The most important legal concept I learned during law school[1] was the Rule Against Perpetuities – just kidding. It is actually the “reasonabl[e] prudent person” (“RPP”) standard.[2] As many of you know, the RPP standard is used, especially in negligence cases, as the hypothetical objective person against whom conduct is measured. Black’s Law Dictionary provides that it is measuring the conduct by looking at “the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others’.”[3] I like the RPP standard because it is basically telling you to judge the conduct of the person on whether that person used common sense. And common sense is, well, common. I find myself applying the RPP standard far beyond the practice of law. In fact, I use it almost every day to make sense of ordinary human interactions.

To take it out of the context of litigation – for instance, imagine someone telling you about the worst day of their life. (Insert your creative version of that story here.) As you hear this story, you watch this person cry hysterically while barely able to get the words out. How would you react? Would you sit there with a stone-cold look on your face and say, “Okay but let’s go grab lunch.” That person would probably be angry over lunch and delete your phone number, but that is beside the point. The point is that person would be angry, and that would be an expected reaction. It is expected, because society and common sense tell us when someone is upset, we show some level of empathy, understanding and comfort. In other words, we should act like a reasonable prudent person.

Now, imagine a bystander watching this play out. The bystander would probably think you were a heartless person and get angry, as well.  Because regardless of what the story was, you had an opportunity to be a good human. You could have shown that person some empathy, a moment of kindness, and some level of understanding.

That bystander might even feel compelled to show the storyteller a gesture of kindness as they pass by to show that someone is in their corner.

Going back to litigation – jurors are the bystanders and members of society (but with the power to determine the fate of the litigants, of course). As we know, “[a]nger is the number one motivator of runaway jury verdicts in America.”[4] The foundation of The Apex, Tyson & Mendes’ strategy to combat the surge in outsized and unjust Nuclear Verdicts® by addressing their number one cause, anger, begins with a foundational principle: Be a Good Human.[5] Being a good human is the foundation upon which the Core Four is built. Personalizing the defendant, accepting responsibility, giving a number, and arguing pain and suffering all begin with the same premise: jurors expect reasonable people to demonstrate empathy, responsibility, and common sense. A jury is watching how an attorney, who is still a human being at the end of the day, treats other people who are oftentimes sharing details about what they feel were the worst days of their lives. Not showing empathy shows a lack of common sense, which allows for anger and runaway jury verdicts to manifest.

Takeaway: Be a Good Human

Why is it important? Being a good human is more than a guiding principle. It is the foundation of The Apex and the Core Four. Demonstrating empathy, responsibility, and common sense throughout litigation helps defuse anger before it takes hold. When attorneys consistently show jurors that their clients and counsel are acting like reasonable, compassionate human beings, they build credibility, trust, and ultimately a stronger defense.

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Sources

[1] Shout out to California Western School of Law!

[2] Reasonable Person, Black’s Law Dictionary (12th ed. 2024).

[3] Id.

[4] Robert F. Tyson, Jr., Nuclear Verdicts: Defending Justice for All 22 (1st ed., Law Dog Publ’g, LLC 2020).

[5] Robert F. Tyson, Jr. and Cayce E. Lynch, Nuclear Verdicts: The Apex – Break the Pattern 27 (1st ed., Law Dog Publ’g, LLC 2025).