Jury Bias and the Corporate Client: How to Personalize the Impersonal i. i

Jury Bias and the Corporate Client
Jury Bias and the Corporate Client:
How to Personalize the Impersonal
1
George S. McCall
I.
Introduction
Though the opportunity is welcome, many challenges attend the defense of a corporate
client. The representation itself can span a wide range of practices and involve numerous
issues that must be evaluated and considered — especially when defending damages and
arguing their mitigation. This article focuses on the management and defense of a corporate
client before a jury in cases relating to products liability, negligence, toxic tort, environmental
litigation, breach of contract, and commercial litigation, which may involve a sympathetic
plaintiff or plaintiffs.
Not surprisingly, there is a widespread perception that juries are biased against corporate
defendants.2 This perception is often premised on the “deep pockets” hypothesis,3 i.e., a jury
is likely to award greater monetary damages against defendants with extensive financial
The author has attempted to accurately set forth existing law. Any opinions within this article, however,
are solely those of the author and are not warranted to be free from bias. Submitted by the author on behalf
of the FDCC Trial Tactics, Practice and Procedures Section.
1
Steven Lybrand & Jim Dobson, Jury Bias?Could Be True, LegalTimes, Mar. 28, 2005, at 27 (noting
“the $4.8 billion award California jurors ordered General Motors to pay for injuries to passengers in their
1979 Chevrolet Malibu suit,” and “the $2.3 billion judgment against Dow Corning over charges concerning
silicone breast implants”).
2
Contra Robert J. MacCoun, Differential Treatment of Corporate Defendants by Juries: An Examination
of the “Deep-Pockets” Hypothesis, 30 Law & Soc’y Rev. 121 (1996) (noting experiments which supported
little evidence for the effect of a defendant’s wealth on juror judgments).
3
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FDCC Quarterly/Winter 2008
S. McCall is the managing partner of the Irving, Texas
George
office of Kern & Wooley, LLP. Mr. McCall graduated from
Baylor University School of Law. His areas of concentration
include litigation involving commercial law, products liability,
general liability, contractual and extra-contractual matters,
as well as insurance coverage and insurance litigation. He
is board certified in Personal Injury Trial Law by the Texas
Board of Legal Specialization and in Civil Trial Law by the
National Board of Trial Advocacy.
resources.4 This perception also is drawn from the extensive media coverage involving corporate clients. In recent years, it is possible to recall the publicized corruption of one-time
industry giants such as WorldCom, Tyco, Enron and HealthSouth.5 Also, novels and films
bear considerable impact upon the perception of society and potential jurors. For example,
the popular John Grisham novel, the Rainmaker,6 was made into a movie that involved an ill,
sympathetic plaintiff who fought against a large insurance company. Similarly, the Jonathan
Harr novel and subsequent movie, A Civil Action,7 involved the illnesses of children and
adults allegedly caused by environmental contamination.
Jury perception of a corporate client has been frequently discussed and debated.8 How
a jury perceives the corporate client is an issue that should permeate the defense from the
outset of litigation. Given that each case involves different plaintiffs, claims, injuries, and
companies, there is not a single, specific approach that should predominate. Nevertheless,
there are some general principles that can be utilized when preparing a case for trial and
defending a corporate client before a jury. These are set forth below.
Interestingly, “deep pocket” is defined in Black’s Law Dictionary as “1. Substantial wealth and resources
[the plaintiff nonsuited the individuals and targeted the corporation with deep pockets]. 2. A person or entity
with substantial wealth and resources against which a claim may be made or a judgment may be taken [that
national insurance company is a favorite deep pocket among plaintiff’s lawyers].” Black’s Law Dictionary
(8th ed. 2004).
4
5
Corporate Scandals, Atlanta J. & Const., Dec. 28, 2003, at Q6.
6
John Grisham, The Rainmaker (1995).
7
Jonathan Harr, A Civil Action (1995).
See Tammy Worth, Lawyers Work to Overcome Jury Bias Against Corporate Clients, Kansas City
Bus. J., Jan. 26, 2007, available at http://kansascity.bizjournals.com/kansascity/stories/2007/01/29/focus2.
html.
8
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Jury Bias and the Corporate Client
II.
Defending Corporate Clients in the Wake of Enron
Media outlets draw quick attention to corporate malfeasance. News outlets and other
publications focus often on federal efforts to transform corporations into “good citizens”
through legislative and other initiatives such as the Sarbanes-Oxley Act,9 the money laundering provisions of the USA Patriot Act,10 and the revised guidelines for the prosecution
of corporations adopted by the U.S. Department of Justice.11
Given the media’s frequent broadcast of malfeasance involving corporations and their
operating executives, counsel may encounter a jury pool that is tainted with bias against
the corporate client before learning any of the alleged facts of the particular case. Dennis
Kozlowski, former CEO of Tyco, was convicted of twenty-two counts of grand larceny,
conspiracy and securities fraud, and found guilty of misappropriating $400 million in company funds.12 When Martha Stewart was convicted of four counts of obstructing justice and
lying to investigators,13 one of the jurors was heard to respond, “This is a victory for the
little guys. No one is above the law.”14
Pub. L. No. 107-204, 116 Stat. 745 (2002). Richard M. Scrushy was the first and only CEO to be tried
under the Sarbanes-Oxley Act for corporate fraud, and charged with conspiracy, securities fraud and other
wrongdoings in the plan that inflated earnings at HealthSouth by $2.7 billion from 1996 to 2002. Carrie
Johnson, Jury Acquits HealthSouth Founder of All Charges, Wash. Post, June 29, 2005, at A01. He was
found not guilty and acquitted of all thirty-six counts brought against him. The jury was quoted as saying,
“[t]he lack of substantial evidence and witnesses’ credibility” produced the verdict. Id. See also Michael
Kinsley, The Lord and Richard Scrushy, Wash. Post, July 3, 2005, at B07 (jurors were quoted in the press
indicating that they were bothered by the fact that Scrushy’s fingerprints were not found on copies of crucial
documents).
9
10
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA Patriot Act), Pub. L. No. 107-56, 115 Stat. 272 (2001).
11
News Release, Department of Justice, “U.S. Deputy Attorney General Paul J. McNulty Revises Charging Guidelines for Prosecuting Corporate Fraud,” (Dec. 12, 2006) (DOJ 06-828). Although not germane to
the specific areas of liability highlighted throughout this article, in recent years former Attorney General,
and then Governor of New York, Eliot Spitzer, filed numerous charges against corporations for allegedly
fraudulent business practices. See Spitzer Sues AIG, Ex-CEO for Fraud, CNN Money, May 26, 2005,
http://www.money.cnn.com/2005/05/26/news/fortune500/aig_pwc; Andy Serwer, Oh, the Games Insurance
Companies Love to Play, Fortune, May 30, 2005, at 53 (posing the question: there are no bad insurance
policies, only bad insurance executives?).
12
Kozlowski is appealing his conviction. See Peter Lattrman, Dennis Kozlowski: Prisoner 05A4820,
Wall St. J., Mar. 26, 2007, http://blogs.wsj.com/law/2007/03/26/dennis-kozlowski-prisoner-05a4820. On
a broadcast of 60 Minutes, he noted: “I was a guy sitting in a courtroom who made $100 million a year.
And I think a juror sitting there just would have to say, ‘All that money, he musta done somethin’ wrong.’
I think it’s as you know, it’s as simple as that.” Id.
Stewart Convicted on All Charges, CNN Money, Mar. 10, 2004, http://www.money.cnn.com/2004/03/05/
news/ companies/martha_verdict.
13
Id.
14
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One of the most notable hostile jury pools involved the prosecution of Arthur Andersen in a Houston federal court. The accounting firm was on trial for shredding documents
involving Enron.15 U.S. District Judge Melinda Harmon informed forty percent of the 160
prospective jurors that they were not required to appear because their responses to mailed
questionnaires indicated a bias against Arthur Andersen. For example, some of the jurors
had lost money on Enron stock. Others worked for or had relatives who worked for Enron,
Arthur Andersen, or both companies. Although 106 panelists gathered at the courthouse,
almost half were disqualified for prejudice. Defense counsel Rusty Hardin, representing
Arthur Andersen, remarked: “The antipathy toward anybody who had anything to do with
Enron, whether it was Arthur Andersen or anyone else, was just palpable.”16 He further
commented that: “In the 27 years I’ve been trying cases, I’ve never seen those types of
numbers.”17
For many decades, large corporate entities have lobbied for tort reform on grounds
that jurors are overly sympathetic to plaintiffs and hostile to corporations.18 Although there
is empirical research that refutes the myth of anti-business bias, public opinion polls have
demonstrated a widespread distrust of businesses and corporations, as well as a manifest
hostility. But do these attitudes influence a jury’s ability to make decisions once the jury is
seated in a given case?
Corporate scandals and personal injury lawsuits involving alleged corporate misdeeds
have been featured in the media on a regular basis. Consider the $246 billion tobacco industry
settlement,19 Ford roll-over accidents,20 and lawsuits resulting in the recall of defective Firestone tires21 and diet drugs.22 More recently, Vioxx litigation has led the news following a Texas
John Gibeaut, Softening Up Client ‘Appeal’: Some Corporations Need to Put on a Human Face When
Coming Before a Jury, 89 A.B.A. J. 28 (July 2003). The conviction of Arthur Andersen eventually was
overturned by the United States Supreme Court in the case of Arthur Anderson LLP v. United States, 544
U.S. 696 (2005).
15
Id.
16
Id.
17
Harvey R. Levine, Recognizing the Effect and Consequences of Attacks Against the Civil Justice System
and Lawyers: Impact on Jurors, Levine on Trial Advocacy: Jury Selection Ch. 6-B § 6:15 (2004).
18
See Thomas B. Edsall, Edwards’ Selection Puts Torts on the Menu, Pittsburgh Post-Gazette, July 11,
2004, at A12.
19
Id.
20
Id.
21
See Alison Frankel, Still Ticking: Mistaken Assumptions, Greedy Lawyers, and Suggestions of Fraud
Have Made Fen-Phen a Disaster of a Mass Tort, American Lawyer, Mar. 2005, at 92.
22
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jury verdict in excess of $253 million.23 Plaintiffs’ counsel, Mark Lanier, argued that Merck &
Co. misled physicians and consumers to conceal health risks while building sales.
Studies have found that there is a widespread distrust of corporate management, as well
as a cynicism toward product warnings.24 Some participants in these surveys “believe[] that
product warnings are intended to protect manufacturers from lawsuits rather than to protect
the consumers from harm.”25
Excerpting certain studies from Levine on Trial Advocacy: Jury Selection, consider the
following:
The Minority Corporate Counsel Association (MCCA) and DecisionQuest conducted a national survey and focus group study in 2002 to discover juror attitudes
toward business. The researchers found that hostility toward business as a whole,
not just companies in the news, is at an all-time high as a result of the corporate
scandals. The good companies, not the bad ones, are considered the exception. This
anger was expressed across geographic locations. In fact, areas in the South and
Northeast, typically corporate-friendly locations, are currently the most hostile to
corporations. In addition, more than 75% of white males, a demographic group that
is also ordinarily favorable to business, stated they do not trust corporations and
cited news accounts of corporate misdeeds as the reason. Many participants did
not believe that the government is capable of regulating corporations, as expressed
in this comment: “If a company is big enough, it can circumvent the government
agencies with the right lawyers and money.”26
Drawing from the foregoing, as well as the much publicized debacle of Enron, it is
important to be aware of the potential biases faced by a corporate client in a trial to a jury.
As demonstrated in the Arthur Andersen case, this bias can be apparent at the outset of jury
selection. Below are recommendations for selecting a jury and presenting the corporate
client in a manner that allows for personalization and humanization when the defendant is
a corporation.
Diedtra Henderson, He’s Taking on Vioxx Maker on Its Home Turf: Lawyer’s Winning Texas Style to
be Tested in New Jersey, Boston Globe, Feb. 26, 2006. The article noted that, “[d]uring jury selection,
Merck will seek to seat business-savvy jurors more likely to be interested in hard evidence than softhearted
pitches.” (citing Peter A. Bicks, Orrick, Herrington & Sutcliffe). Merck was successful in the Atlantic City,
New Jersey trial with the jury finding that Merck warned of the dangers associated with use of the drug.
Tharesa Agovino, A Long Road Ahead: One Case at a Time: Plaintiff and Defendant Are Even in Vioxx
Court Battles, Huston Chronicle. Apr. 22, 2006, at 1. Other trials have resulted in mixed results for the
pharmaceutical company. At the time of publication of this article, Merck has agreed to pay $4.85 billion
to settle thousands of claims.
23
Levine, supra note 18.
24
Id.
25
Id. at § 6:15 (citation omitted).
26
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FDCC Quarterly/Winter 2008
III.
Deep Pockets Hypothesis and the Media
A. Deep Pockets Defined
As previously noted, differential treatment of corporations is often based upon the
“deep pockets” sentiment.27 This sentiment may lead jurors to consider the finances of a
corporation when determining damages and, in some cases, even when determining liability.28 The reasons behind such differential treatment can include the corporation’s status,
role, organizational resources, size, and potential impact. Jurors often are unaware that,
although corporations have greater assets than individuals, the money on the table at trial
often belongs to an insurance company.
B. Empathy for Injured Individuals
It is not surprising that juries often sympathize with the injured plaintiff(s) when the
plaintiff brings suit against a large corporation. In a case of Jane Doe v. Billion Dollar Co.,
Jane Doe generally is initially viewed as an individual person who has suffered injuries
alleged to have been caused by a body-less corporation. Over the years, numerous commentators have emphasized the necessity to humanize a corporation by focusing on the
people who work there, as well as those who are assisted by the product or the corporation
itself.29
C. Media Coverage
Information broadcast by the media often can be described as biased and subjective:
Exposure to lawsuits in general via the media has given rise to unprecedented
public awareness of litigation, which shapes the attitudes jurors carry into the
courtroom today. Unfortunately, that awareness is not always accurate, having too
often been predicated on high-profile cases that bear little or no resemblance to
ordinary litigation.30
See supra Part I.
27
Valerie P. Hans, The Illusions and Realities of Jurors’ Treatment of Corporate Defendants, 48 DePaul
L. Rev. 327 (Winter 1998).
28
See, e.g., J. Ric Gass, Defending Against Damages Claims, 58 FDCC Quarterly 149 (Winter 2008).
29
James L. Gilbert et al., The Long and Winding Road: Overcoming Juror Bias During Voir Dire, Assoc.
of Trial Lawyers of America, ATLA Annual Convention Reference Materials (2002).
30
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Jury Bias and the Corporate Client
Corporations have invested both in lobbying and advertising to persuade the press
and the public that frivolous lawsuits are congesting court dockets and causing
excessive awards that raise insurance premiums and jeopardize important community services.31 Consider the case of Liebeck v. McDonald’s Restaurants, which
has become characteristic of this trend.32 The award of $160,000 in compensatory
damages and $2.7 million in punitive damages generated public outrage when
a woman who spilled coffee on herself sued to recover, claiming that the coffee
was excessively hot.33 While many lawyers have since learned that the award was
reduced, the media coverage was extensive.
A number of reporters and editorial writers fueled the drive for outrage in their various publications. For example, the San Diego Union-Tribune published an editorial stating
that:
When Stella Liebeck fumbled her coffee cup as she rode in the car with her grandson,
she might as well have bought a winning lottery ticket. The spilled coffee netted her
$2.9 million in the form of a jury award. Liebeck had sued McDonald’s for serving
take-out coffee that her lawyer claimed was too hot. This absurd judgment is a stunning illustration of what is wrong with America’s civil justice system. Ironically, it
may also become a powerful spur to the cause of tort reform. Our guess is that other
greedy copycats in restaurants throughout America soon will be happily dumping
coffee into their laps in a bid to make a similar killing in the courtroom.34
The Liebeck suit led to the “Stella Awards,” named after plaintiff Stella Liebeck and awarded
annually. A Google search revealed several websites devoted to the “Stella Awards.” In fact,
the website www.StellaAwards.com contained the caption: 35
Id.
31
No. CV-93-02419, 1995 WL 360309 (N.M. Dist. Ct. Aug. 18, 1994).
32
The case served as the basis of comedic routines by many late night talk show hosts, even making a
top-ten list of David Letterman. Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the
Debate over Tort Reform, 26 Cap. U. L. Rev. 701 (1997) (referring to a CBS television broadcast of The
Late Show with David Letterman, broadcast on January 8, 1996). Drawing from this, many also will recall
the Seinfeld episode where Kramer spills coffee on himself and files suit, later remarking to Jerry that he
is litigious. Id. (referring to Seinfeld episode The Maestro, which aired on NBC on Oct. 5, 1995).
33
Java Hijack, San Diego Union Trib., Aug. 20, 1994, at B6.
34
Stella Awards, http://www.stellaawards.com/2006.html (last visited Dec. 26, 2007).
35
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FDCC Quarterly/Winter 2008
OPPORTUNISTS AND )
SELF-DESCRIBED VICTIMS )
) StellaAwards.com
Plaintiffs, )
) pleading before the
vs. )
) Court of Public Opinion
ANY AVAILABLE DEEP POCKETS )
AND THE U.S. JUSTICE SYSTEM ) begs the court to take notice of
)
Defendants. ) the 2004 Award Winners
_____________________________
)
Identified as the “True Stella Awards,” not the “fake cases . . . circulated online for the
last several years,” the following lawsuits were cited as notable for 2006:
The 2006 True Stella Awards Winners
by Randy Cassingham
Issued 31 January 2007
#5: Marcy Meckler. While shopping at a mall, Meckler stepped outside and was
“attacked” by a squirrel that lived among the trees and bushes. And “while frantically attempting to escape from the squirrel and detach it from her leg, [Meckler]
fell and suffered severe injuries,” her resulting lawsuit says. That’s the mall’s fault,
the lawsuit claims, demanding in excess of $50,000, based on the malls “failure to
warn” her that squirrels lived outside.
#4: Ron and Kristie Simmons. The couple’s 4-year-old son, Justin, was killed in a
tragic lawnmower accident in a licensed daycare facility, and the death was clearly
the result of negligence by the daycare providers. The providers were clearly deserving of being sued, yet when the Simmons’s discovered the daycare only had
$100,000 in insurance, they dropped the case against them and instead sued the
manufacturer of the 16-year-old lawn mower because the mower didn’t have a safety
device that 1) had not been invented at the time of the mower’s manufacture, and
2) no safety agency had even suggested needed to be invented. A sympathetic jury
still awarded the family $2 million.
#3: Robert Clymer. An FBI agent working a high-profile case in Law Vegas, Clymer
allegedly created a disturbance, lost the magazine from his pistol, then crashed his
pickup trunk in a drunken stupor as his blood-alcohol level was 0.306 percent, more
than three times the legal limit for driving in Nevada. He pled guilty to drunk driving
because, his lawyer explained, “With public officials, we expect them to own up to
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Jury Bias and the Corporate Client
their own mistakes and correct them.” Yet Clymer had the gall to sue the manufacturer of his pickup truck, and the dealer he bought it from, because he “somehow
lost consciousness” and the truck “somehow produced a heavy smoke that filled
the passenger cab.” Yep: the drunk-driving accident wasn’t his fault, but the truck’s
fault. Just the kind of guy you want carrying a gun in the name of the law.
#2: KinderStart.com. The specialty search engine says Google should be forced
to include the KinderStart site in its listings, reveal how its “Page Rank” system
works, and pay them lots of money because they’re a competitor. They claim by
not being ranked higher in Google, Google is somehow infringing KinderStart’s
Constitutional right to free speech. Even if by some stretch they were a competitor
of Google, why in the world would they think it’s Google’s responsibility to help
them succeed? And if Google’s “review” of their site is negative, wouldn’t a government court order forcing them to change it infringe on Google’s Constitutional
right to free speech?
And the winner of the 2006 True Stella Award: Allen Ray Heckard. Even though
Heckard is 3 inches shorter, 25 pounds lighter, and 8 years older than former basketball star Michael Jordan, the Portland, Oregon man says he looks a lot like Jordan,
and is often confused for him — thus he deserves $52 million “for defamation and
permanent injury” plus $364 million in “punitive damage for emotional pain and
suffering”, plus the SAME amount from Nike co-founder Phil Knight, for a grand
total of $832 million. He dropped the suit after Nike’s lawyers chatted with him,
where they presumably explained how they’d counter-sue if he pressed on.36
There also exist several urban legend “Stella Awards” based upon events that have never
happened.37 Consider the case of a man who set his Winnebago on cruise control to get a
cup of coffee, and crashed the vehicle because there was no warning that a driver should
Randy Cassingham, True Stella Awards: The 2006 Winners, http://www.StellaAwards.com/2006.html
(Dec. 26, 2007). Speaking of false or frivolous lawsuits, consider the case of Anna Ayala, the Las Vegas
woman who was arrested for attempted grand larceny after she claimed she found a finger in a bowl of
Wendy’s chili. See Kim Curtis, Child-Finger Scam Duo Sentenced to Prison, Buffalo News, Jan. 19, 2006,
at A5. Ayala pled guilty and was sentenced to nine years in prison on January 18, 2006. In more recent
news, an attorney sued a drycleaner for a lost pair of trousers seeking $67 million in damages. Jim Avila,
et al., The $67 Million Pants: Washington, D.C., Lawyer Sues Dry Cleaners for Lost Trousers, May 2,
2007, http://abcnews.go.com/TheLaw/LegalCenter/story?id=3119381. The suit was dismissed by the court
in favor of the defendant dry cleaner in June 2007. See David Pannick, 2007: From Anna Nicole to Paris
Hilton, Times (U.K.), Dec. 11, 2007, at 1.
36
See Guy Harrison, The Duty (and Honor) of Debating the Facts, 66 Tex. B. J. 110 (Feb. 2003).
37
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FDCC Quarterly/Winter 2008
stay in control of the vehicle. He supposedly was set to receive $1.75 million. Another case
involved an Austin, Texas woman who tripped over her toddler in a furniture store and received $780,000. And then there was the case of a man in Los Angeles, California who was
awarded damages for injuries suffered when he attempted to steal hubcaps from a car that
ran over his hand. Since these cases are the stuff of “urban legend,” of course, they cannot
be documented. But they indicate the pervasive nature of public reaction.
Many defense attorneys still raise the Liebeck case during voir dire as a subject of routine questioning.38 Such a useful tactic can be augmented by reference to other “legendary”
verdicts in order to assess the jury’s perceptions with regard to litigious plaintiffs or, on the
other hand, a distrust of corporate entities.
While the foregoing may be used to introduce some level of question about a plaintiff’s
motives in bringing suit, the reality is that once the jury is impaneled in these cases, the
plaintiff will garner more sympathy than a corporate defendant. Furthermore, though the
media may publicize “frivolous” types of lawsuits, it also publicizes the alleged wrongdoings of corporate executives, and these are likely to hold more immediate impact.39 The
issue then becomes one of minimizing a negative perception and humanizing the corporate
entity. What follows is a discussion of trial tactics in the defense of a corporate client.
IV.
Trial Tactics
The careful selection of a corporate representative should be made in the early stages of
litigation. Together with counsel, the corporate client should select a representative who is
not only knowledgeable about the facts and the company, but personable as well. In short,
it should choose a representative with whom the jurors can identify.
A. Selecting the Corporate Client Representative
Which corporate executive will prove acceptable to the jurors? It is unlikely that the
corporate client’s chief executive officer or president will attend the trial. Furthermore, such
an individual may not be the best representative to place before a jury given that many jurors
may not relate to someone of that stature.40 Instead, it is best to choose a representative who
is directly familiar with the product or facility at issue. It is that individual to whom the jury
will assign a corporate “face.”
See Tammy L. Williams, Implement Winning Trial Techniques to Limit Damages, Nat’l Bus. Inst.,
Personal Injury Cases: Calculating and Proving Damages (2006), available at 32059 NBI-CLE 175
(Westlaw).
38
See supra Part II.
39
Cf. Nick v. Morgan’s Foods, Inc., 270 F.3d 590 (8th Cir. 2001) (noting that district court acted within
its discretion under sanctioning provision of Federal Rule of Civil Procedure 16 when corporate client sent
a corporate representative with limited authority to court ordered alternative dispute resolution conference).
40
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Jury Bias and the Corporate Client
Once selected, it is important that defense counsel become equally well acquainted with
the corporate representative before and during the trial. Such familiarity includes knowledge
about the corporate representative’s educational and employment background, job duties,
and tenure with the company, and knowledge about the corporate client’s operations and
structure in general. Depending upon the corporate client and the nature of its products, it
is possible that a juror may hold biases against the client that are unrelated to the case but
otherwise connected to negative publicity or even a history of poor workmanship or service within the juror’s own frame of reference. Finally, it is important that defense counsel
generate discussions with the corporate representative about appropriate dress and behavior
before a jury. Inappropriate gestures from a corporate witness or representative are likely to
impact juror attitudes toward the defendant client throughout the trial. Equally important,
the corporate representative must take care to demonstrate no sign of hostility towards the
plaintiff or the plaintiff’s counsel.
B. Video Deposition of Corporate Client
State and federal rules permit the adverse party to depose the corporate person who holds
the greatest knowledge about topics relevant to the case, i.e., the “person most knowledgeable.”41 Company witnesses are critical to the defense of products and toxic tort cases in
particular. These witnesses should be carefully prepared. A well-prepared witness will be
able to identify questions designed to elicit damaging answers, will know when to decline
a response to compound, confusing or “trap” questions, and will be prepared to ask counsel
to rephrase or repeat a question.42
During the video deposition of a corporate client, the dress and demeanor of the corporate
representative is also important. The client should be well-groomed, attired in appropriate
professional clothing, and instructed to maintain good mannerisms during the deposition.
In preparing for the video deposition, the representative should be told to: look directly
at the camera, avoid fidgeting or other nervous movements, only respond to the question
asked, and refrain from volunteering additional information. It may be helpful to practice
the deposition in front of a camera to demonstrate how the client will be perceived on tape
and how the representative’s gestures or mannerisms will be interpreted by the jury. For
example, avoiding eye contact with the camera could indicate evasiveness or dishonesty.
Similarly, if the witnesses crosses his arms or adopts other closed-body language, he could
be perceived as hostile or distant.
See Marlin M. Volz, Deposition of Organizations: The Designation Procedure under the Federal Rules,
33 S.D. L. Rev. 236, 245-46 (1988).
41
Lawrence G. Cetrulo, Corporate In-House Counsel: Deposition of Company Witnesses, 2 Toxic Torts
Litig. Guide § 12:12 (Oct. 2007).
42
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FDCC Quarterly/Winter 2008
If the client does not testify later at trial, the deposition video will become a vehicle for
demonstrating non-responsiveness to questioning or even hostility.43 Similarly, inconsistent
testimony could be used to impeach the client. Furthermore, if the corporate representative
proffers testimony on the stand that conflicts with prior testimony while being deposed, the
deposition can not only be read before the jury, but it can be played before the jury as well.
Such visual footage can be damaging to the client’s credibility and ultimately to the defense
in general.
C. Mock Trials
In cases involving high exposure against the corporate client, it may be useful to conduct a mock trial. Focus groups can be secured to explore the strengths and weaknesses of
the case and provide indications about how the client will be received. Numerous practice
groups also are available to facilitate a mock trial that may be helpful in assessing potential
jury perception of the client, perceptions regarding the corporate representative, as well as
an indication of liability and damages.44 It is not uncommon to have jurors transported to a
site from the trial venue itself, enabling defense counsel to draw a jury pool that may include
“jurors” whose backgrounds and beliefs are similar to those of the actual jury.45
In conducting a mock trial, it is sometimes best to present the most negative publicity
against the client in order to learn whether the client can withstand the residual impressions.
While a mock juror might indicate during the voir dire phase that such information would
not bias his or her opinion, actual deliberations may disclose otherwise. Following the mock
trial, therefore, it is important to conduct extensive juror “debriefing” to ascertain those facts
about the client or case that were most influential.
It is not uncommon to conduct several mini-mock trials presenting different evidence
to the mock jury.46 This will assist when preparing the case and it will serve to apprise the
client of its potential exposure.
D. Motions in Limine
Although there is no express authority in either the Federal Rules of Civil Procedure or
the Federal Rules of Evidence, motions in limine are well recognized in practice and case
43
See Patrick Lynch & Paul Salvaty, Deposition Procedure, 2 Bus. & Com. Litig. in Fed. Cts. § 20:41 (2d
ed. 2007).
See Barbara Kacir, Using Jury Research to Understand, Structure and Present Your Case, 1 Sedona
Conf. J. 19 (2000).
44
See Harvey R. Levine, Levine on Trial Advocacy: Jury Selection 7A-4 (2004) (recommending that
mock jurors be selected from the actual jurisdiction where the trial will be held).
45
See Kacir. supra note 44.
46
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Jury Bias and the Corporate Client
law.47 Motions in limine constitute an important tool to use in defending the corporate client.
Because trials often can be lengthy, many attorneys hold the opinion that jurors generally
do not like endless objections that are raised at trial. They interrupt the flow of testimony
and are sometimes viewed as a needless “waste of a juror’s time.” Also, if an objection is
entered that prevents a witness from disclosing harmful information, a jury can draw an
inference that the testimony would have been unfavorable to the objecting party. To avoid
these problems, motions in limine should be filed where possible to preclude certain questions from being posed in the first place.
Typical motions in limine include the preclusion of settlement offers to prove liability,
evidence of liability insurance, post-accident repairs, expert testimony, evidence barred by
discovery rules, out-of-court experiments conducted under dissimilar conditions, evidence
that lacks foundation, evidence excludable under Federal Rule of Evidence Rule 403 (probative value outweighed by the danger of undue prejudice), and a defendant’s net worth on a
punitive damages claim. On the issue of punitive damages, a motion in limine is especially
important to the representation of a corporate client. “It prevents plaintiff from making
‘inadvertent’ references to defendant’s wealth, etc., before culpable conduct is established.
Juries tend to blur the distinction and may punish a wealthy defendant even if the court
ultimately rules the plaintiff has failed to prove malice, oppression or fraud.”48 Many jurisdictions allow bifurcation of liability and damages.49 This may forestall the introduction
of evidence regarding corporate wealth until after an appropriate determination of liability
and culpability.
E. Venue – Know the Audience
How best to approach the jury often will be influenced by the venue in which the case
is pending. For example, defense counsel must be particularly wary when defending in a
jurisdiction deemed by the American Tort Reform Association to be a “judicial hellhole,”
i.e., a venue that is traditionally and overwhelmingly pro-plaintiff.50 Such venues include
trial courts in West Virginia; South Florida; the Rio Grande Valley and Gulf Coast in Texas,
as well as Cook County, Illinois; Madison County, Illinois; and St. Clair County, Illinois.
See Robert E. Jones et al., Final Pretrial Conference and Motions in Limine, Rutter Group Prac. Guide
Fed. Civ. Trials & Ev., Ch. 4-F (2007).
47
Id. at § 4:361.
48
75 Am. Jur. 2d Trial § 83 (2007).
49
Am. Tort Reform Ass’n, Judicial Hellholes 2006, http://www.atra.org/reports/hellholes/2006/hellholes2006.pdf.
50
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Similarly, greater efforts must be made to humanize a corporation when trying the case
in a foreign jurisdiction, as opposed to trials in the corporation’s hometown. As noted above,
this was the lesson quickly learned by Merck in the Vioxx litigation.51 The New Jersey-based
pharmaceutical company defended the first of thousands of lawsuits related to Vioxx, an
arthritis painkiller, in Texas. During trial, the plaintiff focused on the jurors’ emotions while
Merck focused its defense on numbers and science. This approach proved problematic, and
the jury awarded the plaintiff $243 million in damages. Commenting upon Merck’s defense
strategy, Phil Anthony, an attorney and CEO of a trial research firm, noted the following:
Juries outside Dallas and Houston are fairly well known to be anti-big business,
anti-big corporation and very focused on wanting to know about the corporate behavior of any given party. . . . You’ve got a frustrated population that’s at the lower
end of the economic scale and they find reasons to be angry at the corporations.
It’s surprising to me that Merck was not aware of that fact.52
Mr. Anthony went on to opine that the verdict against Merck might have been avoided,
or at least minimized, if Merck’s defense team had taken greater steps to humanize the
corporation. Instead, “it look[ed] like Merck did nothing to inoculate themselves against
what they should have known to be the hostility that would exist [in Texas] against corporations.”53
Merck’s next trial took place in its home state of New Jersey, where it was predicted
that New Jersey jurors, by contrast to those in Texas, would listen to Merck’s statistics and
science. Commentators reasoned that “in New Jersey, you actually know people who work
at Merck and Pfizer, so it puts a human face on it. It’s not big, bad pharma; it’s my neighbor
Joe.”54 As predicted, the same defense strategy that resulted in an enormous judgment against
Merck in Texas landed the pharmaceutical giant a huge win in New Jersey.55 Merck appears
to have learned from its initial strategy; it now has won nine of the fourteen product liability
See Aaron Smith, Don’t Bet on Merck’s Homefield Advantage, CNN Money, Sept. 5, 2005, http://money.
cnn.com/2005/09/08/news/fortune500/vioxx/index.htm.
51
Id.
52
Id. (quoting Phil Anthony).
53
Id. (quoting Dr. Bryan Liang, an expert in health law at the California Western School of Law).
54
Aaron Smith, Big Win for Merck in Vioxx 2, CNN Money, Nov. 3, 2005, http://money.cnn.com/2005/11/03/
news/Fortune500/merck_humeston/index.htm.
55
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cases tried since.56 Thus, it “pays” to be aware of the impact that venue choice may have on
the defense of a corporate client.
F. Voir Dire
As noted above, it is critical that counsel attempts to determine the jurors’ initial perceptions of the corporate client. In other words, does the client have a reputation that precedes
it? The client may have a history of poor business practices unrelated to the litigation, and
these may negatively impact the jury’s perception. It is also good practice to be wary that
such accusations may already have molded public opinion.57 However, in the efforts to
identify and exclude those jurors who already hold knowledge of the case, remember that
the goal is to arrive at an impartial jury, not a “clueless” jury.58 “As one federal court has put
it, the ‘absence from the jury of individuals who read daily newspapers and keep abreast of
newsworthy developments is simply not the best of all possible worlds.’ ”59
The task of humanizing the corporation begins at the outset of the trial process. A pleasant and knowledgeable corporate representative should be present throughout the course
of trial, beginning with jury selection. While it may not be possible to have a representative beside counsel during the entire length of the trial, it is important to have a corporate
representative present during voir dire and opening statements, as well as through much of
the factual testimony and expert opinion testimony concerning liability issues. If the client
representative must be absent during part of the trial, it would be useful to mention this at
the outset.60 Otherwise, an empty-chaired corporate representative may leave the impression
that the corporate client does not care about the case. Having the most ideal representative
of the corporate client seated at table with defense counsel, modeling “good faith, sincerity,
Both Sides in Vioxx Litigation Claim the Upper Hand 3 Years after Merck Withdrew the Drug, Int’l
Herald Trib., Sept. 28, 2007, http://www.iht.com/articles/ap/2007/09/28/business/NA-FIN-US-Vioxx-Anniversary.php.
56
Gibeaut, supra note 15 (recommending that defense counsel research news accounts and use polls, focus
groups, and mock juries to help detect corporate bias); Michael J. Saks, What Do Jury Experiments Tell Us
About How Juries (Should) Make Decisions?, 6 S. Cal. Interdisc. L. J. 1 (Fall 1997) (noting that “studies
uniformly find that unfavorable [pre-trial news] coverage . . . produces higher rates of conviction”).
57
Charles H. Whitebread, Jurors Must Be Impartial. They Shouldn’t Be Clueless, Wash. Post, June 22,
2003.
58
Id.
59
Judge Adele Hedges & Daniel K. Hedges, Voir Dire, Tex. Prac. Guide: Civil Trial, Ch. 4.VI § 4:124
(2007).
60
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professionalism, honesty and credibility,” is an important step towards personalizing the
client.61
To establish a rapport with the jury, it is important to be prepared. If the court has not
introduced counsel and the corporate client, make introductions. Also, if there are officers,
relatives, or employees of the corporate client present in the courtroom, introduce them to
the jury to connect names and faces.62
Probe the jurors for anti-corporate bias. Questions should be posed to determine whether
the jurors are biased against the corporation from the outset.63 Typically, the jurors who tend
to be more favorably disposed toward a corporate defendant include persons with higher
education, persons employed in a technical profession, elderly or retired persons, persons
with past jury experience, persons who dress conservatively, persons who seem stern and
austere, and persons who have been involved in similar occurrences but sustained no injury.64
However, these stereotypic profiles recently have begun to change, and “some of the
largest bias may be from middle-of-the road, educated, well-informed people.”65 The reason
for this change in profile is simple: “When Sprint announces they are going to cut 5,000 jobs,
C. Barry Montgomery & Bradley C. Nahrstadt, How to Defend Punitive Damages Claims Effectively
- And Maybe Successfully, 66 Def. Couns. J. 347, 361-62 (July 1999).
61
Hedges, supra note 60, § 4:124.
62
Questions could include the following:
63
• “Have you ever had an unpleasant experience with a large corporation?” (Many jurors will
answer “Yes.”)
• “Tell me about your experiences.”
• “As a result of your experiences, what feelings or attitude do you have regarding large corporations?”
• “Would any such feelings or attitude affect your evaluation of the evidence or your deliberations in this case?”
• “You agree, do you not, that corporations, as well as individuals, are entitled to a fair trial?”
Id. at § 4:143. Another example includes: “As you know, I represent a corporation in this matter. You indicated
to the court that this fact will not cause you to be biased against my client. Is it then correct to state that
my client is entitled to the same consideration as is the plaintiff in this case? Would you require less proof
to bring a verdict against my client than you would if my client were an individual? You do appreciate, do
you not, Mr. X, that corporations are made up of individuals and that the claims of plaintiff are claims of
misconduct on the part of individuals?” Justice Zerne P. Haning (Ret.) et al., Trial of Bodily Injury Case:
Impanelment of Jury, Rutter Group Cal. Prac. Guide Pers. Inj., Ch. 9-C, § 9:148(l) (2007).
Haning, supra note 63, at § 9:165.
64
Worth, supra note 8.
65
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Jury Bias and the Corporate Client
there will be 5,000 people not happy with that.”66 Accordingly, it may be wise to utilize a
jury consultant to assist in selecting the jury. Professional jury consultants provide reports
and recommendations on demographics, juror profiles, the desirability of individual venire
persons, and witness preparation.67
In addition to addressing anti-corporate bias, be careful not to overlook the importance
of determining potential juror attitudes toward punitive damages.68 It has been noted that
“[e]liminating jurors who might feel betrayed by corporations, but who haven’t abandoned
their conservative views on damages, can result in a jury with a stronger impulse toward
punishment than might have been the case before the collapse of Enron.”69 The sensitive
subject of punitive damages is best probed by the use of questionnaires from the court rather
than oral questions posed to individual jurors during voir dire.70
G. Opening Statement
The opening statement is a critical component of the jury trial. This format permits another opportunity to personalize the corporate defendant. Most jurors can identify with the
“American Dream” of forming a small business, which grows in time through the strength and
dedication of its founders and employees. Jurors are sympathetic and supportive of the aims
of American business. Therefore, identify the individuals responsible for the manufacturing
process and explain how individual company employees perform their jobs with great care
and concern for the consumers. Identify the corporation’s involvement in the community
or charitable organizations as well. If the corporation traditionally has not been involved in
charity work, encourage them to do so now. Supporting an appropriate, well-chosen charity
can go a long way in gaining public approval. For example, Procter & Gamble, the manufacturers of Crest toothpaste, gained an additional fifteen percent of its targeted Hispanic
market in 2000 after starting a national dental-health program for underserved children.71
Plaintiffs’ counsel will attempt to portray the corporate client as corrupt, motivated by
profits and self-interest, and indifferent to any alleged harm. The opening statement must
tell a story, narrating the events and framing witnesses with a compelling defense which
enables jurors to view the case from a more “personal” perspective. Building a background
Id.
66
Hedges, supra note 60, § 4:113.
67
Michael T. Burr, Re-channeling Juror Anger, Corp. Legal Times (Aug. 2004).
68
Id.
69
Id.
70
Unmesh Kher, Getting Smart at Being Good . . . Are Companies Better Off for It?, Time Magazine, Dec.
19, 2005, at A1.
71
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for the defendant and its individual employees in a favorable manner will allow jurors to
relate to the company and its employees — an important step towards personalizing the
client in the eyes of a juror.
Drawing from a hypothesis in The Art & Science of Trial Advocacy,72 consider a personal
injury case brought against a national petro-refinery company for injury to a sub-contractor at
one of the particular refineries owned by the company. The corporate representative should
be someone from the local refinery, not the national company, and should have a working
knowledge of the events in dispute. If the defendant refinery chose a shift foreman as its
representative who was on duty at the time of the alleged accident, an illustrative opening
statement could include the following:
The defendant in this case is not some nameless, faceless conglomerate concerned only with making money at the expense of the safety of its workers. That image, suggested by plaintiff, may feed into people’s stereotypes, but it does not match
the evidence or the reality in this case. PC Refining is people like Hank Durston,
right here. Hard working, productive, reliable, loyal. Hank started working for PC
back when it only had one refinery, 35 years ago. He came to work for PC straight
out of high school. He started at the bottom of the ladder and through persistence
and hard work and commitment he advanced through the ranks until three years
ago he became a shift foreman. Hank often says that he’s done every job there is
to do at a PC refinery, from cleaning bathrooms to hiring and firing workers. Since
he started at PC, Hank has married his high school sweetheart, became a father
four times over and recently a grandfather. He’s never lived anywhere other than
right here; he’s never worked anywhere other than at PC. He will tell you about
the culture at PC Refining, that it is more like a family than a corporation and that
is a place that puts the safety of its workers first, far above profits or productivity.
If it was any other way, Hank Durston wouldn’t have stayed for so long.73
It is important to identify the “defendant” as the representative sitting at the table alongside counsel for the duration of the trial.74 If someone comes to the defense table with no real
involvement in the case, plaintiff’s counsel may point this out to the jury with appropriate
questions during opening statement: “Where is the Vice-President who made the decision
L. Timothy Perrin et al., The Art and Science of Trial Advocacy (2003).
72
Id. at 130-31.
73
See Roberto Aron et al., Personalizing the Corporate Client, Trial Commc’n Skills § 29:24 (2d ed.
June 2006).
74
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to design the smoke-detector as a photogenic detector, rather than a duel detector with an
ionization sensor?”; “Where is the engineer that designed this project?”; “Why didn’t they
bring him?;” “Couldn’t they find someone who cared?”75 To avoid such challenges, choose
the client representative wisely and present this representative as the “person” on trial, rather
than a faceless corporate defendant.76
An alternate approach is to shift the focus from the client to the defense counsel. If this
approach is taken, use words such as “we” or “our company” to draw attention to the lawyer
as a member of the team:
If the lawyer is to take the place of the corporate client, some logistics in the courtroom can help establish this point. The associates should be kept far from counsel
table, and communications should be outside the sight of the jury. Then the visual
line-up may have the plaintiff, the plaintiff’s spouse, the plaintiff’s lawyer, the
plaintiff’s lawyer’s associate, and a pile of files on one side; and the defense lawyer
alone with just a few papers on the other side — one sole lawyer on one side against
an array of plaintiff’s legal staff on the other side!77
However, this approach generates greater risk, and most lawyers generally would rather
have a corporate client present. The defense runs the risk of questions from adverse counsel
suggesting that if the company cared about the plaintiff or the lawsuit, someone would have
been present at trial.
H. Client Presence throughout Trial
As noted above, the client representative should be present throughout the balance of
trial, if possible. Advise the client that his or her presence will help the jury to ascribe a
physical and personal dimension to the defendant, which will garner more sympathy and
support than a faceless corporate entity.
Dominic Gianna, The Non-Defensive Opening Statement for the Defense, Opening Statements § 6:7
(Dec. 2007).
75
76
Id. at § 6:12; Aron, supra note 74 at § 29:24 (noting the following scenario: “Lavin was defense counsel for an automobile manufacturer in the case of a seriously brain-damaged college student who drove a
car made by his client into a pole. He presented it as a case against the retired engineer who designed the
mechanism in the car that was brought into question. Lavin said, ‘It was the engineer who was on trial
— seventy-eight years old and retired.’”)
Aron, supra note 74 at § 29:24.
77
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I. Closing Statements
In the closing statement, steps should be taken to confirm the jury’s perception that
the corporation is comprised of persons with names, character, motivations, and feelings.
Emphasize the personal involvement. An illustration follows:
What more could we have done.[sic] We provided our driver, Tom Murphy, with a
vehicle in excellent condition. Tom had been with us for over twenty years. Is there
anything more he could have done? You saw Tom on that witness stand for over
three hours. He was obviously disturbed because he was being required to recall
that night of horror. But, you had to know that you were looking and listening to a
sincere, decent man who knows that he did not run the red light . . . .78
Since plaintiffs will seek not only compensation but also punishment of the corporate defendant in the case of punitive damages, reiterate to the jury that the corporation is comprised
of individuals like the jurors themselves who would be affected by an award of punitive
damages against the corporation. While as a legal entity the corporation is incapable of
suffering, an award of punitive damages harms the employees who depend on the corporation for their livelihood. It also harms stockholders, suppliers, charities, and often entire
communities.79
In suits involving punitive damages, many courts allow fact-finders to be told that they
may consider the financial circumstances of the defendant.80 These courts allow fact-finders
to consider a company’s financial worth in order to determine an amount of money necessary to deter and punish. Imagine plaintiffs’ counsel telling a jury, unaware of any insurance
Fred Lane & Scott Lane, 4 Lane Goldstein Trial Technique § 23:95, Personalization of Client - Corporate Clients (Nov. 2007).
78
Montgomery, supra note 61; Stephen G. Good, Defending Against Punitives, 21 No. 2 Litig. 29, 32
(Winter 1995) (where possible a jury should be told about the human side of a corporate defendant to
demonstrate to the jury that such a defendant is not an “evil empire” or monolithic wrongdoer).
79
Jacob A. Stein, Role of Evidence of Wealth, Stein on Personal Injury Damages Treatise § 4:53 (3d ed.
Oct. 2007).
80
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Jury Bias and the Corporate Client
coverage, to send a message to the client. The client’s total assets and net worth will be
emphasized, although profits and operating margins of most corporations are reflected in a
smaller value.81
V.
Conclusion
In sum, there are many steps that can advance the defense of a corporate client before
a jury. Corporations, while only fictive persons under the law, are actually comprised of
hard-working individuals and are often highly active in the community. Many also encourage their employees to be active. While these entities may carry the stigma of an underdog
when compared with an injured plaintiff, personalizing the corporation by employing
known relational factors can serve to debunk the stereotype of an evil, greedy empire. In
truth, corporations can be and are successfully defended every day. In general, however,
be wary of any media coverage involving the subject litigation or other negativity towards
the client. Know the venue; probe jurors for potential bias during voir dire; and choose a
corporate representative wisely (someone familiar with the factual background of the case
81
See Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768 (Tex. App. 1987) ($3 billion award for punitive
damages in addition to compensatory damages of $7.53 million for alleged tortious interference with a
contract). The appeals court found the punitive damage award favoring Pennzoil excessive by two billion
dollars. The parties subsequently reached a settlement that was approved by the bankruptcy court, since
Texaco had filed for bankruptcy. See also Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007) (punitive
damages of $79.5 million awarded at the trial court based upon jury’s desire to punish the defendant for
harming non-parties to the litigation).
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240