Nuclear Verdicts™ – verdicts outlandishly disproportionate and unsupported by facts, evidence, and law – have been on the rise in civil litigation nationwide. What is behind them? One of the driving forces is emotionally charged storytelling.
When an attorney shares a client’s story with the jury, it can be emotionally impactful. When an attorney shares a personal anecdote to make a point, hoping the jury will make an emotional connection to the attorney and/or plaintiff, this can work just as well. Personal storytelling does more than deliver a message; it also gives an attorney the ability to connect with and bond with the jury on a deeper level. It can evoke an emotional reaction from jurors causing them to feel both empathetic and sympathetic towards the attorney and his/her client. Jurors begin to feel the experience, the loss, the sense of wrong, and what each individual involved might have experienced. Jurors are no longer in a courtroom which is confined by formalities and filled with confusing legal terminology. Instead, they are spoken to in a way they understand and told about experiences they can relate to.
The following are a few examples of how stories in an attorney’s closing argument can set up a verdict:
1. One plaintiff’s counsel shared a story of his childhood experience in the closing argument of a wrongful death action against a facility for people with developmental disabilities. Counsel explained what had happened when his mother caught him taking a piece of candy from a store when he was four or five years old. He shared that, at that early age, he learned if one committed a wrong, one has to admit it. However, this alone would not be enough; besides admitting being at fault, one has to make it right. He shared how embarrassed he felt when his mother took him back to the store to clean up his “wrong.” The jury awarded plaintiff a $2 million verdict while finding the facility was 70% at fault.
2. In a trial against Fiat Chrysler involving a fuel tank explosion which killed a four-year-old child, a plaintiff’s attorney explained the full value of life by using a personal metaphor regarding sunglasses which were a gift from his grandfather, a World War II pilot. He argued while the sunglasses would be valued at $200 to the average person, they were much more valuable to him. Specifically, counsel argued this gift from his grandfather represented the value of his childhood memories, his time with his grandfather when he was younger, his grandfather’s love for him, and their connection. Plaintiff’s counsel drew a parallel to point out the value of the deceased plaintiff toddler was the value of an entire lifetime of experiences the toddler would never have. Jurors awarded $150 million in total.
3. In a trial involving a teenager’s alleged traumatic brain injury which caused loss of taste and smell, plaintiff’s counsel related the significance of having a sense of taste and smell to memories with his deceased father and grandfather. Plaintiff’s counsel argued the smell of tobacco took him back to his childhood, took him back to his grandfather, and the sense of smell represented their love and connection. He argued plaintiff in the case perhaps did not yet realize the full impact of what had occurred to him, but it was “the verdict for the rest of his life.” Plaintiff’s attorney equated the sense of smell and taste to “windows to our memories…and soul.” He evaluated the seriousness of the injury by stating, “40% of the senses that God gave you [are] taken away.” The jury awarded a $5 million verdict in the case, finding defendant 93% responsible.
4. In a trial involving two doctors and the death of a cancer patient, defense counsel shared the story of how he determined which of his two children ate some freshly baked cupcakes. “I saw the crumbs on her face.” The story was an effective way of illustrating the primacy of direct versus circumstantial evidence, which was a critical point in the trial, and jurors cleared both doctors of liability. While presenting an illustration of direct versus circumstantial evidence, the underlying theme was “right versus wrong” – the need to rightly identify the party at fault.
In the examples mentioned above, the stories these attorneys told were rooted in something fundamental and universal which the jury was able to connect to on a deeper level, irrespective of their age, race, gender, economic status, or cultural background. Real-life anecdotes were used to connect to broad themes and values such as right versus wrong, ethical versus unethical, the value of one’s personal experiences, connection with loved ones, and the value of being healthy enough to experience life fully.
While plaintiffs’ attorneys have been tapping into the power of emotional storytelling and the sharing of personal anecdotes, for the most part, defense counsel have been passive passengers on this journey. Yet, this powerful arsenal of psychology is equally available to defense, and the psychological principle of emotional storytelling can be equally employed in favor of the defense.
 Mary Fellers v. Just People, Inc., No. 13EV016600 (Ga.State Ct. Jul. 9, 2014).
 Courtroom View Network, Michael Goldberg Closing on Fault Sets Up 7-Figure Wrongful Death Verdict, YouTube (July 17, 2021), https://www.youtube.com/watch?v=V4_eKPA2ZAo.
 Walden et al. v. Chrysler Group LLC, No. 12-cv-472, verdict returned (Ga. Super. Ct., Decatur County Apr. 2, 2015).
 Courtroom View Network, Jeb Butler Argues the Value of Life in $150M Jeep Fuel Tank Explosion Trial, YouTube (July 17, 2021), https://www.youtube.com/watch?v=aGNRxoQkNP0.
 Salvador Reyes Quezada v. GTG, LLC, No. A21A0439, 2021 WL 2327703 (Ga. Ct. App. 2021).
 Courtroom View Network, Brad Thomas Argues the Magnitude of Loss in TBI Trial, YouTube (July 21, 2021), https://www.youtube.com/watch?v=GXxJ2UhSBSE.
 Shlomo Moradov v. Brian Hill, M.D.,Urology Specialist Of Atlanta LLC,William Bottoms, M.D, Atlanta Radiology Consultants PC,Urological Ct Servies LLC, 14EV000806 (Ga. State Ct., Apr. 15, 2014). Courtroom View Network, Dan Huff Analogy Explains Direct v. Circumstantial Evidence in Wrongful Death, Med Mal Trial, YouTube (July 17, 2021), https://www.youtube.com/watch?v=d6cAvGM2C88
 Courtroom View Network, Dan Huff Analogy Explains Direct v. Circumstantial Evidence in Wrongful Death, Med Mal Trial, YouTube (July 17, 2021), https://www.youtube.com/watch?v=d6cAvGM2C88.