February 2, 2012

When Your Case Follows a Bellwether, Prepare Jurors to Hear only Part of the Story

By Dr. Ken Broda-Bahm and Dr. Kevin Boully: 

Bellwether 2_guttorn Flatabo_fcc
The first bellwether case in Toyota’s “Unintended Vehicle Acceleration” litigation has just been selected by a judge in California.  To some, that may come as a surprise, since it might have been assumed that these cases would have deflated after the National Highway Traffic Safety Administration (NHTSA) concluded a year ago that there is no electronics-based cause.  Then, just last week, an exhaustive investigation by the National Academy of Sciences again failed to find a causal link between vehicle electronic throttle-control and sudden acceleration.  Yet still, it appears, the cases have continued like…well, like some kind of unstoppable vehicle.  That suggests there may be more to the story than what we’re seeing in the press, and we will have to wait on the trials to find out.

The interesting point for me at this stage is the emerging “bellwether” structure.  The term originally refers to a sheep that leads other sheep by virtue of a bell around its neck.  In litigation, however, the bellwether structure is increasingly used to select a specific case, or a few cases, from among a much larger group of similar cases to be tried first in order to resolve some of the broader issues in the litigation.  A finding of liability and general causation, for example, might be established for all plaintiffs, leaving it to the rest of those in the group to just prove specific causation and damages.  The practical effect of a bellwether structure is generally to encourage settlement, but for the vast majority of cases that are “nonbellwether,” it means that there is at least some chance to go to trial with a number of issues already established by another jury.  That is undoubtedly an advantage for plaintiffs, yet it also raises some interesting communication challenges.  Is it possible to fully motivate and persuade these nonbellwether juries if they are only hearing part of the story?  Does it have an effect on the damages awarded?  This post looks at the relevant research, and makes a few recommendations for cases within a bellwether model. 

The Toyota Bellwether

The way a case becomes a bellwether is usually a process of compromise.  The plaintiffs want to try the best claims first, and the defendants want to lead with the worst claims.  Or, more charitably, both parties want to try the cases that will give them the greatest insight on the most important issues coming down the road, they just tend to have different views about which cases those are.  In the Toyota litigation, however, the choice was to draw a wild card:  Los Angeles County Superior Court Judge, Anthony Mohr, chose from among the 100 state court cases one that was offered by neither the Plaintiffs nor the Defendant.  He picked the case of Peter Uno, who alleges that his wife, Noriko, died as a result of a defect in her 2006 Camry that caused it to accelerate to 100 miles per hour before crashing into a telephone poll.  The judge’s off-the-menu choice was motivated by this specific Plaintiff’s own failing health, and the trial may start as early as September 2012, putting the state court cases well ahead of the February 2013 date for federal multidistrict litigation. 

The process from here, and exactly which issues are entitled to preclusive effect in subsequent trials, has not yet been made clear in the press that we’ve seen, but one thing is clear:  All eyes in this litigation will be on Mr. Uno’s case.  The Plaintiff will try to focus on evidence of Toyota’s lack of candor, and the $16 million dollar fine levied by the NHTSA.  Indeed, a Toyota executive’s recent admission that the company “avoided direct confrontation of the truth” in responding to inquiries, might also play a role.  If that information is successful in leading the jury down the path of liability, it may also elicit a certain level of anger.  And we know that anger plays a role in motivating damages.  So if future trials are following this bellwether precedent, will future plaintiffs benefit from this sense that “we’ve already won…we’re just here to collect,” or will they lose out because the juries are not hearing about the bad acts that drive juror anger? 

The Structure’s Effect on Nonbellwethers

Unfortunately, there isn’t yet a definite answer to that question, because we are lacking direct research on the effects in trial when issues are decided by a previous bellwether jury (Hear that academics?  An interesting area…with no prior research!).  Instead what we have is research on the similar, but not fully parallel, situation of bifurcation in which different juries decide the issues of liability and damages.  Drawing from that body of research, there are two critical findings that may apply to a bellwether situation. 

Jurors Who Don’t Hear Evidence of Bad Conduct Give Smaller Awards.  According to a number of studies, including Smith & Greene (2005), when jurors hear damage information alone, it just isn’t the same as hearing the whole story, and the difference can be measured in dollars.  “Jurors who heard evidence regarding the plaintiff’s injuries, but no evidence of the defendant’s conduct, gave smaller awards for the specified injuries than did jurors who heard evidence about both the injuries and the defendant’s role in causing the accident.”  This stands to reason when we remember that, instructions notwithstanding, when calculating damages, jurors are not just measuring the harm done.  Instead, particularly but not exclusively in noneconomic categories, they are also making a statement about the degree of the defendant’s responsibility.

Jurors Will Discount Damages if Liability is Uncertain.  As anyone who has observed mock deliberations will attest, damages are also an outlet for compromise and uncertainty.  According to one study by Wissler, Rector & Saks (2001) “If jurors are unsure of their decision on liability, they might make up for the possibility of finding an innocent defendant liable by lowering the amount they award the plaintiff.”  A nonbellwether jury may hear that another jury found liability in a prior trial, and they may even hear some of the context and the reasons why.  But the question is whether this jury can ever be as certain about the liability conclusion as the jury that heard all the evidence and reached that conclusion on their own.  If a defendant succeeds, even with a limiting instruction, in introducing evidence that may make a second jury doubt the conclusions of the bellwether jury, then that uncertainty may pay off for them in a reduced damages award.   

Prepare Nonbellwether Jurors for Part of the Story

There isn’t a clear solution to this problem for plaintiffs, but any disadvantages to a bellwether structure are likely far outweighed by concerns of simple efficiency, as well as greater likelihood of a timely settlement offer.  In the event that your case does make it to trial following a bellwether, we have a few recommendations.

Submit a Statement of the Case that Includes Substantive Liability Information.  From a plaintiff’s perspective, jurors need to hear as much about that first trial as the judge will allow.  Jurors need confidence that the bellwether decision was thorough, accurate, and respectable.  A clear and nonlegalese statement from the court, thoroughly explaining the detail and depth of the first trial, enhances the jury’s confidence in the earlier decision which protects against a deflation of damages.  

Pursue Written Opening Statements to Be Read Prior to Voir Dire.  One of the key areas in voir dire will center on panelists’ ability and willingness to defer to another jury’s decision based on evidence that they did not hear.  In order to give anything other than a rote “yes, I’ll follow the instructions” answer, panelists will need to know more context on exactly what they are being asked to trust.  In that situation, a good procedure is to allow all parties to make a brief statement prior to the second trial’s voir dire, not to relitigate the bellwether case, but to explain the story in their own terms, including their client’s position following the first trial and the instructions that jurors will need to follow in hearing the evidence in the second trial. 

Request a Clear and Meaningful Instruction Against Discounting Damages.  Despite our occasional cynicism on the value of legal instructions once the door closes on the deliberation room, there is some evidence that in this context, the instruction matters.  The same study cited above (Wissler, Rector & Saks, 2001), also found that a court instruction not to discount damages based on uncertainty about liability, reduced the impact that uncertainty otherwise would have had on a general damages award.  Plaintiffs should pursue an instruction, ideally prior to evidence, to the effect that jurors’ individual uncertainty about liability or the reasons and substance underlying the bellwether jury’s verdict, should not be used to discount their assessments of damages.  It is only human to let uncertainty play a psychological role, but the instruction at least provides other jurors with a response if it creeps into deliberations. 

For a nonbellwether client, the trial structure can feel like being in the back seat of a car that is speeding ahead without your control.  As in all things, the key is to adopt your communication to the unique situation. 

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Other Posts on Bifurcation and Damages:

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ResearchBlogging.org Smith AC, & Greene E (2005). Conduct and its consequences: attempts at debiasing jury judgments. Law and human behavior, 29(5), 505-26 PMID: 16254740

Wissler RL, Rector KA, & Saks MJ (2001). The impact of jury instructions on the fusion of liability and compensatory damages. Law and human behavior, 25(2), 125-39 PMID: 11419378

Photo Credit:  Guttorn Flattabo, Flickr Creative Commons

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