November 2, 2009

Steward Your Product

by: Dr. Ken Broda-Bahm

Broda_Bahm_Ken_88_120 From exploding automobile gas tanks to faulty cribs, the history of jury verdicts is littered with cautionary tales of what can happen when a company fails the perceptual test of protecting its customers and standing behind its product.  While these lessons apply most obviously to products liability, a parallel concept applies to any company that sells a product or delivers a service: The company is either a good steward or a poor steward of the goods it brings to market, and jurors’ assessment of that will determine the company’s credibility and fault.  Comments from recent interviews of jurors who had recently completed their trial service has reminded me of five rules or themes that companies should use in order to, ideally, avoid litigation, but also to defend themselves should they find themselves the target of a lawsuit.  The rules may boil down to common sense, but after all, the advantage of common sense is that it is so…well, common.  These are the five that stood out in recent interviews:

1.  Know Your Product

The company should have researched all possible dangers posed by a product.  Armed with hindsight, jurors can be harsh:  “I think they were lazy… they did not do the research they should have done…they didn’t steward their product.”

2.  Communicate Clearly

Both internally, and externally, the company should clearly share what they know about the product.  When they don’t, the responsibility is lifted from the users’ shoulders:  “They didn’t talk to customers… nobody knew anything.” 

3.  Warn in a Way that is ‘Idiot Proof’

While jurors outside the context of a particular case tend to scoff at coffee cup warnings, once they become more knowledgeable about the dangers of a specific product, they are more apt to appreciate a need to warn clearly.  As one juror said, you “need to make it idiot proof,” and as another said “there should be no question” of how a product can be appropriately used.

4.  Take Proactive Measures

The company should do more than simply react when it hears of problems.  Instead, the company should take proactive steps to avoid dangers.  In one case, jurors faulted a company for not specifically investigating use conditions after a large-volume sale:  “I didn’t see any desire to do follow-up.”

5.  The Measures You Take Should be Proportionate to the Danger Posed

In the same case, jurors clearly appreciated the product: “I think it is an amazing product,” one said, and another called it a “brilliant product.”  But they also felt that the product carried some obvious dangers when used incorrectly.  As a result, “their stewardship has to be stepped up a bit when you are dealing with something that is potentially dangerous.”

Jurors voicing these themes or similar could be found in virtually any case that involves an attack against a product or a service, and a successful litigant will take them to heart. 

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