Defense frustration and disbelief have become the staple of post-pandemic mock trials, focus groups, and trial conclusions. Damages seem to be going up and jurors seem to hate large corporations, often ignoring or explaining away important facts which might help the corporate defendant in a case. These feelings are not unwarranted. After all, a November 2022 Pew Poll found that distrust of large corporations is one of the few things voters on both sides of the aisle seem to agree on. Conservative jurors used to be reliably pro-business and anti-lawsuit (or at least anti-nuclear verdict), but that is no longer the case, which may explain the inflationary trend in damage awards.
It is not that jurors dislike corporations and are incapable of finding in their favor in this day and age. We have worked on many cases for corporate defendants where we achieved defense verdicts which others did not think were likely or possible. Instead, jurors dislike corporations that fit the narrative trope of greedy executives who put profit before all else. They dislike the sense of indifference that they believe pervades corporate America. Because these tropes have become so engrained in our popular culture, jurors naturally look for cues in cases which tell them whether the corporate defendant in question is just another greedy and indifferent corporation. This is their expectation, so they are looking for things to confirm their suspicions.
Consequently, in this new era of unprecedented corporate distrust, the key is to avoid those cues which tell jurors their suspicions are correct. In this month’s column, let’s take a look at some of the common cues. Here are six ways defense attorneys and corporate clients reinforce negative stereotypes about corporate defendants at trial, increasing the likelihood that jurors cannot listen to the defense’s evidence and testimony with open ears.
1. Immediate defensiveness. Too many defense attorneys begin their opening statements with stale, unimpactful, and defensive statements about how there are two sides to every story and how it is important to wait before drawing conclusions. Setting aside the fact that these tried and failed introductions are incredibly boring for jurors, they only serve to reinforce the adverse narrative by functionally placing the plaintiff theory at the center of the discussion. Research on battling disinformation has repeatedly shown that the key to overcoming disinformation is putting forth an alternative affirmative story of what has happened rather than starting with the disinformation and trying to disprove it. Consequently, the defense should tell jurors there is only one side to the story and not ask them to wait to understand it. The first sentence of every defense opening should be a strong statement about the core defense theory. Let the defense theory clearly establish the “other side of the story,” rather than stating what jurors already know and believe.
2. Relying on obscure technicalities. The obscure technicality or “fine print” is the prototypical hallmark of how people believe large corporations take advantage of Americans. Then, in the 1990s, Bill Clinton punctuated the absurdity of meaningless technical arguments with his questions about the meaning of “is.” This does not mean the defense can’t make technical arguments. Some can be very effective when their meaning and importance are obvious to jurors. The key is that their meaning and importance are obvious and not obscure to the average individual.
3. Reaching. Attacks or criticisms of sympathetic plaintiffs are risky business. Some research suggests that the easiest way for jurors to cope with stories of traumatic, unexpected events (i.e., listening to a case about a deadly car crash) is to blame the victim by highlighting choices they made that led to the accident — the very choices that the juror believes they would never make. It sounds harsh, but the psychology allows jurors to differentiate themselves from the victim, thus convincing themselves they will not suffer a similar fate. However, we often find corporate defendants reaching, looking for any dirt they can find on the plaintiff and desperately trying to connect it to the case in some fashion. Just recently, we watched a defense attorney in opening statement call into question whether the accident actually caused the plaintiff’s traumatic brain injury since the plaintiff had a history of anxiety and depression in the months leading up to the accident. The argument made no sense as the looks on the jurors’ faces confirmed. In another case, we watched a corporate defendant blame the plaintiffs for failure to wear seatbelts even though their vehicle was smashed to an unrecognizable state when it was struck by a tractor trailer from behind at 60 mph and crushed into the back of another tractor trailer immediately in front of them. Seatbelts would have made no difference, yet the defense made that argument, which only triggered greater juror anger. When a corporate defendant reaches in its criticisms of the plaintiff and/or their arguments, it reeks of desperation and reinforces the stereotype of a corporate defendant saying anything and everything to avoid accountability.
4. Arbitrary alternative damage figures. Anchors are important and effective when it comes to tackling the issue of damages. However, too many defense attorneys propose alternative damage numbers without providing a clear rationale for those alternative numbers. When the defense’s alternative damage numbers are perceived as arbitrary, jurors are quick to view them as nothing more than the typical effort by corporate defendants to pay as little as possible in a lawsuit. Instead, alternative damage suggestions should be thoughtful. One simple way to accomplish this is to frame the damages question as, “How can money help the plaintiffs?” From there, the defense should highlight specific ways in which the money can help the plaintiffs become whole again. Several categories can be helpful. For example, an amount for ten years of weekly therapy, an additional amount for twenty years of supportive therapy, and the cost of the plaintiff’s most meaningful hobby for the next 25 years.
5. Feigned sympathy. Most cases involving tragedies such as deaths or severe injuries lead defense attorneys to acknowledge the tragedy and express sympathy for the victims in opening statement. Such expressions are sensible but can be quickly undercut by two common errors. First, if the defense attorney is going to express sympathy for the tragedy, the expression needs to come across as genuine, which sounds much easier than it actually is. For these expressions to seem genuine to jurors, the tone, language, and general comportment of the attorney need to match the expression. This requires communication skills that not every attorney has, and if jurors feel the attorney’s comportment does not match the message, they will be quick to conclude the expression of sympathy is disingenuous, which could fuel even more anger and frustration towards the corporate defendant. The second error is when defense attorneys express sympathy for the tragedy and immediately follow the expression with an effort to blame the plaintiff for their own injuries or lodge some other attack. Often, it is just a poorly planned transition in the presentation, but the consequences are significant.
6. Rigid, old, non-diverse attorneys. Let’s be clear. The point here is not that older, white, male attorneys should not represent corporate defendants. It is not even intended to suggest they should not be members of the trial team. Instead, it is merely a recognition that most jurors associate this demographic with their negative images of the cold-hearted and untrustworthy American boardroom. There are plenty of reasons for corporate defendants to diversify their trial team and this is just one more. In this day and age, white males should not be the only face of the corporate defendant at trial when it comes to those who are playing meaningful roles on the trial team in the jurors’ eyes.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
