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To in-house lawyers and outside defense counsel, the 2000 NLJ-DecisionQuest Annual Juror Survey holds some disquieting results. Many of the potential jurors polled sound like people who have just come from a double feature of “The Insider” and “Erin Brockovich.” In other words, they’re not exactly inclined to trust corporations. To start with, 76 percent of the 1,000 potential jurors polled agreed either strongly (43 percent) or somewhat (33 percent) with the statement, “Executives of big companies often try to cover up the harm they do” — a slight decrease from the responses to the same question in 1999, but still sizable. Perhaps as a result, 28 percent said that they could not be impartial if a corporate executive were a party to a lawsuit. Without regard to the type of lawsuit involved, jurors also said they would have trouble being impartial if certain types of big companies were in a suit that they were hearing. From 24 percent to 34 percent of the respondents said that they could not be impartial if a party were a tire manufacturer (24 percent), a hospital (26 percent), a breast implant maker (29 percent), a gun maker (31 percent), an asbestos maker (32 percent) or a tobacco company (34 percent). Corporate lawyers who aren’t successful at turning jurors around to their way of viewing a case can face even more frightening attitudes about damages. “I think something is wrong with an adjudicatory system when corporate defendants, with good solid legal arguments in cases they should win, don’t feel safe taking their chances in the courtroom,” says Richard F. Lerach, assistant general counsel of U.S. Steel Group in Pittsburgh. BIAS SUIT BIAS More than a third of the respondents said they had a bias in favor of an employee who sues an employer for sexual harassment or racial discrimination. Thirty-seven percent agreed that if a person files a sex bias lawsuit, “it usually means the person was wronged.” Among those who agreed strongly, the highest percentages were among the unemployed and those with less than a high school education. An almost identical number, 36 percent, agreed with the statement that when a person sues on the basis of racial discrimination, the person was probably wronged. Bettina Plevan, an employment litigator at Proskauer Rose in New York who represents employers, says that she looks for intelligent jurors who will look past their sympathy for a particular plaintiff and follow the judge’s instructions. If possible, she prefers jurors with some management responsibilities. Survey numbers bear out her judgment. Generally speaking, respondents with more education were more likely to say that they would be impartial in cases involving corporate defendants. Who does Plevan avoid? “Tree-huggers,” she says, for lack of a better term — people who ignore the facts and law in pursuit of their idea of fairness. The survey also shows that if a company loses any type of suit, jurors seem prepared to punish a company with punitive damages, even if the amount suggested is very high. Three in 10 respondents said that to send “an effective message” to a company, a jury must impose damages in the billions. Young people were even more prone to think of damages in the millions as chump change. A little less than half of 18- to 24-year-olds (44 percent) said the price of sending a message is in the billions. Fortunately for defendants, jury summonses rarely catch up with this youngest group. Eight in 10 have never been called, and 97 percent have never served. In contrast, older and more affluent respondents said that damages in the billions aren’t necessary to send an effective message. One influencing factor may be the recent $145 billion punitive damages award against the tobacco industry in a Florida case. A surprising three out of four (73 percent) of those polled said they were aware of that record award. Still, only one in five of those polled said that because of that case they are now more likely to impose higher punitive damages in a case. “The real fear in your gut is a verdict like that,” said Plevan. On the other hand, a relatively small number of people seem to hold the recent, highly publicized recall of Firestone tires against the tire industry as a whole. Of all the corporate defendants they were asked about, respondents were most likely to say they could be impartial in a case involving a tire maker. Almost two-thirds of the potential jurors surveyed were aware that high damage awards are likely to be cut back by trial judges or during appeals. Some wonder whether this attitude permits jurors to award high verdicts on the belief that companies have a judicial safety if jurors go too far. GLASS HALF FULL Timothy J. Rooney, an experienced litigator at Chicago’s Winston & Strawn, thinks the survey numbers may give defendants a misleadingly negative view of the jury process. “My experience has been, once jurors are sworn into the jury box, they really do try to adhere to their oath,” he says. Defense verdicts are a much more usual occurrence than some of the survey numbers would suggest, he adds. Several defense lawyers also preferred to concentrate on the majority of respondents who said that they could fairly judge corporations. And companies may find a measure of goodwill among jurors on some issues. About half of the respondents (51 percent) agreed with the statement, “The quality of hospital care over the last five years has gotten much better.” A similar number (52 percent) agreed that “[t]he quality of physicians’ care over the last five years has gotten much better.” And more than a third (37 percent) said that companies should be able to sue Web sites to learn the names of employees who write negative e-mails about the company. The NLJ-DecisionQuest Annual Juror Survey was conducted on Sept. 22-24. The survey pool consists of 1,000 people, dialed at random across the country, who agreed to provide answers to the entire survey. All of the respondents were 18 years of age or over. They were classified according to gender, age, income, region of the country, Internet use, home ownership, education, employment status, marital status and race. Of the 1,000 surveyed, 54 percent had been called for jury duty at least once. Thirty-nine percent of the pool had served as jurors.

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