3 Keys to Gaining the Jury's Trust - Part 2 of 2
Turning Post-Pandemic Declines in Corporate Perceptions into a Tactical Advantage
In part one of this topic, we discussed the research that demonstrates the challenges that corporations face of decreased favorability among the voting public in practically every major industry and how that perception can lead to anti-corporate sentiment by jurors. Though these perspectives can increase the difficulty of seating a pro-business jury, there are steps defense counsel can take to identify and eliminate the most dangerous anti-corporate, victim-oriented jurors in the first place. In the first part, we described the first of three opportunities for defense counsel can take by emphasizing logical, scientific decision-making. In the final part of this article, we cover two additional opportunities: accepting responsibility and evaluating and preparing witnesses.
2. Accept responsibility
Our interviews with both mock and actual jurors reveal that a top explanation for an unexpected plaintiff verdict or inflated (i.e. nuclear) damage award is, “The defendant(s) didn’t take any responsibility.” We agree with trial lawyer Bob Tyson, who advised defendants to “accept responsibility in every case.” This does not necessarily mean stipulating to liability, although doing so is warranted in many cases and can be a critical strategic move. An appropriately designed mock trial can provide answers for counsel and clients wishing to test the effects of stipulating to liability. For example, a mock jury panel can be split with one subsample exposed to presentations in which the defense admits liability, and another subsample exposed to presentations in which the defense disputes liability.
Depending on the venue and case facts, accepting some percentage of responsibility can be a wise decision even when (mostly) disputing liability. This is particularly true in venues with modified comparative fault. For example, accepting 10-15% of the fault may be enough to gain trust and quell motivations to punish in some cases. Again, pre-trial research projects such as appropriately designed focus groups and mock trials can test the effects of acceptance of fault so that the defense can make informed decisions about whether to accept some fault, and if so what percentage to accept.
Of course, in many cases the defense will want to strongly dispute liability and does not believe that any acceptance of responsibility is warranted. There are still many opportunities to accept responsibility in such cases. If there are “bad facts” – and every case has them – the defense should embrace these facts and then either explain them at trial or accept responsibility for the facts while showing the jury that such facts are not a factor in negligence or causation. The defense also can accept responsibility for its policies and practices – e.g., we are responsible for requiring thorough hazard assessments; we are responsible for employees’ (specific) training; we are responsible for monitoring employees’ driving records and real-time violation alerts; we are responsible for requiring employees to document (fill in the blank). Such responsibilities will vary across cases but should be acknowledged to help demonstrate the efforts and complexities involved in running a business of any size.
3. Evaluate and prepare witnesses
Corporate representatives and employees are best positioned to tell the “good company story” and increase jurors’ trust in the defendant(s). A key fact witness who is relatable, presents and communicates well, and effectively navigates questioning from opposing counsel can dramatically shift jurors’ existing perceptions and motivations in the right direction, leading to a favorable defense outcome. However, many jurors inherently distrust corporate representatives, thinking “Of course they are going to tell a good company story…that’s their job.” They also question the motivations of individual defendants, often assuming that “they have a lot to lose.”
Hence, the selection of who serves as the corporate representative is critical. The corporate representative has a tremendous weight on their shoulders and their performance at deposition and/or trial is vital as our research has shown that deposition testimony is the decisive measure of damages in a case. Selection of a corporate representative shouldn’t simply be based on their level of knowledge about company operations. It is essential that corporate representative candidates be assessed on their ability to withstand challenging questioning and be fully trained to identify and avoid opposing counsel’s tricks and traps. A neurocognitive training program, conducted either virtually or in-person, is crucial to achieve confident results.
Most adults in the U.S. have become more comfortable with virtual solutions in the midst and wake of the coronavirus; this is true among older adults as well as those who would label themselves as “technologically challenged.” Increased comfort and use of virtual communication presents tremendous opportunities for witness evaluation and preparation. Although in-person witness evaluation and training are always highly beneficial, in many instances initial witness assessments and skills trainings can be conducted virtually. This eliminates barriers to travel and time constraints. In addition, virtual trainings can be split into shorter segments, avoiding witness stress and fatigue. For some witnesses, the entire training can be effectively conducted virtually; for others, a hybrid approach is best. For example, a witness may participate in an initial assessment and skills training virtually, followed by an in-person follow-up refresher with mock questioning.
Juror witness evaluation studies also can be conducted virtually with reliable results. These can be especially helpful in selecting a corporate representative or a key expert witness. For instance, counsel may record mock questioning sessions with two or more potential corporate representatives, and mock jurors participating virtually can provide their reactions and feedback for how witnesses can improve. Such studies can certainly also be conducted in person, but virtual options are available to maximize efficiency and reach.
Though decreased favorability ratings about most industries and institutions in the wake of COVID-19 present a threat to defendants in civil suits, meeting this challenge with informed preparation and legal strategy can help restore jurors’ faith in corporate defendants. By seizing upon the current positive regard for logical and scientific thinking, counsel may nudge jurors to rely less on emotional decision-making in civil suits. Accepting responsibility sincerely and specifically may also renew trust in corporations. Finally, the compelling nature of an able witness telling a good company story cannot be overstated. Taken together, these opportunities can allow defense counsel to turn post-pandemic declines in corporate perceptions into a tactical advantage.
Factors to Consider in Healthcare-Related Litigation