By Dr. Ken Broda-Bahm
A Persuasion Strategies/K&B National Research Survey
We are in an election season, and that is a good reminder of the fact that attitudes change. Maybe not fast enough to feed the 24-hour news cycle, but definitely fast enough to influence the litigation climate between cases. Products liability litigation in particular, is heavily influenced by jurors' preexisting attitudes on personal responsibility, their specific beliefs about safety, product labeling and testing, as well as the way they see the relationship between large corporations and individuals. These are all attitudes that vary by venue and over time. Not having your finger on the pulse of these shifting opinions can pose a danger to products litigants. While jurors are definitely committed to hearing the evidence and basing a decision on the particular case instead of their generalized attitude, the outlook they come in the door with will still determine your starting point in trial.
This post is the first of three focusing on our own original research. Persuasion Strategies worked with the recruiting and survey company K&B National Research to conduct a nationwide telephone study of 406 jury-eligible participants to measure attitudes on a number of topics relating to products liability defense litigation. In June, 2012, we asked participants about their views on product testing, labeling, and legal responsibility. We also asked survey participants to report their leanings on a number of brief litigation scenarios. Part II of the series will focus on a few emergent factors characterizing those jurors who pose the greatest risk to the product manufacturer or seller, and Part III will focus on the special role of anti-corporate bias in mediating the relationship between individuals and companies in products cases. Before getting into that, however, this first post provides an overview of the survey results, as well as the general takeaways for products defendants preparing messages for trial.
One important note is that for all of the findings below, we are measuring reported attitudes not behaviors. That is, someone can say they read product labels all the time, but that might be saying more about social desirability bias than it says about their label reading practices - in actuality they might skim or ignore labels like the rest of us. But that doesn't make the expressed attitude unimportant. Even if it is biased in the direction of desirability, the attitude can be critical to the extent that it helps frame the expectations that jurors bring into the courtroom and apply when evaluating the parties.
Among the general conclusions of this survey, the following are the most notable:
How Well Do We Test?
Survey Finding: There is nearly an even split on adequate testing of products. In our survey, 47 percent say that products tend to be "often," or "almost always" adequately tested, while 48 percent say that they are "rarely," or "almost never" adequately tested.
Trial Strategy Recommendation: Measure attitudes on testing either in a supplemental juror questionnaire or in oral voir dire. Even when your case doesn't involve a direct controversy over the level of testing, a panelist's opinion about product testing can be a window into their views on how much responsibility the company should have, with those supporting greater testing also being more likely to hold the product manufacturer responsible.
Do We Follow Warnings?
Survey Finding: About two-thirds feel that consumers follow safety precautions. In our survey, 65 percent reported that consumers "often" or "always" follow recommended safety precautions when using consumer products.
Trial Strategy Recommendation: This possibly exaggerated view of how often consumers follow precautions can be beneficial. When defending a product against a plaintiff who may not have fully followed precautions, normalize the experience of reading and following warnings. If nearly everyone does it, then the plaintiff is in an exceptional class of those who don't. The more unusual or atypical the plaintiff's behavior, the easier it is to attribute responsibility.
Do We Prioritize Safety or Performance?
Survey Finding: Companies and consumers are both seen as prioritizing product performance over product safety. In our survey, 59 percent reported typical manufacturers prioritize product performance, compared to 36 percent who say they prioritize product safety. A comparable result applies to consumers, as 61 percent say consumers prioritize performance compared to 36 percent say they prioritize safety.
Trial Strategy Recommendation: In addition to directly finding out who believes that companies underemphasize safety, it is also a good idea to undercut that dichotomy. If making the product "better" is the same as making the product "safer," then the incentives run in the right direction and jurors have a good reason to believe the company made the product as safe as possible, not because they are good citizens, but because they have a profit motive to do so.
Do We Read Labels?
Survey Finding: Fewer people claim to read labels now than in 2010. Two years ago, fully 57 percent claimed to "read the label word for word," and today that percentage is down to 37 percent. It may be the effect of the profusion of "terms" that we all have to agree to these days whenever we open a new program or install a new app -- just clicking "I agree" and ignoring the terms is probably the default for many to most of us. There could also be a political source for this difference, as we also found that those who generally vote Republican are also more likely to admit to "skimming" or ignoring product labels, perhaps being more comfortable in a "personal responsibility" mode.
Trial Strategy Recommendation: Take jurors' statements about their own label reading with a grain of salt, but understand that they'll still be willing to apply that idealized view when they evaluate others. Some will say, "Well I would have read that label..." and others will say, "I may not have read it, but if I didn't I wouldn't be suing," but all will to some extent use themselves as the standard in evaluating others, the "Golden Rule" notwithstanding.
Do We Trust Large Companies?
Survey Finding: We have written extensively on anti-corporate bias, based on a decade of our own research on the concept. Tracking the attitudes year-to-year has allowed us to recognize changes when they occur. In our 2012 survey, for example, we noticed a lessening of anti-corporate bias in a few areas. For example, 61 percent of our current respondents believe the government favors large corporations over ordinary Americans, compared to 74 percent last year. Just 29 percent reported that there are "too few" lawsuits against large corporations, compared to 47 percent in 2011. This somewhat better picture on anti-corporate attitudes may be a sign that, at least for part of the population, the campaign rhetoric recasting large companies as "job creators" instead of evil monoliths is gaining some traction and mitigating some of the bias.
Trial Strategy Recommendation: Measure your potential juror's anti-corporate bias. We have developed a scale that does exactly that and made it available for free (you can download it here). That scale, particularly when supplemented by the information that will be in Part III of this series, will be useful in identifying the jurors that are likely to be hardest on a products defendant. Apart from jury selection, however, it is also important that you adapt your message in trial. Given that a clear majority still distrusts large companies in general, some of those people will be on your jury. For that audience, you need to convey the face of the company and show the concrete ways that it differs from their view of a "typical" corporation.
Even with the moderate changes that we've seen, today's attitudes are still generally pro-safety, pro-testing, anti-big business, but also pro-personal responsibility. A consistent two-thirds for example (66 percent in 2012 and 68 percent in 2010) believe that when individuals are injured using typical consumer products, it is probably the individual's fault. Discovering the unique mix of these attitudes in your venue and adopting to the ways they'll influence jurors' view of your case is the central challenge.
Other Posts on Product Defense:
- Take a Moment to Present Your Safe Product Story
- Know When to Take the Offensive in Defense of Your Product: Lessons from Taco Bell
- Aim Your Product Warnings at "FYI" and Not Just "CYA"
Cite Research to Persuasion Strategies (2012). National Juror Survey: Products.
Photo credit: Ejimford, Flickr Creative Commons