Successful trial defense increasingly requires empathy, alignment with juror values and persuasive storytelling. (Credit: Lightfield Studios/Adobe Stock)
Litigation is an inherent risk of doing business.
But in today’s litigious environment, the stakes have risen to unprecedented levels. Lawsuits now represent not only a financial threat to companies and their insurers but also a reputational, operational and sometimes existential one — particularly when nuclear verdicts enter the picture.
Nuclear verdicts — or jury awards exceeding $10 million — have become more frequent, widespread and devastating over the last decade and, in particular, the past 5 years. These cases are increasingly driven by what experts call social inflation, a mix of societal, legal and cultural factors that have escalated jury awards beyond the rate of economic inflation.
Swiss Re reports that social inflation in the U.S. grew at an average rate of 5.4% between 2017 and 2022 — outpacing economic inflation, which averaged 3.7% during the same period. Historically, social inflation stemmed from changes in tort law and expanded access to class-action and mass tort litigation. However, in recent years, it has been driven more by a surge in single-claimant cases, resulting in disproportionately large awards, the firm said.
The consequences are far-reaching, from increased insurance premiums to stifled business investment and strained operational resources.
“There’s a vast amount of uncertainty and a lack of ability to plan and forecast the cost of litigation, particularly for companies with large or repeat dockets,” Ed Casmere, co-head of Litigation and Disputes at Norton Rose Fulbright US LLP, said in a recent interview. “From a corporate and insurer perspective, it diverts limited resources and undermines a company’s ability to invest in its core mission.”
What’s Driving Nuclear Verdicts?
Casmere identifies four key forces behind the rise of nuclear verdicts:
- A sophisticated plaintiffs’ bar: Plaintiffs’ attorneys have become more strategic, leveraging jury research and focus groups to figure out what juries want to hear and tailoring their cases accordingly. “It’s a huge mistake not to give the plaintiffs’ bar credit,” Casmere said.
- Anti-corporate sentiment: Post-COVID, there’s been a notable uptick in distrust toward corporations and institutions. Younger jurors — particularly Millennials and Gen Z who are making up an increasing proportion of the jury pool — tend to be more skeptical of corporate motives, more supportive of plaintiffs, and more attuned to ethical issues, according to a Marathon Strategies study on nuclear verdicts.
- Misaligned defense strategies: Defendants often miscalculate the factors that resonate with juries. “It’s rarely a disagreement about the facts,” Casmere noted. “It’s more about how you value those facts and assess the risk.”
- Normalization of large dollar figures: In an age of billion-dollar sports contracts and viral social media wealth, juries have become desensitized to large financial awards. Media coverage of massive verdicts has also raised expectations, further distorting perceptions of what constitutes fair compensation.
Adapting defense strategies
Despite the rise in nuclear verdicts, hope remains for defendants who are willing to adapt. Successful trial defense increasingly requires empathy, alignment with juror values and persuasive storytelling, Casmere said.
“Defendants are still winning lots of cases and winning cases that people thought were unwinnable,” the attorney added. “Those people who are winning those cases are the ones who are preparing properly and adjusting to these new dynamics.”
Winning strategies for defendants include conducting their own focus groups, understanding local jury sentiments, and aligning trial themes with community values. Too often, there is a disconnect between what lawyers deem important and what jurors actually care about, said Casmere.
Breaking Verdict Records
The nuclear verdict trend reached new heights in 2024. According to Marathon Strategies, 135 lawsuits resulted in verdicts exceeding $10 million — a 52% increase from 2023. Even more striking, the total value of these awards soared to $31.3 billion, more than doubling the previous year’s total.
So-called "thermonuclear verdicts" — those exceeding $100 million — also rose sharply to 49 cases in 2024, up from 27 in 2023. Five of these surpassed the $1 billion threshold. The median verdict increased to $51 million, compared to $44 million in 2023 and just $21 million in 2020, the Marathon Strategies report said.
No industry is safe. Nuclear verdicts in 2024 spanned 55 industries and occurred in 34 states and 77 courts. Last year’s largest award was a $5.23 billion verdict against AffinityLifestyles.com, maker of Real Water, for liver damage linked to hydrazine contamination. The jury awarded $230 million in compensatory damages and $5 billion in punitive damages.
While product liability remains the most frequent source of nuclear verdicts ($13.7 billion in 2024), other categories are rapidly catching up. They include intellectual property, trade secrets, antitrust and labor & employment.
Notably, noneconomic damages — such as pain and suffering — often exceed both economic and punitive damages combined, suggesting jurors are heavily influenced by emotional storytelling and perceived moral wrongdoing.
What lies ahead
Casmere warns that any company can become vulnerable when there’s a perceived power imbalance — whether between an individual and a corporation, or between a small company and a larger competitor.
Social inflation shows no signs of slowing. While economic inflation has eased, Swiss Re forecasts that litigation-driven costs will soon outweigh the earnings benefits of higher interest rates in casualty insurance lines.
Although some states, like Florida, have enacted tort reforms that have slowed the pace of nuclear verdicts, Casmere urges defendants not to rely on regulatory fixes.
“I don't think you can rely on some edict or some regulation or reform to come and save defendants from these types of verdicts,” Casmere said. “Defendants need to listen and react to the messages that jurors and society are sending and need to elevate their level of practice and trial presentation to meet those challenges head on and present powerful, persuasive and affirmative cases that meet jurors' expectations and values. They've got to go on and put on their case and convince jurors why they should win.”
Kristen Smithberg is a freelance journalist and editor based in Colorado.
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