual voir dire.
RisCassi’s Iannaccone, who sense the economy will reduce plaintiffs’ verdicts, agrees that “bad guy” corporations are vulnerable: “If the defendant is an investment house that pays out billions in bonuses and gets bailout money, jurors might say, `Well, you know what, you’re going to pay this guy a million dollars as well.’”
The plaintiffs’ lawyers interviewed reported that insurance companies are taking more time than usual to send settlement checks, often waiting until the last possible day. Buying time in other ways is also becoming more prevalent, said Mills.
“What I’m seeing and hearing is that insurance companies are asking for extensions of time. They don’t want to hire defense counsel, and want to do nothing while they wait.”
Instead of hiring outside counsel to proceed with cases, there’s an increasing tendency to keep matters inhouse, and ask for delays and continuances, he said.
Clients In Bind
Cheshire lawyer Brian M. Flood, of Moore, O’Brien, Jacques & Yelenak, said financial desperation is putting new pressure on trial and settlement strategies.
“There are some clients who have called, who are in the process of losing their homes,” he said. “They’ve made all these deals with the mortgage companies, and it’s good that their trials are only a little time away.”
Flood said he’s also had clients who turn to factoring companies, which lend money against a plaintiff’s anticipated court win or settlement. “Any time you look at the situation where a client has done that, and you look at the paybacks, and they’re just exorbitant. I try to discourage people from going that route,” he said.
Mills said he has had the same experiences. “I have a client who’s a chef for Ikea [furniture company], and he needs the money. A company out of New York called Law Cash is asking me to fax over his documents, and they’ll give him 50 cents on the dollar, but it’s going to wipe him out compared to what he would get if he waits.”
Mills said he advised the client to wait, “but he said he’s behind on his rent, he’s going to get evicted. I’m trying to look out for his long-term interests, but at the same time, I’m not in his shoes.”
Despite the hardships and uncertainties in the world of personal injury litigation, the economic downturn has actually caused the ranks of trial lawyers continue to swell, said Nicholas Wocl, of Stamford’s Tooher, Wocl & Leydon. He heads the Connecticut Trial Lawyers’ Core Case Committee, which monitors work of average practitioners – cases in the $20,000 to $100,000 range.
He’s finding that “real estate lawyers who previously referred cases out to specialists are now retaining their files now. You’re starting to see lawyers in the courthouse who haven’t been there in ten years.”
Whether plaintiffs or defense, seasoned or new to trial work, attorneys are thinking long and hard about the shifting factors that go into evaluating cases for settlement or trial. “We read everything we can,” said Iannaccone, “and everything that’s published by more academic thinkers, and particularly what’s going on in Connecticut courtrooms.”
In addition to verdict reports, academic analyses and courtroom lore from colleagues, are their other important sources to turn to for an even more authoritative viewpoint? Iannacone considered the question for a moment: “No matter what, we all ask our spouses.”•
HOME
