By Jan Mills Spaeth by F0VftI


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                              THE 6 STEP CORPORATE DEFENSE

                                      By Jan Mills Spaeth, Ph.D.,
                                       Advanced Jury Research

This article was published in THE WRIT, the official publication of the Pima County Bar
Association, in September, 2005. This is a brief synopsis of a research study.

        This synopsis was based on an excellent article entitled “Corporate Defense In A
Skeptical Age,” by Persuasion Strategies, published in The Jury Expert, July, 2005. The
information from these sources was based on a 2003 and 2004 survey of 1005 jury-
eligible participants. (Also see “Re-channeling Juror Anger.” By M. Burr, Corporate
Legal Times, August, 2004.) The consultants with Persuasion Strategies developed an
insightful six-step approach to corporate trial strategy, which will be summarized here.

         Research over the past two years, particularly after the Enron scandal, has shown
that most people in this country have high demands and low expectations for corporate
behavior. Approximately half of those surveyed strongly agreed that if a corporation is
sued, the case must have merit. In addition, 78% agreed that a jury trial is an effective
way to address corporate wrongdoing. Thus, portraying a corporation in a positive light is
critical to damage control. This leads us to Step 1 in the strategy process.

       1. Embrace a Positive Persuasive Burden. Although legally the plaintiff has the
burden of proof in a civil case, jurors do not see it this way. This is now legal fiction.
Jurors expect corporate defendants to demonstrate that their actions were correct and
ethical. They expect corporations to provide counter arguments to the plaintiffs’ claims.
In fact, 65% of the juror eligible respondents held corporations to a higher standard for
responsibility than individuals. For example, most respondents believed that corporations
are more obligated then are individuals to ensure that the terms of agreements are clear.
It is imperative that corporations show that they behaved honestly, ethically, and
responsibly to overcome jurors’ learned distrust of today's corporate litigants.

       2. Play to a “Tough Crowd”.           In addition to setting higher standards for
corporations, today's jurors often begin with a presumption of corporate wrongdoing. Of
those surveyed, 60% disagreed that business executives share their values. Worse, in this
2004 study, 77% agreed that corporations would probably lie if this was financially
beneficial to them. In the 2003 study, 82% agreed to this. (Juror response was more
extreme immediately following the Enron scandal.) Simply put, there are not enough
peremptory strikes to entirely eliminate this “tough crowd”. To the strong plaintiff juror,
“values are king”. Corporate defendants must assume they are playing to a critical
audience, and can no longer claim “We followed the law”. Now, the defense must go the
extra mile and say “We followed the law and it was the right thing to do”.
       3. Find Your Best Yardstick. Corporate defendants today can not simply argue
“We behaved well”. They must answer the question "Compared to what?". The well-
informed citizens of today have plenty of bad examples to compare defendants against.
Jurors want to know how defendants compared to their competitors. They also want to
know if government regulations were met. Even though most jurors believe that
government agencies need to police corporations more, the decisions of agencies such as
EEOC and OSHA still carry a good deal of weight. If corporate defendants can show that
they not only met, but exceeded regulatory or industry standards, jurors will view them in
a more positive light.

        4. Combine the Best of Ethics, Law and Good Business. It is not enough these
days to be legally correct if ethics are in jeopardy. Jurors are torn between whether it is
best to be ethically right or legally safe. Corporations make the best impressions on juries
when they can combine these two issues. Based on heightened juror expectations and
skepticism, however, jurors are more likely to “buy” the defense position if ethics and the
law coincide with good business practices. Jurors are suspicious of altruistic actions by
corporations if ethics are inconsistent with good business. After all, corporations are in
business to be profitable.

        5. Take Responsibility. Without necessarily admitting fault on critical issues,
corporate defendants can win points with juries by simply and sincerely owning up to a
small measure of responsibility. This is in opposition to the “deny everything” defense,
which can fail miserably based on jurors’ refusal these days to believe that any party in
the case is completely above reproach. The dividend of this can be greater credibility and
trust, and lower damages for corporate defendants.

        6. Distribute Responsibility. A “silver lining” to the skeptical attitude toward
corporations is that jurors may expect plaintiffs to be more careful when dealing with
corporations, and to take steps to protect themselves. If plaintiffs could have anticipated
unfair dealings, and failed to avoid harm, they have lost some juror sympathy. Jurors
become desensitized to corporate bad acts with each new Enron or Tyco disgrace, and can
expect plaintiffs to have anticipated the negligent behavior. As long as defendants have
answered the critical question, “What did we do well?” the stage is set for jurors to take a
realistic look at the plaintiffs’ responsibilities as well.
      In summary, corporate strategy today needs to involve embracing a persuasive
burden, planning for a more skeptical jury panel, comparing the defendant positively to
government and/or industry standards, taking and distributing responsibility, and
emphasizing all along that the corporation did the right thing for the right ethical, legal
and business reasons.

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