Corporations:  People work for them, people own stock in them, people buy their products and services, and people have serious concerns about their conduct and the power they possess.  Many people figure, it’s hard to live with them, but they wouldn’t want to live without them.  Most people realize that without corporations it would be hard to have the easy access to goods and services which most Americans enjoy.  People want fast food, Game Boys, affordable miracle drugs, high-definition televisions, and 300 horse-power sport utility vehicles, but they also want to make sure all of these things are delivered to them in a way that no one is exploited and the environment is unaffected.  Simply put, most people have a reluctant dependence on corporations.

Are people inconsistent when they behave in a manner that suggests they like what corporations produce, but they have concerns about their ability to trust corporations to behave in a responsible manner?  Having talked with and surveyed literally thousands of people, it has become clear that people really aren’t being inconsistent.  In fact, their fear, trepidation, or concern about corporations is the direct result of their dependence on them.  Most people want corporations to thrive and to continue to produce both jobs and products.  On the other hand, in recognizing one’s individual dependence on corporations, it can be very scary to think that one’s well-being and comfort, is to a large degree, out of one’s control.  Jurors don’t begrudge the corporation a profit, but making a profit off of the public creates special obligations to the public.

What are the implications of this reluctant dependence when your company is faced with litigation?  For some, the implication is that they have to try to not be the corporation, but rather they have to be the “little” people within the corporation.  The old saying is: “Let’s put a human face on the company.”  Coming to such a conclusion is not an inherently bad idea, but it just isn’t enough. “Good people” are only effective when they work in the context of what is seen as a “good company.”   One good person or good corporate face at trial does nothing to make a company with a bad reputation more palatable to jurors.  Likewise, jurors are remarkably facile at separating an individual from the larger ethic of the company.  To be successful as corporations we have to find a way to identify with jurors’ misgivings about corporations, and specifically demonstrate why such misgivings do not apply to this particular company or at least in this particular case.  In other words, we aren’t just good people; we are a company that understands the public’s concerns, and more importantly, behaves in a manner which indicates the company takes those concerns seriously.

It will never be enough to just say we are a good company that cares.  Everyone knows that this is a statement which is easily made and which just doesn’t address the types of concerns jurors tend to have.  Most plaintiffs bring very specific claims; thus, the defendant company must demonstrate it cares by providing examples of real actions which are directly relevant to the plaintiff’s complaints.   Satisfying jurors that they need not be reluctant to support your company is a critical step to getting jurors to listen to the remainder of your case.  Being a truly “good company” won’t automatically win cases, but failing on this count can do so much damage that other defense issues become irrelevant...

Why Do Cases Sometimes Go Bad, Very Bad?

There is typically one consistent factor present in every case in which a jury awards high damages or severely punishes a corporation:  Irresponsible conduct.   Perhaps this sounds obvious?  After all, everyone knows that bad behavior by companies leads jurors to award big numbers.  The thing that is important to recognize is that what I am calling irresponsible conduct in many cases drives high plaintiff verdicts where no causation case exists.  Irresponsible conduct allows employees to win large verdicts against employers when jurors don’t believe any discrimination took place; irresponsible conduct allows community members to get million dollar awards and punitive damages when they can barely get a scientist to support their causation theory; irresponsible conduct allows medical malpractice plaintiffs to win millions of dollars from hospitals when there is no evidence the hospital had anything to do with causing the injury; and irresponsible conduct allows thirty-year-old millionaires to successfully sue their former employer for tens of millions of dollars in stock options even though there was no written contract between the parties.

Understanding jurors’ views of large companies and corporate conduct must go hand-in-hand with understanding jurors’ expectations of large corporations.  Jurors’ views of companies can be summed as a duty to "Protect and Serve."  Despite what may have been taught about "free market" economies and the benefits of capitalism, most jurors want their capitalism with a heavy dose of compassion and control.  Surveys regularly demonstrate that jurors (despite their political orientation) desire more government control of virtually every industry operating in this country (and a little extra control of insurance and petrochemical companies).  Likewise, jurors consistently express a desire for companies to do more for the community and more to protect their workers.  Jurors hold companies to standards to which they would never hold themselves.

Thus, as jurors evaluate a company they are really looking to see if it met their expectations.  In other words, did the company behave responsibly?  Failing to meet this duty taints the way in which jurors view every other aspect of the case.  It is this tainting which leads jurors to find against companies when the company’s case appeared to be otherwise defensible.

The irresponsible company effect was dramatically demonstrated in an employment case which arose several years ago.  It involved an African-American woman who was claiming sexual harassment and race discrimination.  This plaintiff worked in heavy industry and was one of the few women to be working "on the floor."  She had worked at the company for years and had always received positive evaluations until she was terminated for refusing to sign her employee handbook.  She claimed the handbook contained a particular policy which she could not support.  Although she admitted that she understood the ramifications of not signing the handbook, she continued to maintain that she was really terminated because of her race and sex.  Evidence indicated that coworkers did possess what could easily be called sexually explicit pictures, and there were some pictures which one could at least argue were offensive to African-Americans.  The plaintiff could also clearly point to harsh treatment from her coworkers who clearly disliked her.
 
The defense pointed out several important facts: the plaintiff got along fine with everyone until she began promoting and pushing a union on the facility; in the past she had always signed her handbook despite the "anti-union" language; in her many years at the plant she never before complained about the pictures, and when she finally complained to Human Resources the offensive pictures came down.   All-in-all it looked like the system worked, and she had brought her termination on herself.  Jurors looked at this case and said the mistreatment she experienced at the hands of her coworkers had nothing to do with race or sex; it was the union issue that caused their dislike of plaintiff.  However, the plaintiff’s ability to very clearly prove the pattern of childish behavior in the workplace caused even the staunchest defense jurors to want to punish the defendant company.  The plaintiff brought a race and sex case, but jurors wanted her to prevail because the company failed to meet their expectations of a responsible company.

Avoiding the label irresponsible company requires understanding jurors’ expectations of your company.  Consequently, there is tremendous value in studying the way in which jurors assess your company in the context of the case as the first step toward developing trial messages which jurors will find most palatable.  Certainly, expectations will vary from industry to industry, and there will be some cases where no firm expectations exist, but persuading jurors means finding a way to meet the expectations that jurors do apply to your company and your case.  Ignoring what jurors expect from you is perhaps the surest way to guarantee that your company gets the irresponsible label.

So one goal must be to get jurors to appreciate that we value what they value and we care about what they care about.  But how else do you get your company to a position where jurors will see it as identifying with and understanding of their concerns?  Certainly this is a job one could never fully complete, but the most effective way to get started is to consider the amount of knowledge and control that is being shared with the people who work for, or interact with, your company and its products.

Knowledge and Control: Responsible Companies Empower People

Most jurors feel as if they have limited knowledge about what is going on with corporations, and they have even less control over what corporations do.  In many ways, understanding how a company will be viewed boils down to these two key issues of knowledge and control.  One can learn a great deal about the risk of a piece of litigation simply by considering these two key constructs.  What knowledge and control does your company possess on issues for which you are being sued?  What knowledge and control do jurors believe your company should have over these particular issues, regardless of what you actually possess?  And what amount of knowledge and control over the situation can be credibly placed in the plaintiff’s hands?  It is these questions that are most helpful in understanding how jurors will view your company when it is the subject of litigation.  Consider an example.

Consider two distinct (actual) cases involving chemical companies both located in industry towns.  In each case the plaintiff is a person living near the plant and is suing over health effects of a chemical release.  Neither plaintiff is seriously ill, but there are doctor visits, there are diagnosed problems and recommended treatments, there are claims for medical monitoring, and there are also allegations of property damage.  Company A has made diligent efforts to become part of the community, it has fast-action response teams to go into communities after a release occurs, and it calls community members to notify them of what happened and what community members do and don’t need to worry about.  Company B may give some money to the community but the reputation just hasn’t been formed.  Company B (like so many companies) does not have a community response team, and it makes no calls to community members, rather it posts its phone number for people to call if they have concerns.  While the alleged injuries to the plaintiffs may be similar, jurors’ views of the cases are dramatically different.  Company A not only shows that it cares more than company B, by going out into the community, it also collects valuable information (evidence) which helps defend the very type of claim the plaintiff brought.  In this actual case, company A talked directly to the plaintiff after the event, offered medical treatment if needed, offered to pay for doctor visits if needed, and was turned down.   The fact that the results differed for these companies is no doubt obvious, but what is truly amazing is that jury research indicated jurors wanted to seriously punish company B.  What makes company A and company B so different?

Company A made a commitment to giving community members knowledge and control.  Company A decided that sharing information up-front was a lot easier than having that same information dredged up during the discovery process.  Company A knew a good local reputation would not end lawsuits, but it did know that those suits would be less attractive to aggressive plaintiff lawyers if it could establish itself as a good neighbor.  Finally, company A learned the most important lesson about knowledge and control, and that is to give as much of it to potential plaintiffs as possible.  Large companies can never be free from being seen as possessing the lion’s share of knowledge and control, but by embracing the responsibility jurors believe companies do have, company A was able to hand the plaintiff meaningful knowledge and control.  At trial, this company was able to point out that calls were immediately made to the community, and this individual expressed no concern or immediate reactions which would have been consistent with significant chemical exposure.  This plaintiff did not seek the immediate treatment made available by the company, and it was several days before this plaintiff saw his personal physician.  This person never called the company and asked for the reimbursement offered, rather he went to the courthouse. 
         
Interestingly, going to the effort of giving the community knowledge and control not only made the individual case more defensible, it also helped establish the basic premise that this company was a responsible corporate citizen. 

A very similar logic applies within the workplace itself as companies many times must defend themselves from allegations made by their own employees or from contract workers who are providing services on-site.  Some companies have adopted a command-and-control approach to workplace problems.  There are rules which must be followed and which supervisors must enforce.  The problem with such a model occurs, however, when the sexual harassment or race discrimination claim arises and the supervisor knows nothing about it, or worse yet, knows something about it but has done nothing.  In the command-and-control environment, management holds all of the knowledge and control, and much like a parent, is solely responsible for the well-being of the workers.  It is extremely difficult to defend such companies even when the evidence of harassment or discrimination is very weak.  The difficulty comes from the fact that jurors become upset that there was no process in place to identify the problem in advance, and jurors become distressed that management was not adequately exercising its duty to protect workers.

The situation is very different with companies that empower workers to be an integral part of enforcing workplace policies.  Jurors love the idea that workers as individuals have been empowered to protect themselves and their coworkers.  To succeed with this approach workers must be given meaningful knowledge and control, and the company must take their workers’ concerns seriously.  Thus, the "responsible employer" will train workers regarding workplace policy, impress upon them the importance of respecting coworkers, and their specific role in ensuring that they and their coworkers are not mistreated.  Moreover, the "responsible employer" takes employee concerns seriously and makes sure that allegations or accusations are investigated and followed-up to a conclusion.  Being a responsible company doesn’t mean the employee always get what s/he wants, it means there is a process in place to take employees’ concerns seriously.  Simply restated, employer and employee must responsibly exercise their respective knowledge and control.

Assessing the knowledge and control jurors will assign to your company, as well as understanding where your company can pass knowledge and control to the plaintiff, should be a threshold analysis in every case.  It is through this analysis, rather than a discussion over how sympathetic the plaintiff is, that you will really appreciate the risk the case presents. 

Companies Need Specific Actions to Respond to Specific Complaints

Taking the time to understand how your company can get jurors to assign meaningful knowledge and control to the plaintiff also prepares the company to demonstrate it is a responsible company by specifically showing how it did things which directly responded to the concerns the plaintiffs have raised in the case.  Far too often, companies rely on the general good company story, believing that a good image and a good corporate representative will satisfy any concerns jurors may have.  To be effective with jurors, a company needs to specifically demonstrate actions it has taken or policies it has in place to handle the exact type of issues about which the plaintiff is complaining.

The importance of case specific examples were demonstrated in a series of cases involving insurance companies being sued for fraud on policyholders.  In these cases customers were complaining about a product they had purchased from their respective companies.  One company wanted to tell its good company story which involved its status as a mutual company combined with its local community presence; neither of these factors were directly related to the plaintiffs’ claims.  The second insurance company was not a mutual company, but its good company story was specific to the concerns the plaintiffs were raising in the case.  For example, customers/plaintiffs were concerned about representations made about their policies by their agents, and this company could respond by showing its industry leading training program for agents.   Moreover, the company pointed to its policy of answering customer questions through a "1-800" line, and including this number on all annual statements to customers.  The "1-800" line allowed the company to argue that customers could circumvent their agent if they had any concerns about what the agent was saying.   At trial, the company pointed to these, as well as other policies, which made jurors confident that this particular insurance company may not be perfect, but it certainly wasn’t engaging in a program of deception against its policyholders.

Another example of companies meeting jurors’ expectations by delivering specific and case relevant proof that it truly cared about the issues being raised by the plaintiffs came from a large company that was being sued by some of its employees because of workplace injuries.   The plaintiffs were complaining about repetitive use injuries which had developed over many years of work.  The company faced a difficult challenge because jurors tended to automatically conclude that employees deserve to be paid when hurt on the job, particularly when this injury was potentially career ending.  This company, along with some key company witnesses who worked in occupational health and rehabilitation, was able to demonstrate to the jury that it had a comprehensive program to work with employees who were injured, and even better, the company promoted a program in which employees could get ongoing health advice and they had free access to physical training equipment.  Moreover, the occupational health department witnesses could talk about how they had designed work schedules to ensure no one would be overtaxed, and this was specifically targeted at overuse injury issues.  Finally, the occupational health witnesses could discuss numerous success stories in which injured workers were able to become productive members of the workforce after they took the initiative to work with the occupational health department.  Certainly, there were other key messages, and the defendant company had a causation defense, but jurors were truly impressed by the company’s conduct.  Both during jury research and post-trial jury interviews, jurors were incredibly impressed by the company’s efforts and disappointed that the plaintiffs failed to take advantage of all the opportunities the company provided.

Making jurors feel good about your company means getting specific.  Jurors expect companies to think about how their customers might get hurt by their product, or how they may misunderstand or become confused about a company’s product, and they expect these companies to make an effort to remedy the situation.  In jurors’ minds, after all, taking the public’s money is not in and of itself a bad thing, unless when doing so you also take the customer for granted.  Many jurors expect that in exchange for all of that profit a company makes, it must make sure no one is getting hurt in the process.

The One Issue You Cannot Control

For all the things you can do to demonstrate your company is a responsible actor that cares about the public, there is clearly one thing the company cannot directly control at the moment it faces litigation.  The thing the company cannot control is the very likely situation that a significant subset of jurors will possess either very negative attitudes about corporations generally or will hold negative attitudes about your specific industry.   If the last forty years of psychology have taught us anything, it is that firmly held attitudes are very difficult to change, and these attitudes serve as powerful filters for any and all information people consume.  Thus, as jurors are asked to decide your case, it is critical that you appreciate what they think of you, and whether these attitudes and beliefs are correlated to how they will interpret the case facts.

Obviously, understanding the interplay between attitudes and their relationship to how jurors will view your case is an empirical question, but there tend to be some relatively strong relationships which regularly appear.  For example, DecisionQuest’s studies consistently find that people who express a desire for more government regulation of an industry are much more likely to find against that company when it is a defendant in a lawsuit.  The robustness of this finding is surprising to many of our clients, but it makes a great deal of sense given the reluctant dependence many people have on corporations.  If a person feels like s/he needs a company’s product (e.g., prescription drug, insurance, petrochemical products), this same person knows s/he has no independent power to influence how that company treats him/her.  It is people who are concerned about this power differential who look to the heavy hand of government to provide them with some control over the situation.

There is also a subset of jurors that we would categorize as "risk averse."  These are people who have an extremely low tolerance for any risk despite the benefits which might accompany a product.  Jurors who fit into this category will tell us that they believe "one molecule" of a potentially hazardous substance is always dangerous to a person.  They will agree with the statement that a product should be taken off the market if it is safe for most people, but harmful to just a few.  These are people who will say that companies that sell a product to another company have a duty to warn that company even about risks of which the purchasing company is well aware.  Finally, these are jurors who when asked to evaluate an action which hurt people or which turned out poorly, they will readily criticize the actor for not foreseeing the problem before it happened.

The attitude framework jurors bring with them to a case dramatically influences how your company will ultimately be viewed, and as described above, there will be some attitude sets which cause jurors to find against your company regardless of whether your company did anything wrong or caused any harm.  Identifying and understanding the strong predispositions jurors bring with them to your case is critical to assessing the risk of the case, for identifying a strategy to persuade jurors, and for creating a strategy to locate and strike the most entrenched jurors in advance. 

The other thing the company must watch closely is whether any recent events have occurred which would have triggered people to be more conscious of the company and/or its product.  For example, the public certainly had varying opinions about breast implants before implant manufacturers were sued, but the strength of negative attitudes toward implants increased dramatically when afternoon talk show hosts and alleged news reporters informed the public that breast implants were extremely dangerous. DecisionQuest’s own surveys showed that people who expressed strong negative opinions about implants and who believed they were dangerous consistently reached this opinion based upon what they "learned" from the media.  Even more importantly for companies that had to defend these cases was that people who learned about this issue from the media were remarkably resistant to changing their opinion.

Attitudes always affect juror perceptions, but they become much more powerful and much more closely linked to verdict orientation when jurors are constantly reminded about an issue or when the issue immediately affects them.   A recent example of this effect involved rising gasoline prices around the United States.  While a significant percentage of people will always be suspicious of oil and chemical companies, the spike in gasoline prices brought the issue and these companies to everyone’s attention.  In other words, the gasoline issue was "on the top" of everyone’s mind.  Not surprisingly, our discussions with jurors across the country demonstrated that more people wanted the government to step in to 1) control prices, and 2) investigate the companies.  Even more importantly, petrochemical companies suffered from this fallout even when they were being sued in cases totally unrelated to the price of gasoline.  Thus, every case  facing the petroleum industry had to be evaluated in the context of the issues to which the public was being sensitized.
 
Effectively dealing with the issue of powerful attitudes means conducting a probing and relevant voir dire.  Far too many attorneys stand up and ask about bumper stickers and the books people are reading rather than digging into the attitude-sets which actually correlate to a person’s verdict orientation.  DecisionQuest’s own large sample surveys (surveys involving from 300 to 500 respondents) have demonstrated that it is people’s attitudes which help identify the dangerous jurors rather than demographic variables (age, race, income, education) or other "human interest" data (i.e., bumper stickers, books read, magazines or newspapers to which one subscribes).  But focusing on attitudes takes work.  It requires the trial team to think about the attitude-sets which will truly be related to how jurors will see the case, and it requires the attorney to not just talk to jurors, but to be willing to listen and accept some negative comments about their clients.  It may hurt to hear negative information, but it is certainly better to hear it and know, than not hear it and suffer later.

Conclusion

There is no reason to believe that jurors won’t continue to have a reluctant dependence on corporations.  After all, there are no signs companies are going away, and most people wouldn’t want to be without big companies.  Thus, successfully representing companies is going to require paying close attention to the duties jurors impose upon companies.  People want to be entrusted with information and given the power to take care of themselves.  People want companies to anticipate where problems may arise with their products and have some system in place to handle the inevitable problems that do occur.  Essentially, people want companies to protect and serve.  You may believe it is not right that jurors impose this duty on your company, but make no mistake, jurors believe it is your duty.  Consequently, it is at your own peril that you ignore jurors’ expectations of Corporate America generally and your company specifically.