Login | November 15, 2018

As verdict amounts rise, when does it become too much?

Law Bulletin columnist

Published: November 22, 2017

Is there such a thing as too much? Lawyers, parties in litigation and especially insurers are asking. Judges have to be wondering.

We’ve been seeing verdicts in ranges never before imaginable. Why? Here are possible reasons.

• Inflation in general. Not much to say about that.

• Unimaginable numbers in other sectors. Athletes’ and actors’ salaries. CEO pay. Silicon Valley startups. Budget deficits. Lottery numbers. We used to talk about millionaires — millionaires are so abundant, they’re not special anymore. Now we talk about billionaires. Multi-multibillionaires. Every day the newspapers talk about trillions of dollars.

• The sheer brilliance and motivation of plaintiff attorneys. With the contingent fee, they are motivated. They are competitive. And they are brilliant and creative. It is their job and their duty to continually push the envelope, and they always have.

Of course, defense attorneys are equally talented. They just do not have the same financial motivation. And they don’t have the same independence or budgets to handle cases the way they want. It may be arguable that the very depressed defense billing rates, insurers’ micro-management and insurers’ restrictions on their own counsel are indeed getting them just what they are paying for.

• A possible lessening of personal fear about the economy. With consumer spending and confidence increasing and with the meteoric rise of the stock market, some jurors may feel more inclined to spend. Especially when they are spending other peoples’ money.

• Less fear that verdicts will impair jurors’ own safety. When doctors were supposedly “fleeing” Illinois, jurors might understandably have worried about the availability of their own health care. Those fears do not appear to have materialized.

• Increasing awareness and acceptance of mental and physical disability and their devastating effects on individuals and on communities.

There are many, many more worthy causes vigorously advocating to fight physical diseases, for mental health issues and for veterans’ rights. People are generally much more involved than before. So many have participated in a walk or a run or a challenge, or wear T-shirts or wristbands or have involvement of some sort with health issues.

Health issues dominate the news. We have become focused on addressing problems with the health-care system. We are seeing the devastating effects of mental illness as we never have before. Direct-to-consumer drug television ads are constant reminders of abundant illnesses and disabilities.

• Heath-care costs are skyrocketing. “Specials” in even small cases can be gigantic. Epidural shots and hospital visits can be expensive. The cost of drugs and life-care plans are in ranges never seen before. The old “three times specials rule” is long, long gone.

Medicine has advanced, and there are many more technological opportunities. There are new drugs. Specialized studies are much more common. The standard of care has to accommodate these advancements. The meaning of compensation now includes treatment options not previously available. Additionally, life expectancies are rising, meaning more care and for longer.

• A normal rebound. We just saw a period when tort-reform efforts were raging. Our president and others in government called for drastic measures. There were posters and ads and radio campaigns. Verdicts were depressed for quite a while. Much of it now looks like “fake news.” The world didn’t collapse, after all. The history of personal-injury verdicts is one of up-and-down periods. This may simply be an up period.

• Politics. Many jurors may be feeling and reacting to what they see as a nonempathetic and self-centered approach by some politicians and vocal political groups.

• Good old American independence. Some jurors see the defense — big business, big insurance, big medicine — as mega-establishments with only their own interests at heart. A big verdict is a way of making a statement.

• Corresponding decline in small- and midsize verdicts. The possible good news for some insurers is that the number of filings is way, way down and continuing to decline. Many plaintiff lawyers won’t even look at cases that were formerly tried to modest verdicts because the recoveries don’t justify the time and expense. Strictly soft-tissue, no property damage cases with little medical care are being rejected, even when negligence is admitted.

Verdicts in midlevel cases do not seem to have materially escalated. The costs of litigation have made even strong-liability medical-malpractice cases with low or modest injuries unsustainable.

Certified class actions are rarer. The big verdicts may be obscuring the fact that there are far fewer cases than before, that other verdicts have greatly declined and that the number of cases filed continues to decrease.

That decrease in filings has to have many reasons. Since the number of lawyers is increasing, one might think the number of filings would also increase. However, our world is safer than it used to be. Seat belts, construction safety measures, better product safety and increased medical attention to patient safety have made our world a much safer place. Plaintiff-side lawyers deserve some of the credit.

Additionally, guilty/not guilty ratios seem relatively stable.

• Maybe the verdicts are just not that big. If anyone is crying about it, no one seems to be listening.

Whatever the answer, the question still stands. Plaintiff lawyers still hear echoes from the infamous McDonald’s coffee verdict, which continues to get ridiculously exaggerated. (In one of my voir dires, a juror actually objected to a woman’s spilling coffee on herself and getting $20 million.)

Will these verdicts create risk of a similar rebound?

I’m eager to hear from you. Are these very large verdicts good, bad or neutral? What can defense lawyers and insurers do about it? Will these big verdicts affect settlements? Should judges ever intervene?

Is there such a thing as “too much?”

Hon. Michael R. Panter (Ret.) is a senior mediator at ADR Systems of America LLC. He previously served in the Law, Family and Municipal Divisions of the Cook County Circuit Court. He was a trial lawyer for 30 years. Share responses and comments at mikepanter.com.