Texas defense lawyer Scott Self and jury consultants Dr. Jill Leibold and Dr. Nick Polavin join IMS Client Success Advisor and podcast host Adam Bloomberg for a special series on Safety-ism. In this episode, they discuss the evolution of “safety-ism” and its impact on jury trials and nuclear verdicts.

Transcript:

Hello, and welcome to the IMS Insights Podcast. I’m your host, Adam Bloomberg. Today we’re speaking with Texas defense lawyer Scott Self and jury consultants Dr. Jill Leibold and Dr. Nick Polavin about the evolution of “safety-ism” and its impact on jury trials and nuclear verdicts.

With nearly 50 total years of experience, our guests will share courtroom and research insights to explain why safety-ism is dangerous for defense counsel, and then provide strategies for identifying and speaking to safety-ist jurors in product liability and personal injury cases.

Adam Bloomberg:

Large verdicts are happening more commonly in venues across the United States. Today, we’re going to take a deep dive on a theory that is influencing jurors called “safety-ism,” and joining us today are Scott Self with Fee Smith in Dallas, TX, and Drs. Jill Leibold and Nick Polavin with IMS Consulting & Expert Services. Thank you all for being here.

Jill Leibold, PhD:

Thanks for having us.

Nick Polavin, PhD:

Thank you, Adam.

Scott Self, JD:

Glad to be with y’all.

Adam Bloomberg:

Jill, I’ll start with you. What is “safety-ism”? How did it come about, and maybe, what’s the difference between that and the reptile theory?

Jill Leibold, PhD:

You know, safety-ism is something that has been very slowly growing over the past few decades. And it’s something that we’re just seeing more and more of. Maybe it’s come to a head, perhaps in the past few years. But safety-ism is really a series of thought fallacies where jurors are thinking emotionally. And that’s how they were taught to think, that those emotions are valid instead of thinking with reasoning, for example. So, it’s a 360, all-encompassing way of being, way of walking through the world, and way of perceiving information. And that is different than the reptile theory. I think “reptile” is actually very important to understand, but it is a sliver of what we’re seeing with the safety-ism theory, because reptile is really just addressing fear-based reactions that people have, perhaps, in the moment. The safety-ism is really addressing how those feelings about safety have, from the start, really taught our jurors how they’re going to move their way through the world. And so, it’s their entire way of being, rather than just a moment in time, where a fear-based reaction is triggered.

Adam Bloomberg:

There was a book recently published about safety-ism called “The Coddling of the American Mind” by Greg Lukianoff and Jonathan Haidt. And in that book, different thought fallacies are discussed. Nick, can you describe the three main thought fallacies out there?

Nick Polavin, PhD:

So, the first fallacy that they talk about is essentially a no-risk mentality. They call it, “what doesn’t kill you makes you weaker.” And this is that people have become so accustomed to feeling safe in a variety of situations, because of technological advances, healthcare advances, that now any risk at all is viewed as a threat. And then the second fallacy is essentially “emotions come first in our thinking,” emotional reasoning. And this tells people that, you know, it’s okay to use your feelings in making your own decisions, and that rational thought can take a back seat to your gut instinct or whatever intuition you might be feeling. And then the third thought fallacy is essentially “tribalism”, and it’s in a world there is a group of good people and evil people. And if it’s a mentality of, you know, if you’re not with me, you’re against me.

And, you know, as I’ve talked to people about this book, I’ve gotten a little bit of pushback, you know, “Well, why would it be a fallacy to want to avoid risk or want to avoid discomfort?” And the reason why they frame these as thought fallacies is because these lines of thinking, it’s been shown that if you think in this way, it actually increases your anxiety. And some of the best techniques that you can use to reduce your own anxiety, about anything, are in contradiction to these. And it’s, you know, it’s called cognitive behavioral therapy. And it’s been around for decades. And it’s very effective at making people reduce their levels of anxiety or depression. You know, for example, if there is a 1% risk of something, people could be concerned about that, but cognitive behavioral therapy would say, well, you need to focus on the 99% chance that everything is going to be okay. Or, you know, if someone says something that you were offended by, rather than jumping to the conclusion, “Well, they must be a bad person I would never get along with,” cognitive behavioral therapy would advise you to think, “Well, maybe they just didn’t choose their words correctly.” And so, it’s these three lines of thinking that have become accepted in the face of, you know, how we should actually be dealing with any potential anxieties that we might come across.

Adam Bloomberg:

So, Scott, you and Jill first began talking about this idea of “safety-ism”. I think it was about a year ago at a presentation at a USLAW conference after you read the book, and the authors wrote about safety-ism in the education setting. I’m curious to know what are your experiences when talking to colleagues and other trial lawyers about the differences between this and the reptile theory?

Scott Self, JD:

I agree with what Jill said earlier that while they are related concepts, there are some really important differences that we need to keep in mind. I tend to think of “reptile” as a means of activating a certain response or eliciting a certain response from a person, in our setting a juror, whereas safety-ism seems more like the entire worldview, or at least a mindset, that a juror might bring into the box or into the panel when we’re trying to do jury selection. And so, while they are related, I think that safety-ism is, as Jill says, a broader concept to try to help us understand where these jurors are coming from, what kinds of biases they bring with them. And then what do we need to be on the lookout for to try to gauge those? And frankly, if we find people who are steeped in safety-ism, whether they appreciate it or not, those are probably people in the line of work that we are where we’re going to want to find a way to see if we can excuse those folks from our jury.

Adam Bloomberg:

So how have you seen this concept of safety-ism play out with some recent verdicts, say, in Texas and in the South?

Scott Self, JD:

Anybody that follows the news with these kinds of verdicts knows that that where I’m sitting right now, Dallas County, has been home to some sizable recent verdicts. Last year, there was a, there was a mid-nine-figure verdict on a case involving the death of a person who was killed by a technician that was in her home to deal with cable issues. And that resulted in a huge verdict. Here just in the last month, we had another, in this case, mid-to-high nine-figure verdict involving a crane collapse in the death of an individual. And, of course, we would say nothing to trivialize or even attempt to trivialize the loss of these people’s lives, but the numbers that are coming out from these verdicts are just so much larger than anything we’ve seen before, and so out of proportion from what we’ve typically thought of as reasonable values. You know there’s something going on there. There’s something lurking behind the scenes that is somehow empowering these jurors to arrive at these huge numbers. I have to believe that safety-ism and this idea of the “cult of risk,” as the authors like to call it, is definitely one of the reasons for that.

Adam Bloomberg: 

So, Jill, what changes are you seeing in juror behavior and beliefs?

Jill Leibold, PhD:

There are several, many aspects of changes that we’re seeing. As Scott mentioned, of course, we are seeing these very, very high verdicts. We’re seeing more anti-corporate attitudes and distrust of corporations and, to some extent, the government as well. Some of these jurors are reversing the burden of proof because of that. They want to have the defendant corporation prove that they didn’t do something wrong, that they were 100% safe in what they were doing. And they’re at times, I think, with these really high verdicts, using the damages amounts as a feeling of justice over the corporations, sending a message with that. And they also just have really excessive expectations, almost an entitlement to safety. You know, not accepting any risk. There’s no risk-benefit analysis in their view anymore. And they are also, there’s a lot more discord in the juries, and we’re seeing in mock trials even, when jurors go into deliberations, there’s an us versus them. If you don’t agree with me, you’re wrong. And there’s much less discourse between the two groups. And so, they’re not coming to a compromise like they used to because it’s now us versus them, good versus evil. And the corporation defendant typically ends up on the evil side.

Adam Bloomberg: Nick, anything to add to that?

Nick Polavin, PhD:

Jurors tend to be focusing more on possibilities now, rather than probabilities. You know, the first thought fallacy that any risk can be harmful? Well, everything comes with risks. A lot of medications, a lot of the products that we use. And so, if jurors come in with this idea that any risk is a threat, then they’re going to be more likely to find that the product is defective. You know, these jurors are saying that companies needed to warn about every potential risk, no matter how small. They’re reporting that they need to, no matter the cost, ensure there’s every safeguard to prevent any proper misuse. We’re also seeing people have more of what’s known as an “external locus of control,” and that’s where people feel like they’re not in control of their own outcomes, and that’s constantly a reliable predictor in civil litigation. And when people feel like they’re not in control, in lawsuits, they’re not going to look at how the user might have misused the product. They’re going to put the burden on the corporation for not foreseeing that misuse, for not warning about every single possibility.

And another change that I’ve seen that’s a little bit different is just the amount of damages for any mental health injuries or, you know, even pain and suffering more generally. With this rise of, you know, people being concerned about not only their physical well-being but their mental well-being, there are cases now where people are claiming brain fog, forgetfulness, anxiety and depression, where juries are awarding millions of dollars for that. And that’s just something that we haven’t seen in the past.

Adam Bloomberg:

Jill, this term “safety-ism” might be a new concept to some of our audience. But can you walk us through how we got here and how these perceptions have evolved over the decades?

Jill Leibold, PhD:

We really started looking at what kinds of changes happened in our society and how far back should we have seen the signs that things were changing, and we really believe that it could go as far back as 1979 with Three Mile Island. That was when we started really getting a catastrophe with a 24/7 news cycle. Everyone was watching it very, very carefully at all times, and it moved in there, from in the 1980s, there were some publications about a risk-free society. So now we’re starting to think about risk in a different way. And in the nineties, it evolved into risk being a feeling, right? And so how does that, how does a perceived risk make you feel? And this led to a lot more of the emotional thinking, “My emotions, those are there, so they must be true.”

And in the 2000s, it became emotional reasoning. I remember the books that came out about emotional reasoning, your emotional IQ. And so, emotions then became legitimate as a way to reason. And then in the 2010s, we started to see risk as avoidable, because now we can implement all of this new technology that wasn’t there in the past when we couldn’t implement it to keep ourselves safe. And so now everything is very technology-heavy, and it’s all done with the goal of increasing safety. And so all of these steps, it’s been decades building, and all of the people born during those time periods have grown up really just, that’s been their normal instead of a new normal. And so, they grew up really internalizing all of those particular fallacies of thinking.

Adam Bloomberg:

So, let me ask the obvious, Nick, maybe this is to you. How has the pandemic impacted this evolution of safety-ism? And we were talking earlier, I think you have a specific example of this.

Nick Polavin, PhD:

Yes. I wouldn’t necessarily say the pandemic changed a lot. This is something that, as Jill just explained, has been in the works for decades. But it certainly put a spotlight on this issue of people wanting to avoid all risks, of tribalism and us versus them, and no compromise between different lines of thinking. And one thing that was helpful during the pandemic is that we were able to visually see in jury selection, who those safety jurors were, the people who are showing up to courtrooms with two masks on and a face shield on and gloves. And, you know, we saw these people in our mock trials as well, and they were always the strongest plaintiff supporters.

Adam Bloomberg:

I know you’ve done a little research on this and how it’s currently influencing jurors’ ideas and thoughts about politics. And I know you brought a visual with you to explain this concept. Can you walk us through what you found?

Nick Polavin, PhD:

We found two separate effects here. We did a study on safety-ism that found, the results showed that people who have these heightened concerns about safety, also tend to have anxiety about many different things in their lives, many potential threats. And these people tend to be Democrats. They tend to come from the left side of the political spectrum. And, you know, that tended to be a plaintiff predictor all along. But what we’ve seen is it has emboldened these jurors to be even stronger plaintiff supporters than they have in the past. And then the second thing that we’ve seen recently is a rise in conspiracy thinking and, you know, with what happened in 2020, with COVID and the presidential election, there were conspiracy theories that were bought into, particularly by Republicans, some strong Republicans.

And we ran a separate study, and it showed that the belief in conspiracy theories was actually the strongest predictor of verdict outcome, such that people who bought into, we tested 11 different conspiracy theories, but people who bought into those were much more likely to side with the plaintiff. And, you know, this isn’t just a small amount of jurors we’re talking about; across the 11 conspiracy theories that we tested an average of 19.5% believed in any one of those conspiracy theories, so that’s a sizable portion of the jury pool if you’re going into jury selection. And so, between safety-ism emboldening jurors on the left and conspiracy-mindedness changing the attitudes of jurors on the far right, what we’ve seen is a shrinking of the pool of defense jurors going into jury selection. And ultimately now there is less room for error, you know, essentially no room for error in jury selection anymore.

Adam Bloomberg:

So, these two groups of jurors are bad for defendants, safety-ists and conspiracy-minded. How are these types of jurors similar and different?

Nick Polavin, PhD:

Yeah. So, in the studies, we included both safety-ism measures and conspiracy measures. And it was interesting. It was a very strong negative correlation between those responses. So that means that people who are very concerned with safety did not buy into conspiracy theories. And the people who bought into conspiracy theories are not that concerned with safety. And although interesting, it’s concerning that these are two very bad groups of jurors for defendants. And so, in voir dire, both groups of jurors will need to be identified. But interestingly, there is overlap between these two. And if you think back to the second and third thought fallacies that we talked about, the second being, emotions come first, you can rely on emotional reasoning. Both groups of jurors are doing that. They tend to dismiss, the conspiracy theorists tend to dismiss valid evidence and rely on what feels right to them. And with tribalism, with a worldview of us versus them, you know, they have really clung to their views and bought into conspiracies based on which politicians they support, what feels correct to them, rather than the data that is out there. Rather than what’s being reported in the media. And rather than, you know, how judges were ruling in lawsuits about the election.

Adam Bloomberg:

So, Jill, this research that you and Nick have been conducting is going to continue over, what, the next year or two? What are the next steps in that research?

Jill Leibold, PhD:

It’s twofold, really, the next steps. First of all, we have developed a safety-ism scale that we’re currently testing, and we are implementing that safety-ism scale at every mock trial that we conduct so that we can consolidate and aggregate the responses and correlate that to whether a juror voted for a plaintiff or defendant during those mock trials. So the goal is to really develop a solid instrument that we can then distribute in order to, and I know Scott will talk about this a little bit more, to implement in courtroom strategy. The second thing that we’re doing is, right now, implementing a phase two research project. And so, we have two different surveys out in the field collecting data currently. One is also validating and testing the safety-ism instrument that we created, as well as getting a better understanding of jurors’ perceptions of risk or risk avoidance and their willingness and ability to use reasoning over feelings. And we’ve implemented case scenarios, so we’re looking at two different types of litigation. One is an emotional injury by a user of social media. And the second case type that we’re using is about ill effects from being near pesticides. And so, we’re really trying to get a better handle on how safety-ism attitudes affects those two different types of litigations and how we can then come up with some strategies to counter the safety-ism effects.

Adam Bloomberg:

Scott, since these two groups of jurors are harmful to defendants, what does it mean for corporate defendants moving forward?

Scott Self, JD:

Well, I think that the effects that we see of safety-ism touch on our two biggest concerns in civil litigation like this. One is our liability. How do we defend ourselves? And then two, what are the kind of damages and exposure that we face in these cases? And I would say that what I see is the trends in safety-ism, and what concerns me about the jurors that we see in our courtrooms these days is one: safety-ism seems to involve a transfer of accountability, if you will, away from individuals. And in an attempt to put that on corporations at every opportunity. And that is something that we’ve got to work on, whether we’re trying to eliminate jurors that subscribe to safety-ism in jury voir dire, or whether that involves how we communicate to those safety-ist jurors who might, nonetheless, despite our best efforts, find their way on to our juries.

I think that’s one of the issues we’ve got to tackle. And that can be particularly important when I’m defending, for example, a manufacturer of a consumer product. And one of the crucial issues is how is that product used? How is it intended to be used? What are potential misuses of the product? We have to be concerned about a safety-ist juror or jury that might, in a way we think irrationally, transfer accountability from a person who makes bad decisions onto a corporation whom those jurors just expect to manage any and all risks associated with the product. Likewise, true for our clients who are in transportation, trucking, bussing, or retail operations. Any place where there’s a natural level of risk that we assume when we, for example, get on our public roadways, we’ve got to be able to understand how juries are going to allocate that and be really wary of those jurors who, because of safety-ism, somehow want to unfairly or irrationally allocate that risk, or that management of that risk, over to our clients.

Adam Bloomberg:

Nick, what are some immediate steps trial teams can take to address the current issues at hand?

Nick Polavin, PhD:

So, with these two groups of jurors who are particularly bad for defendants, you know, that all plays into voir dire and voir dire strategy, figuring out what are the best questions to ask to identify jurors on social media results. You know, finding out that someone is a registered Republican isn’t as helpful as knowing if they follow Trump versus if they follow, let’s say, Mitt Romney or Liz Cheney, someone more moderate. And then in voir dire with the safety-ism scale that Jill and I have created and are currently honing, we’re going to be able to take those questions that are most predictive and hopefully put them on jury questionnaires. And if not, we will certainly advise clients that these are the questions that need to be asked in order to figure out who these safety-ism jurors are. And we’ve done the same thing with the conspiracy-minded jurors. And, you know, you can’t ask a juror, “Do you believe in conspiracy theories?”, but you can certainly ask them about their trust in the EPA and FDA, their trust in science. And then, you know, from their social media or a questionnaire, you can get information about where they get their news from, their education, their job, and, you know, whether they’re someone who buys into fact-based information or emotion-based information.

But then secondly, you know with voir dire, with the pool of defense jurors being smaller than ever before, it’s important to practice. You know, even the most seasoned trial attorneys are only doing voir dire a few times a year and practicing with either mock jurors or even staff who you haven’t worked with, you know, a group of people who you don’t know and trying to figure out the best way for you to elicit information from them, the best way to phrase questions, to get the information you need and the best way to phrase follow up questions in order to get cause challenges, in order to rehabilitate jurors. Because every cause challenge you get and every juror you rehab will make a significant difference now. Another thing that can be done right away is witness prep. You know, we talked about how the safety-ist jurors believe in science so long as it feels right to them. And so medical experts, scientific experts need to come across as very credible in order for these jurors to believe in them.

And we’ve also, you know, tested some themes that can be used on jurors who buy into the safety-ism mentality. Because the interesting thing is that they really do believe in science and even despite some other background factors or characteristics they have that might make them lean plaintiff, we’ve had a few examples recently of jurors who are liberal, who have, who start with a negative opinion of the defendant, but ultimately are the strongest defense supporters because they so strongly believe in science. And so, if you can convince these jurors that you have the best science and the sciences on your side, that gives them a hill to fight on in deliberations. And so, some of these themes can be, you know, if there are multiple plaintiffs, this, you know, “correlation does not imply causation.” And the plaintiffs need to prove causation. Talking about this is about “facts, not feelings,” “probabilities, not possibilities.” And then one other way to give defense jurors something to fight for in deliberations is to talk about justice. That the defendant is here for justice as well. But that justice looks different here.

Adam Bloomberg:

Jill, what are some medium- and long-term recommendations?

Jill Leibold, PhD:

Well, there are several recommendations that we have, really looking to the future. Safety-ism isn’t going anywhere quickly, so we really need to plan for the future. And some of the things that we can do, one of the things that the plaintiffs’ bar is doing is filing a lot of MDLs and consolidated cases and to really get in early, understand who the riskiest plaintiffs are, and use actual research data for your bellwether selection. Know which are the riskiest plaintiffs, know which ones might be winnable, so that as you make these selections, we’re doing it with data behind it. One of the things that you’ll see over the course of consolidated cases or MDLs is that as soon as one of the juries come back with a verdict, they tend to get bigger and bigger because the billboards start coming out, the plaintiff billboards, and the media gets ahold of it one way or another. And jurors see that, and it sinks in. And so, one of the really important things is really being careful and strategic about the bellwether selections of the plaintiffs.

Another one is to file motions to try to get individual voir dire on certain issues. Perhaps if a juror has seen the media or read articles about any prior verdicts. Because we don’t want that information getting spread in open court to the other potential jurors in the jury pool. And so that’s an important one. If there is a juror who hasn’t heard or been affected by some of that plaintiff advertising, we want to keep them fresh.  Another one is motions for just a single plaintiff at one time. The more plaintiffs that are in a case, it gives it more power for the plaintiffs, because if, it’s where there’s smoke, there’s fire. And so motions to keep it to a single plaintiff at a time can also be very, very helpful. And trying to reduce time limits for trial and especially for voir dire. As you’ve heard, voir dire is very important in identifying the safety-ism jurors, as well as the conspiracy jurors, that are all going to work together against a corporate defendant.

I know that Nick had mentioned witness prep of key witnesses will be very important so that they’re prepared for the safety-ism questions, but it’s also about getting ahead of the game so that you’ve got, before litigation is filed, you’ve got and identified your good corporate representative and that the CEO is even prepared to talk about the policies, the research, and the plan for safety moving forward, as well as historically. And that can also include witness school. So, all the top people within that corporation can get witness training. So should litigation arise in the future, they’re prepared, and they know what to expect and what to look for.

Adam Bloomberg:

Scott, I’ve seen you do this with billboard attorneys in Dallas and Austin and Corpus Christi, I remember that one. What would your recommendations be?

Scott Self, JD:

Well, for starters, we’re talking about jury voir dire selection. I’m really looking forward to the kinds of help that we’re going to get from pros, like Jill and Nick in some questionnaires, because I think we as trial lawyers could particularly use help in crafting questions that we can use in voir dire that are that help us gauge jurors’ appetites for safety-ism. Where we’re used to focusing on maybe some case-specific issues and trying to get an idea for how juries might perceive our case, these kinds of questionnaires that are designed to measure and ferret out safety-ism could really help us. So, I’m looking forward to working with Jill and Nick to see what we can do with that.

I will tell you that when it comes to trial prep and then actually presenting our case, our themes to these jurors, that the book, “Coddling of the American Mind” by Lukianoff and Haidt, has been very impactful on me. I think a lot about the three bad ideas, the three thought fallacies, as Jill and Nick characterized them. I think about those and how I both prep my client’s witnesses and how I present my case to the jury. For example, that first bad idea is, is the idea that what doesn’t kill us makes us weaker, that people no longer have a tolerance for reasonable risk. And I think one of the things that we try to do with our witnesses in our presentation is to remind people about the reasonable risks that we all do undertake and that we accept. The greatest of which is probably getting in our vehicles and driving to and from school and work and other places every day. To remind people that life is risk, and that there are reasonable risks that we accept, and that we should be willing to accept from corporate defendants who are out trying to be good corporate citizens as well. So, helping the jury understand that there are acceptable levels of risk, and that in some cases risk is actually good, that it does make us better and make us stronger, that’s something that I try to find a way to work into my trial prep.

You know, the second idea is the idea of emotional reasoning. And I’ll echo what Jill said earlier, that we try to remind jurors whenever possible that their job, as stated in most pattern jury charges you’ll find in places like Texas, our courts tell our jurors that they’re supposed to decide cases not on bias, prejudice, sympathy, or feelings, emotions like that, but by credible evidence and using logic and reason. And so, I try to remind jurors of that in a very calm way throughout trial, including jury selection. And then I think it’s important to try to tell them when the other side is asking them to do something different. I think it’s worth calling that out. And when you see your opponent really trying to leverage something emotional, whether it’s fear or anger or resentment or some other type of emotion, to call that out and ask that jury to see it and understand it and set it aside and decide the case based on the factors that they should be deciding it on.

And then lastly, on the tribalism, us versus them, you know, that is a place where I think there’s some confluence with how we deal with “reptile” and how we deal with safety-ism, because I still think one of the best countermeasures, with respect to whether you call it “reptile” or safety-ism, is to humanize our clients, is to remind the jury that this is not a nameless, faceless corporation. This is a group of people. It’s a group of people who go to work every day with the same kinds of hopes and aspirations that we all have as citizens. These are our neighbors, people that we work with, go to school with, go to church with. And they’re there doing their job and trying to do the best that they can, and try to help diffuse some of that tribalism in that way. And as both Nick and Jill said, you know, with witness prep, that’s a big deal, is helping our witnesses remember that they’re not really talking to this lawyer on the other side of the table or the other side of the screen who’s trying to make their life miserable for a day, they’re talking to a group of six or eight or twelve citizens, just like them. And they need to know that our client’s witnesses are people who care about their jobs, care about doing things the right way, and ultimately care about the people around them. If we have juries thinking along those lines, then I think we’ve done a lot to defuse some of the evil that’s lurking out there with both “reptile” and safety-ism.

Adam Bloomberg:

Well, this has been a fascinating and very relevant topic. Thank you all for joining me today, and I look forward to following your research and gaining additional insights on how to defend cases in this safety-ism environment. Thank you very much.

Scott Self, JD:

Thank you.

Jill Leibold, PhD:

Thanks, Adam.

Nick Polavin, PhD:

Thank you, Adam.