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Product Liability Litigation: What does safety really mean to jurors? 0

Courtroom Sciences, Inc. Courtroom Sciences, Inc.
info@courtroomsciences.com
07 August 2014

In order to mount an effective defense strategy in product liability litigation, it is important to understand why it is that jurors notoriously hold corporate defendants to unreasonable and sometimes impossible safety standards.  Jury research sheds light on the topic and has consistently shown that perceived deficits in safety is one of the most influential and frequently repeated themes jurors rely on as a moral justification to support a plaintiff’s verdict and high damages.  This is particularly true in product liability litigation because the jurors, as consumers of products, can typically identify with the injured party and they want to believe they and their loved ones are going to be safe.  Obvious as this may seem, in the minds of jurors, in the context of litigation, “safety” goes much deeper than what one might expect and it starts with their beliefs and perceptions about corporations. 

Jurors’ Perceptions of Corporations

Most jurors do not view corporations as a collection of normal, everyday, imperfect, men and women doing the best jobs they can employed as a group within a corporation.  This is especially true in the context of the courtroom, when the first half of a lawsuit is filled with everything the greedy corporate defendant did to endanger the plaintiff specifically and the public generally.  Jurors recognize that as consumers they have no choice but to trust their safety and well-being with corporate decision makers, which causes them to feel vulnerable, powerless, and at the mercy of Corporate America.  From this perspective, jurors see corporations as single monolithic entities of great wealth, knowledge, history, power, and influence with seeming unlimited resources.  But it goes even further than that.  In jurors’ minds, corporations often take on qualities of omniscience and omnipotence, which elevates the moral, ethical, and legal duties of corporations from “reasonable” standards to standards that are impossible and unrealistic such as “exceptional” or “perfection.” 

The following actual quotes from recent product liability mock trial deliberations illustrate juror thinking in terms of corporate omniscience and omnipotence:

Omniscience“Safety, that’s your number one priority. They should have thought outside the box, and you have to be innovative about safety procedures to prevent anything from happening… They should have taken into consideration anything that could happen.”

Omnipotent“And the company didn’t do anything to ensure that their customers had read and understood that they were to install a cage or use the cable, or anything. They didn’t do anything except put it in a manual, and that’s it. As far as I was concerned, that’s not good enough. That wasn’t at all good enough. They need to do something else and then make sure that whoever they are selling the product to is following or doing something or at least agrees to do something."

It is in this context that juror expectations of product safety can take on seemingly unreasonable characteristics and plaintiff’s attorneys can achieve juror acceptance of propositions such as, “products should be as safe as possible,” “products testing should be exhaustive,” “warning labels should warn of all possible dangers,” “product manuals should warn against all possible misuse of a product,” and “products should be 100% safe.”  Also, jurors will believe there was “more” a corporate defendant could have done to make its product safer or to protect the public from danger and harm – “one more word on the warning label” “one more meeting with the end user,” “one discussion with distributers,” “one more safety mechanism,” “one more redundancy,” “one more test,” and anything less than “the safest choice” by a corporate defendant is by definition negligence and potentially reckless. 

With this understanding of what safety can mean to jurors, here are a few of the strategies product liability defendants must not forget:

  • Safety should be a key theme that permeates the defense case. 

  • Defense witnesses must undergo cognitive and emotional deposition training to teach them how to avoid getting trapped into accepting and adopting unrealistic, unreasonable, and impossible safety rules propositions.

  • Defense witnesses must be prepared to frame their deposition and trial testimony with safety as a key feature -- all witnesses must be consistent.

  • Mock jury research is the best way to learn how jurors will react to case-specific safety issues.

  • Voir Dire and jury selection strategies must be designed to uncover potential jurors in the venire who are prone to believing that corporations are omnipotent and omniscient and who will expect corporations to meet impossible and unrealistic safety standards.


Testing Before Testifying: Keeping your good witness from going bad0

23 July 2014

Your key witness has just finished their deposition. They were combative, defensive, and unlikeable. Worst of all their testimony was off message and damaging. They did great in the prep sessions and you were sure they would do well in the deposition too. But now your case is in a place you had not counted on. It’s a disaster.

Unexpected testimony can be catastrophic in litigation. Bad depositions can make small cases large. Bad trial testimony can lead to inequitable settlements, baseless awards, and at times, damaging headlines.

WHY DO GOOD WITNESSES GO BAD?

Witnesses unexpectedly go bad when they begin their testimony with unrealistic expectations and discover while under oath that they lack the skills necessary to maintain control under the pressures of real testimony. It is one thing for the witness to do well in preparatory sessions where they are not on the record and can call for a timeout or a do-over; there is no judge, no jury, no opposing counsel, and no sworn oath to maintain. But what happens to the same witness if they simply cannot stand up to opposing counsel? The witness becomes anxious, confused, agitated, and may even outright panic. When stress levels get high enough, it can even trigger the “fight or flight” response, leading the witness to either acquiesce to any assertion (e.g. flight mode) or become openly combative (e.g. fight mode).

PREPARATION IS NOT TRAINING

Good witness testimony takes into consideration the broader context of the case narrative, themes, and key facts and issues. As such, witnesses must be taught about the case before they can practice testifying. There is no replacement for engaging in a thorough case review, discussing the rules of testimony, ensuring the witness understands the case themes, the record, and their talking points, and of course addressing any specific or personal concerns the witness may have.

Witnesses must also practice mock Q&A and receive timely feedback to develop the basic skills needed to testify. A skilled witness is one demonstrates the ability to move beyond recitation and spin control, and can consistently listen closely, consider carefully, and deliver their answer in a manner that conveys confidence and inspires trust.

Sure, they did well in your conference room, but how will they do in the courtroom?

TRAINING IS NOT TESTING

Once you conclude your witness has learned what they need to know, and has acquired the necessary skills, it remains to be seen whether they can they perform under real pressure, or if they are still at risk for derailing.

Predicting how a witness will do under oath requires testing them under conditions that simulate future performance conditions as realistically as possible. This means conducting a mock examination in a setting which not only looks and feels realistic, but also creates as many of the same demands, expectations, limitations, and pressures as possible.

Many People Fear Public Speaking More Than Death

There is a public speaking aspect to testifying that is lacking in standard preparation sessions. For a test session to be a realistic simulation, the witness needs to feel the pressure of performing in front of strangers. Counsel can bring in strangers to observe. These observers need not be familiar with the case, nor do they need to provide feedback. What is important is that they not be introduced to the witness, and that their role and purpose for being present remain somewhat a mystery. The less the witness knows of these strangers’ backgrounds and role as observers, the more they will begin to feel a level of performance demand similar to actual testimony.

Witnesses Have Not Built Rapport with Opposing Counsel

In real testimony, the witness is being examined by a stranger. The lack of rapport creates an additional challenge for the witness that goes beyond their experiences answering mock questions from a familiar person. We recommend that counsel arrange for a colleague (preferably one whom the witness does not know) to step in and fulfill the role of examining counsel for the testing phase. As with the unfamiliar observers mentioned above, very little, if any, introduction should be made.

Under Oath There are No Timeouts or Do-Overs

Finally, actual testimony carries with it very real limitations and obligations enforced by the court. The witness is under oath to tell the truth and their responses are recorded. The witness cannot ask their own questions, or seek help from their counsel. In the testing session, counsel should set firm ground rules that there are no timeouts to discuss concepts, no note taking or note reading, and the session will be videotaped and the witness will be expected to explain and justify any unexpected answers following the test. In combination, these measures serve to create realistic performance pressures because they instill a desire in the witness to “get it right.”

CONCLUSION

It is too often a surprise who does well and who collapses under oath. It is our experience that much of the uncertainty surrounding witness testimony both in deposition and on the stand is avoidable.

Witnesses need help acquiring both the knowledge and the skills to be able to testify well, and so there needs to be time spent on preparation and also on skills training. But witnesses also need to have realistic expectations, and there is no substitute for being challenged to perform within as realistic a setting as possible. Yes, it takes time. No, it is not easy. But it will be worth it if afterward the witness says, “I felt like I had seen it all before and knew exactly what to do.”


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