Nuclear Verdicts® have been an escalating problem for a long, long time — but the insurance defense industry has remained largely stagnant, even in the face of an ever-evolving and collaborative plaintiffs’ bar. In 2020, we released Nuclear Verdicts: Defending Justice for All. The book detailed our experience with stopping Nuclear Verdicts® through concrete trial strategies aimed at defusing juror anger. The book debuted as a number one bestseller on Amazon and has remained there, but over the years that followed, feedback from clients and industry experts shared the same theme:

“Thank you for sharing your experience and insights. Do you have any data to back this up? What is actually happening in courtrooms when a Nuclear Verdict® is awarded?”

We had more work to do. We had to answer these questions if we had any hope of convincing the industry that the change we need is change in our control. So, we decided to go straight to the source to find the answer: we went to the trial transcripts.

The Problem

Nuclear Verdicts® are a constant source of national news. The first runaway verdict to garner national press was delivered in 1994 when a jury awarded plaintiff Stella Liebeck $2.9 million in the now-infamous “McDonald’s hot coffee case.” The response then was confusion if not outrage.

Most recently, national media reported on what we call the “modern McDonald’s case,” a verdict issued earlier this year in a near-identical fact pattern. In that case, A jury returned a whopping $50 million to a plaintiff who sustained burns from hot tea in a Starbucks drive-through. There was no outrage in response to that verdict. Instead, multiple jurors reportedly cried because they wanted to award $100 million more than they did!

The problem? Nuclear Verdicts® continue to increase in frequency and severity, with no sign of slowing.

In 2024, by our count, juries awarded $31.3B in Nuclear Verdicts®. The insurance industry cannot sustain these rising indemnity costs, and consumers are bearing the burden of these outsized jury awards:

…[i]nsurers face mounting challenges in managing reserves, adjusting coverage limits, and mitigating the financial fallout from these high-stakes cases. Meanwhile, insureds are grappling with rising premiums, higher deductibles, and the looming risk of out-of-pocket costs that can exceed policy limits.[i]

Social inflation drives up costs, “emerging as the main driver behind rising US liability cases…”[ii] Indeed, “[s]ocial inflation exceeds economic inflation in driving growth of US liability claims”, leading to growing concern about skyrocketing industry costs.[iii] In short, everyone is paying the price as Nuclear Verdicts® drive social inflation to new heights with each passing year.

The Why

What has changed in the last 30 years? What is causing Nuclear Verdicts to rise in frequency and severity across the country? The answer is simple: plaintiffs’ attorneys have changed the way they try lawsuits. The plaintiffs’ bar has studied human psychology to learn what arguments work with juries, and which do not.

Our trial practice and research shows plaintiffs’ attorneys have changed their approach to trial in two primary ways. First, plaintiffs’ attorneys now regularly talk to jurors about money, tapping into the powerful psychological phenomenon of “anchoring” to drive large verdict awards. Second, plaintiffs’ attorneys’ trial tactics are now aimed at tapping into and manipulating juror emotion to fuel a nuclear award. Specifically, plaintiff’s attorneys are now focused on getting a jury angry during trial to secure a Nuclear Verdict®. The plaintiffs’ bar knows that angry jurors will use their verdict to try and “send a message”, protect the safety of the community, and prevent this kind of “harm” from recurring.

Beyond our personal experiences, what does the data say is truly happening in courtrooms where Nuclear Verdicts® are delivered?

The Analysis

Determined to answer the question, we performed a painstaking analysis of 100 recent closing transcripts from across the country from real Nuclear Verdicts®. We wanted to know: is there a pattern to Nuclear Verdicts®? Armed with a deep understanding of civil jury trial techniques, our team of researchers got to work meticulously reading, tracking, and analyzing every single word in the hundreds of thousands of trial transcript pages. This data would later become Nuclear Verdicts®: The Apex — Break the Pattern, our new book that reveals what we learned.

We tracked over 65 separate data points in every case on our quest to learn not only what is truly driving nuclear results, but what the defense could do differently to prevent them. We hypothesized what we might find based on our experience, but even we were unprepared for just how striking the data truly is.

There is, in fact, a pattern that every Nuclear Verdict® fits. And, there are key opportunities for the defense to rewrite the narrative, but the defense rarely uses them. So, what do we do about it? We cannot afford to sit back and bemoan the existence of Nuclear Verdicts® or their resulting fallout.

The Data-Backed Solution: The Apex

Fueled by our data analysis, we created The Apex, a groundbreaking blueprint for the defense to stop Nuclear Verdicts®. The Apex is an evolution of our strategies introduced in Nuclear Verdicts: Defending Justice for All that takes into account all of our findings from the data we analyzed. At the pinnacle of The Apex sits our goal as defense attorneys: Defuse Anger. Every element of The Apex works together and builds upon one another to reach the goal – the apex – and defuse juror anger. It is built to fight back against plaintiffs’ tactics while delivering on empathy and human psychology to equip the jury with the information they need to return a verdict that truly delivers justice – for all.

Critical to The Apex is the Core Four, four strategies the defense must use in every trial. The Core Four are: Personalize the Defendant, Accept Responsibility, Give a Number, and Argue Pain and Suffering. We know these strategies work together to prevent Nuclear Verdicts®, and as we hypothesized, we have not found even a single Nuclear Verdict® where the defense used all four elements.

Our research also confirmed that failing to use any of the Core Four is incredibly damaging for the defense. In those cases, verdicts averaged almost 50% more than plaintiff’s ask. Put another way: the jury was so enraged in those cases that they awarded every penny of plaintiff’s ask, plus almost 50%. And, our data revealed just how impactful the Core Four are when it comes to reducing damages, even in Nuclear Verdicts®.

Through our meticulous analysis of real Nuclear Verdicts®, we saw firsthand the impact of using The Apex, even in cases that go nuclear. Bearing in mind that not a single one of the 100 Nuclear Verdicts® analyzed resulted after the defense used all of the Core Four, we wanted to see if using any of these elements impacted damages awards. We confirmed our hypothesis that engaging any element of the Core Four helps the defense at trial, as well.

The data shows that accepting responsibility in trial results in a reduction in damages of over 62% compared to failing to accept responsibility. And yet, the defense still fails to use this critical tool 85% of the time. Similarly, where the defense gave a number, damages were reduced by over 75% compared to when they did not. And, as we expected, the defense still refuses to Give a Number 54% of the time. We also revealed a startling correlation between going for a defense verdict while failing to give a number and astronomical verdict sizes. In this scenario, verdicts averaged double what plaintiff asked for.

We observed a statistically significant benefit for the defense when they deployed multiple of the Core Four strategies. In the few cases where the defense used three out of the four Core Four strategies, verdicts averaged only 43.7% of plaintiff’s ask, representing a decrease of almost 100% compared to those cases where the defense used none of the Core Four.

The Takeaway

Nuclear Verdicts® are a worsening industry-wide problem, fueling social inflation felt by everyday Americans. The traditional defense strategies and trial techniques simply do not work to stop the rising tide of Nuclear Verdicts®. It is time for the industry to be bold, embrace new defense strategies, and to break the pattern. It is time for the industry to reach The Apex.

Keep Reading

From Code to Courtroom: Raine v. OpenAI and the Future of AI Responsibility It’s All Legalese to Me: How Taking Responsibility Can Help Avoid Liability Seat Policies or Passenger Conflict? The Legal Crosswinds in Rombola v. Southwest Upgrade Your Deposition: Applying the Core Four When Is a Second Potentially Case-Dispositive Summary Judgment or Summary Adjudication Motion Now Allowed in California? The 2025 Code Amendment Adding CCP Section 437c(a)(5) How Reading for Fun Makes Me a Better Attorney Cover Me: Indemnity Agreements Under Georgia Law Collision, Care, and Clarity: California Supreme Court Reins in MICRA’s Statute of Limitations in Ambulance Crash A Nuclear Lesson in Ethics & Conflicts from the Eastern District of New York

More by this author

Reaching The Apex: Why We Used Data to Prove Nuclear Verdicts® Can Be Stopped Insurers Must Adapt to Stop Nuclear Verdicts® Before They Begin Taylor Swift’s 13 Takeaways to Stop Nuclear Verdicts® Can Taylor Swift Help Prevent Nuclear Verdicts®? “Thinking Out Loud” About Ed Sheeran’s Use of The Nuclear Verdict Defense Methods Gwyneth Paltrow on Trial: How Authenticity and the Tyson & Mendes Nuclear Verdicts® Defense Methods Defused Juror Anger and Won the Day Defense Industry Must Protect 2011’s Howell v. Hamilton Meats Runaway Verdicts: Reversing The Trend Teach Defense Lawyers How to Humanize Your Insureds

Sources

[i] Nicole Panteloucos, Will nuclear verdicts impact the insurance industry in 2025?, InsuranceBusiness (Jan. 7, 2025), https://www.insurancebusinessmag.com/us/news/breaking-news/will-nuclear-verdicts-impact-the-insurance-industry-in-2025-519537.aspx (on file with the Apex Defense Consulting library).

[ii] Litigation costs drive US liability claims by 57% over last decade, reveals Swiss Re Institute, Swiss Re (Sep. 7, 2024), https://www.swissre.com/press-release/Litigation-costs-drive-US-liability-claims-by-57-over-past-decade-reveals-Swiss-Re-Institute/0b538159-9648-47da-a152-4550a7640d35 (on file with the Apex Defense Consulting library).

[iii] Id.