March 5, 2012

Voir Dire at the Intersection of Your Case and Their Life: For Energy Litigation, that Means Gas Prices

By Dr. Ken BrodaBahm

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It is a reliable maxim that your voir dire should target the experiences of your panel that bear most closely on your case, because that will be the source of the most relevant attitudes.  That seems obvious, but I find that litigators often focus on a level that is more specific to the case and more distant from common experience:  for example, asking in a construction case what they think about “design/build contracts,” instead of asking what they think of the guy who comes to fix their deck.  With the recent almost-trial in the BP gulf spill litigation, along with increasing attention to rising gas prices, this maxim reminds us of an important area for voir dire in oil, gas, and other energy cases.  Generally, your case will have little to nothing to do with the price of gas, but that is still the way that “big oil” intersects with the common life experiences of your panel. 

Jurors can act as though the prices they pay are set using a large dial that is either on the President’s desk (during campaign season) or in the “big oil” headquarters — you know, the common office that they all share.  That may be a wee bit of an exaggeration, but having watched a great many hours of mock jurors deliberating on energy cases, it isn’t too far off the mark.  The idea that the market sets prices, influenced by events like the recent conflict with Iran, takes quite a bit of explanation.  But, true or false, that perception of control plays an important role in determining how jurors view the power and the responsibility of the company in a variety of contexts.  This post looks at gas pricing as an illustration of daily life’s influence on litigation attitudes and provides a recommended series of questions for oral voir dire on the topic. 

What Do Jurors Conclude From Gas Prices? 

The President gave a speech a couple of days ago in New Hampshire in which he gamely tried to convince people that he doesn’t set gas prices, and also stressed that there are no magic bullet solutions on fuel prices from either industry or government.  Still, perhaps as part of the Republican candidates’ search for an issue, other than jobs and contraception, gas prices have dominated the discussion leading up to tomorrow’s Super Tuesday primaries.  Though these attitudes rise to the top whenever there is a geopolitical or seasonal price increase, the concern over industry power is always there.  Usually, a legal case involving an energy company is sufficient to cue those attitudes. 

The attitudes we most often see are: 

  • Gas prices are too high and corporations and governments don’t understand the strain this places on average people.
  • Gas prices are too high due to greed.  They are consciously set by some entity just to make more money. 
  • Even when obvious events like a hurricane or an international crisis might explain the price of fuel, companies are still presumed to be taking advantage of events in order to pile on the profit.
  • All are guilty, with few distinctions being made between big, mid-sized, and small energy companies.  

Potential jurors with these attitudes can easily apply them to issues that extend far beyond pricing.  For example, a company committed to that kind of greed is more likely to break a contract, renege on a royalty, apply lax safety standards, and allow environmental contamination to persist.  For that reason, in many cases it will be a good idea to voir dire on attitudes toward gas prices as a way of easily accessing their deeper attitudes on the power of the companies themselves.  The following is one example of how to broach the subject in attorney-conduct oral voir dire on behalf of an energy company.  

Sample Voir Dire

My client is not Exxon or BP or Shell, but it is a big company that finds, extracts, and sells petroleum products.  It is what some people might call “Big Oil.”  So with gas prices where they are, I have some questions about how you might view an oil and gas company.

How many of you have paid attention to gas prices over the past few months?  (This is just a warm- up question, expect most to raise their hands). 

What is your reaction to gas prices?  Why do you think prices are high?  (This open-ended question might elicit some of the more specific themes below, allowing you to bridge off of a panelist-supplied comment).

People may be closer to one of two different points of view on the honesty and responsibility of big oil and gas companies.  Some people would be closer to the view that oil and gas businesses are more likely than other companies to be dishonest or irresponsible.  Other people would disagree, believing that while any business can be irresponsible, oil and gas companies are not necessarily better or worse than any other company.  Knowing that you may be somewhere in between, which of the two views is closer to your own?  (This question is designed to divide the group and create a strikeable minority of those who are a greater risk). 

How many of you would be closer to the view that oil and gas companies are more likely than other companies to be dishonest or irresponsible?  (Note, but don’t follow up:  These are your strike candidates).

And how many of you would be closer to the view that oil and gas companies are not necessarily better or worse than any other company?  (As long as these panelists are more than a strikeable number, it is safe to follow up). 

Mr. X, why would you say that?

Mrs. Y, do you agree with that?

Let me ask some additional questions on oil and gas prices.  

How do you believe that oil, natural gas, or gasoline prices are determined?  (Again, the open-ended question might allow you to follow up naturally on a panelist’s answer). 

People tend to believe that they are either set by companies acting together, or that they are determined through supply and demand and other market forces.  How many of you are more likely to say that prices are simply set by the companies?  (Note, but don’t follow up:  These are your strike candidates).

And how many of you are more likely to say that they are determined through supply, demand and other market forces?   (Again, as long as there is an unstrikeable number responding, it is safe to follow up with, why do you say that? or how do you know?)

Is anyone here so opposed to oil and gas companies that it would affect your consideration of this case which is between an individual and an oil company?  What effect would it have?  How difficult would it be for you to set aside these views on oil and gas companies? 

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Other Posts on Energy Litigation: 

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Photo Credit:  bitmask, Flickr Creative Commons

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