Combating Anti-Corporate Bias In Court

Douglas Dalgleish
June 5, 2008 — 924 views  
Enron. WorldCom. Vioxx. Kenneth Lay. Bernie Ebbers. Dennis Kozloski. Document shredding. Underfunded pension plans.  This succession of corporate scandals, coupled with layoffs, negative publicity regarding executive compensation and a parade of CEO indictments, has created an unprecedented level of juror hostility toward our large corporate clients.  A few statistics from recent studies tell the tale:

            ∙76% are angry with corporate America
            ∙85% believe corporations hide the truth about the dangers of their products
            ∙78% think executives will destroy evidence to avoid responsibility
            ∙76% believe the way senior executives are paid promotes corruption

The cumulative effect of these attitudes poses a risk of substantial exposure any time our business clients are on trial, especially if the factual scenario lends itself to a “David v. Goliath” motif by the plaintiff. 

Anti-corporate bias is nothing new.  However, in times past standard trial doctrine suggested such hostility could be reduced by picking jurors who fit certain sterotypical profiles.  Now, studies suggest this bias transcends demography, employment experience or socioeconomic status. 

Whenever possible, we work to dispose of cases before they reach a jury.  Some disputes, however, cannot be resolved, and trial is inevitable.  In those cases, trial preparation should include consideration of the following approaches:

Credibility and Fairness
Although some clients are initially tempted to hire a trial attorney who is a snarling “pit bull,” experience teaches that invariably such an approach backfires in court, particularly in emotional, high-stakes cases. Bullying witnesses, overly aggressive cross-examination or other tactics that are perceived as heavy-handed will only corroborate a juror’s bias that big companies think they can get away with anything.  In a high-exposure case, having the experience to avoid missteps, and employing a calm, credible demeanor, go a long way.

Utilize Pretrial and Other Procedural Tools to Narrow the Field of Battle
Aggressive use of pretrial motions can force the court to make rulings, and thus limit the number of issues that will reach the jury. We work to separate liability, damage and punitive damage issues into different jury phases whenever possible.

Deflate Emotional Energy
Skilled trial attorneys tell stories and utilize broad themes. Plaintiff's lawyers do this so the jury feels “empowered” to render a verdict of sweeping proportions. Particularly in punitive damage cases, plaintiff's counsel will do everything possible to incite passion and generate emotional energy during trial. Juries feed on this emotion and, once riled emotionally, they can quickly spin out of control and render catastrophic verdicts. We work to deflate this emotion, avoid rising to the bait (e.g., responding to every wild assertion made even if it detracts from our case theme), and try to keep the jury focused on what it is they are being asked to do: decide the facts of this case, not render some abstract message to society. An understated style, coupled with thorough preparation and demonstrable command of the facts, can often win over even the most hardened juror.

Separate the Specific Client from General Anti-Corporate Biases, Which May be Impregnable
Many jurors believe corporations act principally only for their own profit. In the time allowed for trial, it would be futile to try to rebut this general notion. Rather than trying to dissuade jurors from such deeply held generalities, we work to distinguish our clients from the stereotypes reported in the news. Most jurors are receptive to the reminder that whatever general notions of corporate conduct they may harbor, they are tasked with deciding what happened in this particular case.

Humanize the Corporate Client
Traditional trial practice dictates telling the jury about the good public and civic acts that Company X has performed in the community. Although such approach may be useful, it is easily overplayed; most jurors expect corporations to benefit their community. We work hard to put a human face on our clients. This process can involve having key company employees attend the jury selection process, and introducing those people to the jury before the trial ever starts. We want jurors to empathize with the real people who made the real decisions at issue in the case. It is easy for jurors to unload on a faceless mega-corporation; it is much harder to condemn the conduct of real (hopefully likable) people who are sitting face to face with the jurors.

It may be many years before juror attitudes toward large companies change.  We look forward to working with our clients to weather this storm and present winning trial strategies in difficult times.

Douglas Dalgleish

Lathrop & Gage L.C.