X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
‘That . . . company, I don’t like them. They are not 100% on the up and up. They seem morally and ethically corrupt. They knew they had a loophole and milked it for all it was worth and got all that money. Now I guess we have to talk about whether or not they broke the law. Who votes yes?”-Mock Juror, 2006. While the 2002 Enron collapse and the epidemic of corporate scandals that followed may have faded from the public’s consciousness, jurors still voice distrust of big companies. Measured in national surveys and mock trials, citizens like the one quoted above, who participated in a mock trial in Denver last summer, fit a variety of litigation fact patterns into simple narratives of corporate greed. Juror distrust of corporations and their executives is well-known. This bias follows corporations into the courtroom whether as plaintiff or defendant. Less well understood are the different forms that this bias may take and the ways it shapes public perceptions of corporations in the legal system. Rather than take the form of a single, monolithic attitude, bias against big corporations can take several forms, playing different roles in the way jurors view corporate litigants. In assessing potential jurors, it is too easy to treat attitudes as simple and unwavering traits-to believe, for example, that jurors simply distrust big corporations. That’s true enough, but research and experience with juries tell a more nuanced story. While distrust of corporations is indeed common, the reasons for, and manifestations of, it are not uniform. Advances in our understanding of jury decision-making make it clear that persuasion must happen simultaneously with numerous types of jurors carrying different types of anti-corporate biases. Anti-corporate individualists, who distrust a corporation’s level of power and control, will not share the same views as anti-corporate environmentalists, who disparage the side effects of some forms of corporate behavior. Anti-corporate moralists, who focus on corporate dishonesty above all, will not always agree with anti-corporate populists, who value the common person and draw sharp distinctions between themselves and elite executives. Anti-corporate egalitarians, who inherently mistrust profit itself and resulting concentrations of wealth, differ from anti-corporate nationalists, who fear the transnational influence of corporations on so many facets of life. There even exist anti-corporate capitalists, who are critical of modern corporations precisely because of the high standards they impose for the responsibility of corporations in a self-policing economic system. Bearing in mind these distinctions and many others, it pays to know why a potential juror may dislike a big company, in order to know whether that juror should serve and, if the juror serves, how he or she might be persuaded. While the analysis of all the forms that anti-corporate bias might take is an ongoing focus of jury research, the focus here is on three specific types of anti-corporate jurors: anti-corporate moralists (focusing on corporate dishonesty), anti-corporate individualists (critical of corporate power) and anti-corporate egalitarians (distrustful of corporate profit). While these attitudes are not mutually exclusive and may even exist in the same juror, they still represent independent dimensions of a juror’s attitude. The moralists Anti-corporate moralists presume that corporations are riddled with dishonesty and deception and view these as typical corporate traits. As one mock juror noted of the behavior at issue during deliberations in the Denver mock trial noted above, “Maybe a little shifty, but that’s to be expected of big business.” Jurors in this and many other mock jury research projects explicitly compared the defendant companies’ actions to the 2002 Enron scandal: “How do you know they’re not hiding something, too?” This suspicion places a high initial burden on corporate parties to acknowledge jurors’ starting presumptions and build the best argument possible that the company in a particular case acted not just reasonably or legally, but ethically and responsibly as well. This is easier said than done. Post-Enron survey research over the past four years confirms that jurors believe that corporate dishonesty is pervasive. The last two years’ findings show that 90% of potential jurors agreed that executives often try to cover up the harm they do. Persuasion Strategies, “Mocking Corporate America: The State of Anti-Corporate Bias and the State of the Art Mock Trial,” Inside Counsel (September 2006).
MODERN JURY Nuclear win was years in the making. It really does pay to make a good first impression with jurors. Reason is nice, but subconscious cues often decide cases. Spotting, and winning over, jurors with axes to grind.

Identifying the anti-corporate moralist in voir dire can be tricky. When asked directly, the typical juror will solemnly promise that he or she can follow the law rather than his or her own personal moral code. It remains critical, however, that the attorney targets those who would still implicitly apply an elevated ethical standard against corporations. On this score, demographics simply do not perform as significant predictors. One needs to ask directly. A lawyer might frame the question as follows: “In evaluating the companies in the news, some would say that it is most important for the company to be ethical, and others would say that it is most important for the company to follow the law. Knowing that you would prefer both, how many of you would be closer to that first group: It is most important to be ethical? And how many of you would be closer to that second group: It is most important to follow the law?” When a version of that question was asked of 2,005 respondents in national surveys, 61% responded that they would favor ethics over law when evaluating a company. This finding can play an important role in predicting a jurors’ ultimate verdict. Id. The egalitarians “Corporations listen only to money . . . .And I hate it that in our day and age, we have so many corporations-oh, they are going to make the minimum level of the law. But the law allows them to do this and who else but private citizens and people being hurt and losing their lives have a voice in wanting to change this, and say, ‘This is not right. It is not right’?”-Mock juror. The anti-corporate egalitarian objects to the inequality that corporations presumably create. To this juror, a focus on profit is itself suspect, and the voice of the private citizen is critical to reining in the corporation’s destructive tendencies. Anti-corporate egalitarians routinely presume that corporations have no greater motivation than to improve their bottom lines: “They knew that there was a problem,” this juror might say, “but they chose to ignore it. Profit, profit, profit.” A recent trend highlights the strength of this profit-motive presumption as a clear dimension of anti-corporate bias-an expectation for companies to have a social conscience. As one mock juror noted, “As a society we have to become more humanitarian-based and move away from profit motive because that is what leads to corruption.” Another said, “When a company knows of a risk they need to have enough of a social conscience to take care to avoid injury or death because of that risk. Simply saying, ‘It is not our fault,’ is not enough these days.” Id. National survey data underline the trend. As few as 38% of Americans agreed that large corporations are interested in making profits only if it doesn’t hurt the public. Only 35% deemed it unlikely that competitors would collude even if it increased the bottom line. In jurors’ eyes, collusion, tolerance of public harm and dishonesty serve corporate America’s primary master: profit. Id. It is critical to recognize that many jurors roll their eyes at the whole profit concept. The strategy with these types of jurors is not to try to convince them to set aside their worldview. As much as egalitarian jurors have bound themselves to a simplistic narrative of corporate motives, there are definitely ways for that presumption of profit to work for the client. When “doing the right thing” also means “doing the most profitable thing,” these skeptical anti-corporate jurors are much more inclined to believe that the company behaved responsibly. Consider the following approach in an opening that calls a profit a profit: “So if you ask yourself, ‘Why would Acme try its best to follow the contract?’ the answer may not surprise you-not because it was moral, and not even because it was legal, but because it was profitable. If the deal went through, then everyone would have benefited, Acme most of all. So of course Acme tried its best to follow the contract.” The individualists A third type of bias is found in the anti-corporate individualist, who contrasts the power of the big company with that of the little guy, and indicts corporations based on the level of control that they are presumed to exercise over regulators, competitors and consumers. At the most extreme, these jurors are willing to pay back perceived unfairness in kind by refusing to treat a corporation fairly in litigation. In mock trials, these jurors often held even defendant corporations to a substantial burden of proof. Why? These jurors conjure up the classic comparison voiced by one mock juror in a recent mock trial: “This is a David and Goliath situation.” Described as “big business” or “multibillion-dollar companies,” corporate defendants are held by anti-corporate individualists to higher standards of responsibility than any individual American. Accompanying this is a presumption that corporations wield influence over regulators. As one recent mock juror noted, “They are a big company and, so, probably like most companies their size that are international, they probably have a tremendous amount of pull in Washington to get what they need accomplished and sometimes to our benefit and sometimes not to our benefit.” Jurors’ perceptions of corporate power and inequality play out in a variety of ways. Research shows that 83% of jury-eligible individuals agree that the government favors large corporations more than ordinary Americans. The perceived disparity in public and corporate values is another indication of the wide gap between corporate executives and the public. Three years of survey data show that only 30% of jury-eligible Americans agree with the statement, “Business executives share my values.” Id. Targeting the most extreme anti-corporate individualist in jury selection is critical. While some potential jurors will not necessarily give full voice to their attitudes on too-powerful corporations in voir dire, several questions can be used as markers of those attitudes: “How many of you have ever worked for a company with more than 500 employees?” “Who has ever served in a management position, supervising others?” “Who agrees with the view that the government should more closely regulate corporations?” Research in mock trials demonstrates that pro-corporate jurors are more likely to have worked for large companies themselves, are more likely to have held management positions and are less likely to support government regulation. The days when people believed that “What’s good for General Motors is good for America” are over. Today’s juror indeed is quite likely to harbor a distrust toward corporations. The important lesson, however, is to dig beneath the surface to get to the specific reasons for distrust. Anti-corporate moralists, egalitarians and individualists represent three among many strains of anti-corporate bias. These are but three forms of anti-corporate bias; litigators will need to find ways to counteract a constellation of anti-corporate attitudes in a single presentation or trial. Targeting the specific form of anti-corporate bias in a particular juror allows a corporate party to maximize its chances of a favorable hearing based on the evidence and good argumentation. Ken Broda-Bahm is a senior litigation consultant, and Kevin Boully is an associate litigation consultant, at Persuasion Strategies, a service of Holland & Hart, based in Denver. They specialize in assisting counsel with pretrial research and trial messaging for jury and nonjury factfinders nationwide.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.