May 7, 2012

In Today’s Energy Litigation, Drill Beyond Attitudes

By Dr. Shelley Spiecker:


Here in America, we could be said to have a love/hate relationship with energy. We love the energy itself, at least when it is plentiful and cheap. But we often hate the process of developing it, and by extension, those who do the developing. With the current election season drawing on populist themes, and with gas prices still high, big oil can end up being as distrusted as big government. Based on the tenor of today’s public discussions, you may believe that anti-energy industry bias runs rampant in public perception. However, those of us who assist energy companies in litigation know anti-industry bias ebbs and flows. Various segments of the population also have dramatically different takes on the industry. 

In a 2011 post, I identified four key factors that work to an energy defendant’s favor in the courtroom: the economic downturn, corporate desensitization, the influence of legal reasoning over ethical determination, and the interjection of personal responsibility. Those four factors are still in play today. Based on a recent Persuasion Strategies national survey, this post examines an additional factor, the role of demographics and juror experience, that can provide an even greater advantage to today’s energy defendant.

Don’t Be Too Eager to Drill Down Into Anti-Oil and Gas Attitudes

Juror demographics and experience as a strategic factor you might be asking? Usually, we’re in agreement with consultants and other social science researchers who say that if you have a choice between looking at the surface of demographics and common experience, or drilling into the underlying attitudes, then the best choice is the latter. We typically advise, if you’ll forgive the pun, “Drill, baby, drill.” We’ve written recently about the reasons for that, and today’s effective trial lawyers know that juror attitudes and opinions are most predictive of juror decision orientation. And that is certainly true. But there are always exceptions. In an industry where the majority of a given venire hold attitudes against your client, delving deep into jurors’ attitudes more often than not simply shines a light on the minority of the venire that is likely to favor your client.

Results of a survey we completed last month of a random nationwide sample of 400 jury-eligible individuals illustrate the predominance of anti-industry sentiment and are consistent with what we have observed over the past decade, including:

  • 68% of prospective jurors feel it is “somewhat” to “very common” for oil and gas companies to harm the environment for economic gain.
  • 93% are “somewhat” to “extremely concerned” about gasoline and natural gas prices.
  • 86% feel an oil and gas company should be held “somewhat” to “much more” responsible than an individual in a dispute.
  • 76% feel an oil and gas company would “often” to “almost always” lie if it could benefit financially from doing so.

It wasn’t all bad news however, and some of the results were more favorable to the energy industry. This mirrors what we have observed anecdotally in focus group research and interviews with jurors after serving on an energy case. For example, in a recent survey, we found 45% reporting a favorable opinion of the industry and 52% believing that a case against an oil and gas company “often” to “almost always” has merit. An article exploring some of these more favorable findings will be forthcoming by Persuasion Strategies this summer.

Instead, Rely on Some Demographic and Experiential Proxies To Guide Your Voir Dire

With roughly three-fourths of any given venire holding opinions against the industry, how do you approach jury selection protecting your minority of “good” jurors? The answer? Use reliable demographic and experience indicators to know which jurors are likely to hold unfavorable and favorable opinions of your energy client. Those factors can serve as safer proxies for the underlying attitudes that you are trying to target.

Our recent research identified four statistically significant, reliable, and valid predictors of anti-energy industry bias.  Specifically:

  • Political affiliation. For example, jurors who generally vote Democrat in national elections are significantly more likely to believe that “oil and gas companies commonly harm the environment for economic gain.”
  • Supervisory experience. Jurors with supervisory experience are significantly more likely to believe that oil and gas companies “sometimes” to “almost always consider the environmental impact of their company practices.”
  • Experience of the impact of the energy industry in one’s community. In a survey with 34 questions devoted to the impact of juror demographics, experiences and opinions on sentiment toward the oil and gas industry, this question was the key predictor of juror opinion orientation. Jurors reporting that oil and gas companies have had a “somewhat” to “very positive impact on their community” are significantly less likely to believe “oil and gas companies are more prone than other companies to conspire” and more likely to feel that the industry “has treated the public somewhat” to “much better than five years ago.”
  • Gender. Should you find yourself in a situation in which you do not have access to information on the impact of the industry on the community, gender can serve as a reliable substitute. Males, for instance, are significantly more likely than females to report that “oil and gas companies have had a positive impact on the community” in which they live.

So, the next time you find yourself facing a venire, consider starting with one or more of these four indicators and avoid asking questions of jurors with these characteristics. All things being equal, jurors who are males, conservatives, and those with supervisory and positive industry experience are likely to be the sources of the most moderate or positive sentiments about energy companies. Instead of helping your adversary by shining a light on those jurors, go to those jurors with indicators of unfavorable bias and concentrate your attitudinal questioning there in order to prioritize your peremptory strikes.


Other Posts on Energy Litigation: 


Photo Credit: Jaimito Cartero, Flickr Creative Commons (Photo of a monument, “Tribute to the Rough Necks,” Cindy Jackson, Signal Hill, CA)


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