The Corporate Litigant: Tips For Addressing Juror Bias Toward Corporate America

Corporate litigants must be vigilant in their efforts to address anti-corporate sentiments among potential jurors. These biases often occur on a subconscious level and some jurors may be unaware of their existence, making these individuals more dangerous when it comes to flagging them as potential “problem” jurors during voir dire.

Our experience and research demonstrates to us that the following three strategies can help mitigate anti-corporate sentiments:

1. Successfully Uncover Anti-Corporate Biases During Jury Selection. It is crucial during jury selection to identify potential jurors who harbor negative feelings towards corporations (see “Breaking Down the Barriers to Bias: How to Uncover Bias During Jury Selection” for strategies to encourage jurors to admit their biases during voir dire). Our analysis of focus group jurors in cases involving corporate parties reveals that jurors’ decision-making is often correlated with various demographic and value-belief characteristics. These trends vary from case to case, but several seem to be constant, regardless of the subject matter.

For example, when dealing with corporate litigants, jurors’ decision-making is often correlated with education level. Jurors with less formal education typically feel less secure in their jobs, lack experience working in a management role, occupy “blue collar” or low-wage positions, and/or have changed jobs frequently. As a result, jurors with less education often exhibit heightened anti-corporate attitudes.

Interestingly, our research suggests that jurors who have been hit hardest by the most recent recession are not necessarily a corporate defendant’s worst nightmare. To the contrary, we have found that jurors who were severely impacted by the most recent recession or housing crisis were often less sympathetic to a plaintiff’s allegations against a corporation and tended to respect practical or financially conservative decisions on the part of larger corporations, such as pay cuts.

In many cases, political affiliation is a strong predictor of anti-corporate bias. Jurors who identify as Democrats most frequently display the greatest levels of anti-corporate bias, while Republican jurors demonstrate a proclivity toward a corporate defendant, regardless of any preexisting anti-corporate stereotypes.

Age may also be a predictor of corporate biases, with jurors between the ages of 20 and 35 often voicing strong anti-corporate stereotypes, while older jurors hold a more favorable view of large corporations and their role in both the economy and the community.

Another observation is the correlation between jurors’ professions and their opinions of large corporations. Our research reveals that jurors who work in fields related to the sciences are more inclined to strictly adhere to the nuances of jury instructions and the law, often resulting in more conservative, pro-defense verdicts. On the other hand, we have found that the most vocal pro-plaintiff jurors in cases involving a corporate defendant often work in fields related to sales, social work, and the arts.

While the goal of seating a jury entirely free of anti-corporate bias is an unrealistic one, we believe that exploration of jurors’ employment history and beliefs about large corporations during jury selection can greatly minimize the risk of seating “problem” jurors.

2. Build A Positive Corporate Image. All too often we forget that a trial is an opportunity to educate jurors. When representing a corporate litigant, it is important to develop a positive corporate identity for your client. Aim to encapsulate this in a few powerful demonstratives that can be used during your opening statement. The goal is to show the jury how your client differs from existing stereotypes of corporate America.

The use of effective demonstratives is critical when educating jurors about your client’s corporate identity. Providing jurors with concrete examples that support this positive image will help prevent them from relying on their preconceived notions of large corporations, as they examine your client’s actions and intentions. Your demonstratives should inform the jury about the positive public and civic acts that your defendant has performed and the charities with which it is involved. Discuss the number of jobs the corporate client has created, the number of franchise owners involved with the company (where applicable), and other facts that help jurors view your client as more than just an enormous, faceless machine. Additionally, demonstratives should emphasize your clients’ value to society. A simple demonstrative can humanize a corporation and its employees by portraying them as fellow citizens.

It is also important to educate jurors about your client’s history. Stereotypes often arise as a result of a lack of information. Early in the trial, provide jurors with a timeline that outlines the company’s history and development. The timeline should highlight the most notable steps, accomplishments, and, in some cases, struggles, that allowed your client to become the powerful corporate force it is today. This type of demonstrative can help to humanize a corporate litigant, as it often breaks down a façade of power and success. By providing a more personal window into your client’s past, you will help jurors see your client as more than “just another large corporation.”

3. Putting The Right Face On Your Client. Though it is not always possible to select specific employees to serve as ambassadors for the corporation, there are still several steps you can take to humanize the corporate defendant through its representatives. Ideally, these representatives should be charismatic, likeable, and credible, thereby engendering juror empathy with the real people behind the company. It is easy for jurors to despise or punish a faceless mega-corporation, but it will be more difficult for them to do so when face-to-face with real, likeable human beings.

It is important to be cognizant of the determinants jurors use to assess a witness’s credibility. Extensive witness preparation will be critical when working with any company representative in order to put the right face on your client. Those selected as company representatives must not only be prepared to testify about the subject matter of the case, but also about their personal knowledge of the company’s values. These individuals should embody the positive corporate image discussed in the second point above. Their individual values, goals, and achievements should reflect those of the greater corporation. Furthermore, it is critical to leverage a company’s values and characteristics when justifying any scrutinized behavior of the individual representatives. In this way, the testimony of these individuals should make clear that, given the extent to which they live and breathe their company’s efforts and values they would never jeopardize the greater corporation by committing a personal misdeed.

The article above is an excerpt from, “The Corporate Litigant – Tips for Defeating Juror Bias Toward Corporate America.” Read the full article here, which includes a complete list of questions to ask a potential juror during vior dire, and examples of simple demonstratives to emphasize your client’s image.