Defense Institute Aims to Educate, End ‘Skyrocketing’ Nuclear Verdicts

By Allen Laman

Robert Tyson believes the defense bar’s lawsuit approach is overdue for an overhaul.

The U.S. Chamber of Commerce Institute for Legal Reform reported in May that nuclear verdicts are on the rise, noting that there were a record number of “mega nuclear verdicts” — verdicts of $100 million or more — in 2022. Preliminary data indicates that record was again broken in 2023.

So, for the third straight year, Tyson and leaders of the Nuclear Verdicts Defense Institute (NVDI) recently hosted a four-day program aimed at teaching insurance defense and claims professionals how to end the “surge of skyrocketing jury verdicts across the country.”

“Nuclear verdicts are proliferating because the defense industry has been slow to change,” said Tyson, a noted trial attorney and author of Nuclear Verdicts: Defending Justice for All. “There is a pattern to what is driving nuclear verdicts across the country.”

He explained that the NVDI is designed to break that pattern by teaching the defense bar “proven methods that have saved the insurance industry nearly $3 billion in the past four years.” Per a press release, nuclear verdicts are defined as large, unsubstantiated jury awards that typically exceed $10 million.

These huge verdicts are at the forefront of the property and casualty insurance industry’s collective mind. Tyson sees value in working toward tort reform, legislative changes and damage caps — but he also recognizes that achieving lasting change in those arenas is challenging. He likes to focus on what’s happening in courtrooms.

“There is a pattern to nuclear verdicts,” Tyson said. “And the good news is you can break that pattern in the courtroom. And you don’t have to write [to] your congressman. You don’t have to go out and march for justice. You just have to change the way you try lawsuits.”

This is the direct focus of the NVDI.

Approximately 20 experienced defense trial lawyers from across the United States attended this year’s event. During the retreat-like gathering, a clinical psychologist demonstrated how psychology is used on jurors in nuclear verdict trials. This included a workshop experiment that evoked anger in the participants, followed by a guide to defusing juror anger.

Attendees learned how to pick a jury, give opening and closing statements and conduct direct and cross examinations — all specifically to prevent nuclear verdicts. After these anti-nuclear verdict methods were shared for each stage of a trial, attendees were split into small groups and tasked with demonstrating that they could implement what they learned.

In the press release, Rachel Beauchamp, partner at Cousineau Malone, said the institute provided “both psychological evidence and practical application of proven methods to use in trial.” Bill Daw, partner at Texas-based Daw and Ray, said the “most significant and unanticipated benefit was the incredible exchange of ideas and collaboration.”

Previous attendees have reached out to Tyson to tell him the methods they learned led to victories.

“The feedback has just been overwhelming,” Tyson said. “We’ve been told by many of the attendees over the years that it’s career changing. Our clients are asking us to do this. Insurance companies are saying, ‘Hey, we want the defense bar to share with each other.’ But we don’t really do that as a defense bar, in general.”

Meanwhile, the plaintiffs’ bar shares “everything” with each other, Tyson said. That’s what makes the Nuclear Verdicts Defense Institute unique: It provides an avenue for communication among competitors across the defense community.

Tyson is also the chief business development officer at Schaefer City Technologies, an insurance technology company that has developed software solutions to help insurance companies and their defense counsel spot and defend against nuclear verdicts. His research has shown that nuclear verdicts “are not happening to new attorneys,” he said. “They’re happening to very experienced attorneys.”

Something has changed in courtrooms, he said. Whatever experienced defense lawyers used to do isn’t working any more. Plaintiffs’ lawyers have changed their approach, “and the defense needs to adapt,” he said.