As has been widely reported, it’s no secret that the number of actual jury trials have declined precipitously in recent years. Too much risk. Discovery costs–particularly those associated with electronic discovery–have made the pretrial process simply too expensive. And there is a reluctance by some to trust juries with what they believe are complicated issues. The result: more cases are settled, typically in mediation.

But here is the rub. Without trials-and enough trials to get a true idea of how juries will treat an issue—how do you determine an appropriate settlement value?  Historically, this value was derived from asking what a proverbial jury do with the issue at hand. Was there liability? How much would a jury think the damage and injuries are worth?


Last week, I discussed the value of more not less data to guide decision making. The same is true for jury verdicts. Without trials and data from actual trials, it gets harder and harder to come up with that valid value and prediction. And just like anything else, when we make predictions on bad, limited or old data, it often proves to be wrong. This is particularly true today when public and jurors attributes and beliefs can change and change quickly.


The Polaroid-Kodak Litigation is a case on point:  many years ago, there was belief that a jury would take a strict view of patents in assessing whether they had been infringed. If the alleged infringement was not precisely in line with the patent. It didn’t happen. This was based on data-trial results-that were several years old.


Edwin Land, the founder and CEO of Polaroid, the company that developed the instant camera, proved this wrong. Polaroid sued Kodak for violating its instant cameras patent. Through Land’s sheer determination and hardheadedness, he succeeded. (I cut my trial teeth representing people in the horse business known as “hard boots”. The moniker referred to their actual boots. But it could have also referred to their personalities: they weren’t afraid to have their disputes heard by a jury. Land, I think, was a hard boot).


Land’s saga and epic battle with Kodak is chronicled in a book entitled A Triumph of Genius by Ronald Fierstein. I wrote a lengthy post about the epic and lengthy litigation and the book several years ago. By taking this case to trial, Land and Polaroid established a new outer limit of possible risk in patent litigation. The verdict created a more realistic means of assessing exposure.


Elon Musk 


I thought about the Polaroid case over the weekend when I read about the Elon Musk‘s victory in a defamation case brought by Vernon Unsworth. (Musk is the head of Tesla and SpaceX).   Legal experts believe it was the first major defamation lawsuit brought by a private individual over remarks on Twitter to be decided by a jury.


Here’s what happened. Unsworth lead a team responsible for the famous rescue of 12 young cave explorers in Thailand in 2018. Musk and Unsworth exchanged unpleasantries after the rescue. Unsworth said in a CNN interview that a submersible drone Musk sent to the site was a “PR stunt”, and that Musk should “stick his submarine where it hurts”. A video clip of the interview went viral.  Musk responded with a series of tweets calling Unsworth, among other things,  a “pedo guy”.


Unsworth sued Musk in federal court in Los Angeles for $190 million for allegedly defaming him. Defamation requires an untrue statement that harms the reputation of another. The case pitted Unsworth, a 64-year-old financial adviser making about $33,000 a year against one of the richest men in the world. At the heart of the case was whether Musk’s “pedo guy” tweet could reasonably be constured as a statement of fact that Unsworth was a pedophile.


Musk argued the comment was nothing more than a trivial opinion—an insult provoked by Unsworth and hence not defamation. Musk claimed that Twitter is “where people engage in verbal combat” and that everyone views Twitter as a world of “unfiltered opinion”. Musk’s argument wasn’t, of course, that the pedo guy statement was true. His argument was that Twitter encourages bombastic insults and opinionated comment. Musk argued those who use social media, particularly Twitter, understood the wild and woolly nature of the platform. Twitter users, claimed Musk, wouldn’t necessarily think what Musk said was true and a defamation as much as it was an exaggerated opinion. No reasonable Twitter user, said Musk, would think the statement to be true. As a result, Unsworth was not damaged because—due to the nature of the media—no one believed the statement and it didn’t cause Unsworth any real harm.


Over last weekend we learned the result. The jury unanimously found for Musk. And it did so after deliberating only 45 minutes, hardly time to get comfortable, elect a foreperson, have lunch and start talking.  There wasn’t much dispute in the jury room.


Prevailing Jury Assumptions 


So, here you have Musk, a billionaire who no doubt could have settled with Unsworth and saved the time and disruption of a trial. I have little doubt there were those who probably cautioned Musk to do this. Indeed, the traditional bean counter view would be that a case like this isn’t worth the time, expense and risk to fight. Moreover, it’s gospel that a jury will more likely side with the little guy against the rich and famous. Standard wisdom would suggest a jury would see Musk as a spoiled billionaire. A billionaire who bullied a little guy, a little guy who by the way actually rescued the explorers and saved their lives. A jerk who called a hero one of the worst names you can think of: a pedophile.


For many, particularly those of us who grew up in a paper-analogue world, the scenario would seem to be an open and shut act of defamation.


For many, particularly those of us who grew up in a paper-analogue world, the scenario would seem to be an open and shut act of defamation. According to an Advisen newsletter, several lawyers who specialize in defamation were actually surprised at the outcome. They thought Unsworth had a strong case.


And that’s the significance of the verdict.  It’s now the lone star for what a jury might do and how a jury might look at social media and defamation. It’s a new data point for assessing these cases. It suggests that traditional views of what a jury to might do with a social media defamation case may not be what many thought.


Its always a mistake to assume that one trial verdict means something more than what it is. But its clear that this jury, composed of five women and three men, had the same view of Twitter as Musk: its not a place where traditional rules of print defamation necessarily apply.


This is why we need trials: to keep us all honest about what real people think about and how they view the world


This is why we need trials: to keep us all honest about what real people think about and how they view the world. Without trials, we are all trying to gaze into crystal balls without real data to go on. In today’s world, that can be dangerous.


When it comes to trials, maybe we need more hard boots and fewer bean counters.


Photo Attribution


Photo by The New York Public Library on Unsplash


Photo by Oziel Gómez on Unsplash


Photo by Sara Kurfeß on Unsplash