Shortly after the bombshell $148 million verdict in Georgia against former New York City Mayor Rudolf “Rudy” Giuliani, I questioned on LinkedIn whether a notorious verdict of that magnitude would promote further social inflation of jury verdicts in negligence lawsuits. The post garnered 17,120 impressions and 59 often very opinionated comments as of this writing.
Many, if not most, called attention to the egregious conduct and dismissed the dangers of the substantial award since it “was not a negligence claim.” Some recognized the potential for a juror to use the award, especially the compensatory elements, as a benchmark in deliberations. Many observed the unique circumstances of the case, and that the tactical errors of the defense contained many factors that could drive a nuclear recovery.
Ultimately, this case is a perfect vehicle for understanding the pitfalls that lead to nuclear verdicts. Most nuclear verdicts involve factual subtleties, less prominent defendants, and a lot of moving parts. The Giuliani case involved only three key players (two plaintiffs and Giuliani), a straightforward claim (defamation), and a directed verdict on the underlying cause of action. The only aspect of the case considered by the jury was damages.
Since nuclear verdicts are all about the damages, Ruby Freeman, et al. v. Rudolph W. Giuliani shines the spotlight on a number of elements that lead to a nuclear verdict. The jurors, of course, were not deciding the damages in a vacuum. They were reminded that Giuliani publicly called out the plaintiffs over 30 times, falsely asserting that Ruby Freeman and her daughter, Wandrea “Shaye” Moss, brought suitcases full of fraudulent ballots into the voting facility and passed around USB drives “like vials of heroin or cocaine.”
On the surface, it appears that the jury acted out of anger. From a jury dynamic perspective, anger gives way to empowerment. Despite current beliefs that angry jurors are primarily responsible for nuclear verdicts, empowered jurors who believe they can right a wrong are more dangerous.
With this as prelude, Giuliani’s defense team failed to humanize the defendant. This point is at once the simplest and most complex of all the moving parts. On the simple end of the spectrum, Giuliani never showed remorse; he never apologized to Freeman or Moss for turning their world upside-down. Giuliani was seen as the sophisticated political operative from New York who was present in Georgia as a carpetbagger and whose actions were the antithesis of the local culture. His failure to apologize and own the wrong that the plaintiffs suffered cast him as an unrepentant, politically privileged bully.
The problem was that providing a meaningful apology was foreclosed by his jeopardy in criminal proceedings. Yes, he could have presented a carefully crafted apology that did not admit fault, but it would have had little impact unless he took the stand so that the statement could have been admitted into evidence. But this approach was never a viable option. Had he taken the stand, the plaintiffs would have asked relevant questions with answers that would have haunted Giuliani in his upcoming criminal trials. Rather than incriminate himself, he would have had to “plead the Fifth.” Since the Freeman case was a civil matter, taking the Fifth could (and certainly would) have been used against him. It would have reinforced the perception of him being an unrepentant tormentor: The perception of Giuliani being the devil who went down to Georgia anchored the trial.
Arguably, the fuse for the nuclear verdict was lit during jury selection. Jury selection was at a premium in this case. Too often, attorneys focus on the demographic characteristics of jurors and not on their attitudes and experiences. For example, one of the jurors in this case indicated that she left her job as a daycare professional after she was injured in a drive-by shooting. This juror also revealed that three of her seven grandchildren were killed in a house fire in 2021. This person should never have been permitted as a juror. Across all case types, jurors who have several significant “life events” often identify with others who have been wronged.
Jurors become empowered only after receiving evidence that a wrong has occurred that they, the jury can make right. The fact that Freeman and Moss provided highly emotional and relatable facts that every juror in the case could personally relate to made it most compelling—add to that the fact that Giuliani did not take the stand to provide a counterbalance of any sort.
Defense counsel’s attempt to recount Giuliani’s leadership in a far-off state and a far-off time (20 years earlier) could not counter the immediacy of the 2020 election.
Lessons Learned
Herbert Stern, former U.S. Judge for the District of New Jersey, often pointed out that, before the jury meets the litigants, they meet the attorneys through opening arguments. Successful attorneys are able to win their juries over early and, in doing so, are able to blunt some of the less-appealing aspects of their clients.
Here, the jury would quickly come to terms with its empowerment, and there was a window—be it a very small one—for Giuliani’s attorneys to bond with the jurors; to tell them that they do have the power to help the plaintiffs regain their good lives and that the conversation that was to follow was an honest search for the best solution for the plaintiffs. The fact that the verdict virtually mirrored the plaintiff’s request is the strongest evidence of the failure by the defendant’s legal team to create the necessary bond of trust with the jury. Arguably, this failure rests with the defense team; not Giuliani.
The failure of these factors all but guaranteed a nuclear verdict. The only question that would remain is how big would the crater be. The plaintiffs addressed this issue masterfully. They stated clearly, unapologetically, and frequently their simple presentation. Defense counsel did not provide a counter-anchor to the plaintiffs’ requested damages amount. Instead, he told them to be “reasonable” in their amounts. Often, arguing for reasonable damages only succeeds when the defense can show credible evidence (e.g., expert testimony) to support its assertion that the plaintiffs’ amount is too high. Without providing what a reasonable number was, plaintiffs’ number became the unmovable anchor.
Nuclear verdicts are preventable. However, extensive time and resources are needed to identify arguments that resonate with jurors and to sufficiently prepare witnesses for testimony.
Of course, there are other obvious considerations, such as trying to move the matter to mediation where, presumably, a more experienced fact finder with the sophistication to separate the exposures from the puffery can work to fashion a more nuanced resolution.
From a claims and litigation perspective, we need to get past the celebrity of the case and understand the elements that can lead to nuclear disarmament.
About the authors:
Jeff Marshall is a risk management and claims management consultant. imanagerisk4u@gmail.com
Steve Wood, Ph.D., is senior litigation consultant with Courtroom Sciences, Inc. swood@courtroomsciences.com
Floyd Cottrell is a partner in Rawle & Henderson’s Hackensack, New Jersey office. fcottrell@rawle.com