Thoughts from the Trenches #5: The Nuclear Verdict – What Happened?

70% of potential jurors are open to significant punitive damages against corporations

COVID-19, inflation, trade wars, and the threat of AI taking away jobs—all so the rich can get richer. Common messages in the media. It should not be surprising that when handed “15 minutes of power,” jurors want to use it. Driven by frustration, personal trauma and a sense of powerlessness, today’s jurors see punitive measures as a tool of societal correction. I see this continually in mock trials and in real jury selections nationwide.

The Populist Shift: The Split In Conservatives

The old juror label of “Conservative/Republican” means pro-defense is now dangerously misleading. This group has, in fact, split into two very different entities. While the "traditional conservative" juror still exists, their numbers have decreased dramatically. It is now more accurate to label many former conservatives as anti-institutional and anti-establishment populists. This populist alignment means they are far more likely to see a massive corporation not as a job creator, but as an overreaching, unchecked power structure.

Skepticism toward science and facts has skyrocketed. Society is experiencing an unprecedented decline in public trust toward scientific institutions, government regulators (like the FDA or EPA), and traditional authorities.

Shifting Core Juror Demographics

The jury box is increasingly filled by Millennials and Gen Z, who have spent their adult lives weathering economic instability and a skyrocketing cost of living. The “American Dream” is seen as unachievable by many. Many harbor a deep baseline skepticism toward massive corporate wealth—a view continually reinforced by the algorithms that drive their social media news selection.

Guilty Until Proven Innocent

Rather than waiting for a plaintiff to prove a corporation did something wrong, jurors often enter the box expecting the corporation to prove it acted both legally and for many jurors, ethically. This makes sense given they increasingly view businesses through a lens of deep suspicion, automatically assuming that corporations prioritize profits over human well-being.

Jury instructions do not resolve this problem. Many jurors feel powerless. They want the system to prove it works or they will attempt to change it using their “15 minutes of power”.

Increased Deliberation Friction

Increased political and cultural polarization has deeply penetrated the jury room. Jurors are far more willing to entrench themselves, refuse to compromise, and even trigger a hung jury rather than concede to an opposing viewpoint. Furthermore, disagreement during deliberations is increasingly treated as a moral failure rather than a simple difference of opinion. Based on what I have seen in mock trials since COVID-19, the level of anger toward “the system,” the disrespect and sometimes open hostility toward jurors with a different viewpoint, and the number of jurors openly unwilling to give any credibility to opposing arguments are the highest I have ever seen in over 40 years.

Changes In Jury Selection

California's sweeping legal reform is creating a shift in who actually gets selected for a jury. Judges must now strike down an attorney's peremptory challenge if an objective observer could view implicit bias as a factor in the decision. The law removed the need to prove intentional discrimination. This has severely limited the ability of defense lawyers to dismiss jurors based on factors that typically relate to pro-plaintiff sympathy such as occupation, economic situation, or corporate attitudes.