Jurors often connect empathetically with the “key players” involved in a lawsuit. For commercial cases, however, this occurs much less frequently. General commercial litigation involves virtually every type of dispute that can arise in the business context, including breach of contract cases, partnership/joint venture disputes, class actions, business torts, civil RICO claims, breach of fiduciary duty allegations, and shareholder issues. It is by far the exception rather than the rule that a juror would have some type of experiential connection to any of these causes of action. Most jurors are employees or small business owners, not high-powered managers, not large shareholders, and certainly not executives of multi-million or billion dollar companies. At first blush, a majority of jurors would not be able to readily understand a company’s financial statement, let alone put themselves in a corporate executive’s shoes.
Verdicts seemingly at odds with the evidence in commercial cases appear to materialize because key witnesses have failed to connect with the jury on a personal level. Many times lawyers and business types are impressed with the resumes and credentials of expert witnesses. Laypersons, however, have a different perspective. My research shows that jurors’ perceptions of how knowledgeable, competent or credentialed a witness is do not correlate with their beliefs about likeability, credibility and honesty. Jurors might be more interested in what this witness does in his/her free time than whether he received dual-degrees from an Ivy League institution. What lawyers and corporate leaders frequently find impressive is actually a negative in the eyes of the jury.
Many plaintiff cases will be wrought with emotion. The genre of rhetoric used by plaintiff lawyers in these cases consists of vernacular such as “misleading”, “hiding”, “deception”, “omitting”, “cooking the books”, “misrepresenting”, “covering up”, “shady”, and “crooked”, among other terms. Many times, jurors’ negative attributions of corporate executives have rendered them unable to objectively evaluate the evidence. Jury research shows fighting this emotion with pure logic and merely “the facts” is not successful. The same kind of emotional hook needs to be used against plaintiffs.
Personal responsibility should be turned on them. For example, the plaintiffs took a chance, stuck around and gained an enormous amount of money when the going was good, but when things went awry they did not accept the consequences. The plaintiffs wanted all of the profit with none of the work and none of the risk. Showing that plaintiff partners should have known or asked more specific questions resonates with jurors who already hold corporate players to higher standards due to their level of expertise and familiarity with the business culture. Related, one effective emotional appeal is that plaintiffs are not victims. In these cases they can often be painted as opportunists who are using a lawsuit to get rich quick, or make money in a court of law that they didn’t make in the business world. A sophisticated and business-savvy plaintiff always changes the equation.
Confusion typically works against defendants in these cases, and confusion is the norm. Most jurors know at least a little about toxins, workplace etiquette or insurance, but alleged corporate misfeasance is foreign terrain. While ordinarily, confusion by the jury works against the party with the burden of proof, commercial litigation is different. If the jury is confused by the intricacies of financial transactions and business dealings they tend to blame defendants for purposefully causing this confusion. A typical juror comment is “they tried to confuse us so much and it worked so they must be hiding something.” I have seen mock jurors trying to decipher a Partnership Agreement and sometimes the more they read it the more confusing it becomes. Confusion is doubly dangerous in these cases since you’re not only not getting your point across but also causing jurors to think you’re being deceptive.
Most of the time, corporate litigants are not going to convince jurors their clients are “good guys” and squeaky clean. Jurors can find corporate defendants not guilty of wrongdoing and still not want to spend time with them at a cocktail party. Extolling the moral virtues of your client can backfire and cause jurors to feel you are dishonest.
As I have written about before, lawyers mistakenly equate an apology with an admission of guilt. Jurors see a distinction. Therefore, if done the right way, an apology can go a long way toward reassuring jurors you’re not shirking responsibility. How to apologize is very important as a botched or disingenuous one is worse than none at all.
Jury research shows that successful business persons are presumed to have a high degree of business acumen. The typical reasoning is that such a person did not attain a position of great responsibility and reward by ignorance. With highly knowledgeable witnesses possessing specialized skills where ignorance may seem like a plausible explanation it is usually not accepted by a jury. Where a client is convinced that claims of ignorance will be accepted, a focus group brings to the client a greater sense of reality.
Jurors have a heightened interest in damages in these cases. While questions of corporate maneuverings involve complex terms and concepts that jurors are not familiar with, all jurors know the difference between dollar amounts, so we are in familiar terrain.
What are the implications for jury selection? Lawyers should be careful of people with heightened interest in financial matters (i.e., those who read the business section of USA Today). Those who know or who think they know a little more than the rest will become leaders in deliberations. Learning about them is important. I suggest lawyers always take a good look at people who supervise others, education level, along with attitudes toward government regulations, individual responsibility and ethics.
Plaintiff jurors tend to have been asked at some point to give up benefits or take lesser compensation, do not believe business executives share their values, and feel if a company could benefit financially by lying it would do so. It is also crucial to know about a juror’s history of investing and personal dealings with the stock market. What is a juror’s perception of ethics in business dealings? Do they have experience with contracts? Have they ever been “burned” by a contract or taken advantage of in a business (or personal) situation where the “sting” is still felt? Has anyone ever accused them of not living up to a contract? I also would want to ascertain which jurors exhibit a comfort level with numbers and seem willing and eager to learn about business concepts in general.