Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

Sometimes a theme captures the public imagination, and a dominant narrative comes into common use as an explanation for much of what is going on. Right now, that theme is corruption, and it is a narrative of powerful people doing the wrong things and keeping them a secret. It is Republicans colluding with Russia over elections and trying to distract the public and knock the investigation off the rails, or maybe Democrats covering up their own Russian contacts and deals. It is entertainers knowing for years about assaults and harassment by powerful men, and enabling its continuation by keeping the details out of the public eye. It is academic institutions hiding years of outrageous conduct in sports, or large nonprofit organizations similarly excusing long-term patterns of abuse. It is corruption, measured in both the crime and especially the cover-up. And it is others — victims, journalists, common citizens — saying they don’t want to take it anymore.

Is that theme filtering into the attitudes of juries when those juries are looking at large institutions and claims of dishonesty? Based on a recent Law 360 article from trial consultant Melissa Gomez, the answer may be “Yes.” Focusing on the “American public’s perception that powerful people and institutions use their authority to please themselves to the detriment of others,” she reports on the recent public focus on corruption as well as the data from her group’s mock trials over time. The result? Jurors, she says, are becoming less prone to compromise and more likely to want to “Send a message” with a high-dollar verdict. Comparing her data to our own, I believe that there is something to that message, but the skepticism of a jury sensitized to the corruption of large organizations also is not a new phenomenon. In this post, I will look at both what seems to be new as well as what hasn’t changed.

The More Things Change…

Signing off with Bob Dylan’s “The Times They Are a-Changin,’” Gomez focuses on data pointing toward a sudden change. “Since the start of 2017,” she writes, “I have witnessed markedly less willingness by jurors to compromise with one another, resulting in more hung juries (e.g., the Cosby and Menendez trials).” She continues, “I have also noted an increased desire for verdicts to ‘send strong messages.’” Backing that up with a number of recent anecdotes, she also turns to her company’s data, comparing survey responses collected from mock trial jurors in 2017 to earlier responses from 2011 to 2015. The results indicate, in some ways, a souring of views on corporations, with, for example, five percent more of the 2017 respondents (48 percent) saying that corporations place profits over safety. While that difference didn’t reach statistical significance, a couple that did showed an increase in those believing that companies lie about product safety, and a significant decrease in those who feel that damages awards are too high.

The More They Stay the Same…

But the question is whether those changes reflect a clear trend toward greater bias against large companies in litigation or a stronger desire to send a message. One result of being stuck in history is that we always tend to think that our times are very unique. It is true that there is a current and substantial upswell in public attention toward corruption. But it is also true that we’ve had great controversies to focus on in the past, from Enron all the way back to Teapot Dome. There has never been a shortage of reasons to be suspicious of large organizations, government institutions, and powerful individuals.

For the last decade, Persuasion Strategies has been systematically collecting data on public attitudes toward corporations, focusing most recently on seven questions (the Anti-Corporate Bias Scale) that have been shown to work as a statistically-valid predictor of bias in a variety of trial situations. Here is one example of the year-to-year data we have collected from national jury-eligible samples:

As you can see, the levels are very high but also very consistent over time. The other six questions show much the same pattern: Around eight in ten people are likely to agree that large companies tend to be dishonest, bear a greater burden, and should see stronger regulation and control.

Ultimately, Gomez is right that the current headlines have raised the salience of power and its potential to corrupt. That means that it is a good idea now, as it has been in the past, to focus on perceptions of that power and to account for it in your jury selection and case messaging strategies. As she concludes, “When litigating cases with powerful people and institutions, it is imperative to take a step back and reflect on where the power lies in a case, and how it may be perceived.”

Other Posts on Anti-Corporate Attitudes: 


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