By Dr. Ken Broda-Bahm
Two jurors sit side by side in the box reacting to the same information. The first sees a consumer who chose to use a product in a deliberately risky manner and has no one but himself to blame for the resulting injury. The second sees a company that had the knowledge and the power to foresee the patterns of consumer use and deliberately chose to ignore the risks by, instead, hiding behind unrealistic warnings. The story and the facts are the same, but the differences in juror mindset and attitude lead to strikingly different conclusions.
Product cases can end up being small morality plays in a theater located at the intersection between corporate responsibility and individual responsibility. In that context, some jurors naturally pose a greater danger to the product defendant, and there is a need for a good way to find out which ones. We know at this point that the answer doesn't lie in juror demographics, and it isn't easily discernible through occupation or anything else that is easy to see in the panel. Instead, what we need is a reliable metric to discern the most relevant attitudes. We've written before on the Persuasion Strategies Anti-Corporate Bias Scale which provides a seven-question validated measure of the attitudes that predict an initial leaning against the company in an individual versus corporation suit. While the scale applies to litigation generally, it can also be useful in particular contexts like products liability. This post, the third in our series, will focus on the role of anti-corporate bias in products cases, and share the findings resulting from application of our scale.
The Products Survey
Persuasion Strategies recently paired with the 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. This past June, we administered the Anti-Corporate Bias Scale (available here) and also asked participants about their views on product testing, labeling, and legal responsibility. The last step was to ask survey participants to report their leanings on a number of brief litigation scenarios in order to see if the scale works in predicting which potential jurors will have an initial leaning against the company in a products liability scenario.
In part one of our report on this survey, we noted a number of broad results regarding attitudes on testing, label reading, following warnings, prioritizing safety or performance, as well as anti-corporate bias. In part two, we looked at the specific traits that set apart the jurors who posed the highest risk for the products defendants, focusing specifically on label reading behavior and a collective responsibility orientation. This third part will focus on an additional factor that emerged from our review of the 2012 survey data: anti-corporate bias.
Can We Quantitatively Identify the Pro-Consumer Jurors?
Yes, we can. Based on a scale that we created and validated with the University of Nebraska, Lincoln, it is possible to ask a series of attitudinal questions resulting in a score that correlates highly with trial leanings in a number of scenarios. The scale - complete with the questions, response options, and ways to score and interpret the results, is available as a free download.
A potential juror's answer to seven items, each having four response options, creates a score ranging from one to four. In past research, we have found that there is a reliable cutoff point at which the respondents are reliably "higher" or "lower" risk based on their responses to short litigation scenarios and based on their reactions to longer mock trial presentations.
Potential Jurors' Score
Persuasion Strategies Anti-Corporate Bias Scale
- Say they would pursue a lawsuit against a company that made a typical consumer product if they suffered significant bodily injury while using that product.
- Believe that jury damage awards are not "too high."
- Believe that it is more likely the product's fault than the individual's fault when injuries occur during the use of typical consumer products.
- Favor the consumer in this scenario, "A consumer bought a product from a company and experienced a severe injury when using the product and is now suing the company. The company printed the risks of using the product on its warning label."
- Favor the consumer as well in a scenario that adds, "The consumer followed some, but not all of the safety precautions on the label."
So How Would You Use the Scale to Exercise Strikes in a Products Defense?
Asking a number of questions on the same theme is generally the most reliable way of getting at the attitude. In working on this scale, we used a large data set (2,916 mock jurors) and a process called "factor analysis" to reduce the questions to the minimum number - in this case seven - that are capable of reliably measuring the attitude. The first step is to find a way to get answers to the seven questions. Because each includes four response options, the easiest way to do that is in a supplemental juror questionnaire. If that isn't possible, a cruder form of the scale can still be obtained by asking the questions in oral voir dire and converting the four-point scale to just two options (e.g., "more/less," "often/rarely," "too many/too few," etc.). The final step is to average the answers for all seven items into a single score.
Once you've scaled the potential jurors, the next step is to apply meaning to the various numbers. Within your venire, you may be able to see your own ranges that functionally separate the higher versus the lower risk (e.g., the top 20 percent, next 20 percent etc.). Barring that, however, the cutoff points that we developed earlier appear to work as well in a products context.
Here, for example, is one result from our June 2012 survey based on participant's responses to the following scenario: "A consumer bought a product from a company and experienced a severe injury when using the product and is now suing the company. The consumer followed some, but not all of the safety precautions on the label."
Percentage of Jurors Favoring the Consumer:
As you can see, where the juror lives on the Anti-Corporate Bias Scale makes a huge difference in how they respond to the scenario. Among those with the highest risk (in this case, an average score of 3.28 or higher) fully 75 percent support the consumer in that scenario, and among those with the lowest risk (an average score of 2.71 and below) only 8 percent do. Not all of the results were this dramatic, but a definite pattern emerged. Those who measured in the "high-risk" zone were significantly more likely to come down on the anti-product manufacturer side of the question. While the differences between "low" and "medium" risk tended to be modest, the differences in the "high- risk" group were more dramatic, and that is a finding that jibes well with the process of exercising strikes.
Posts in the 2012 Product Survey Series:
- The Products Survey (Part I): Adapt to Today's Product Attitudes
- The Products Survey (Part II): Spot the Wrong Kind of Juror for Your Defense
- Part III: Safety Test Your Jurors (This Post)
Other Posts on Anti-Corporate Bias:
- Measure Your Potential Juror's Anti-Corporate Bias: Get the Scale Here
- Bad Company: Investigate the Sources of Anti-Corporate Attitudes
- Don't Just Display Graphics, Interact With Them (an infographic on the PS Anti-Corporate Bias Scale)
Cite Research to Persuasion Strategies (2012). National Juror Survey: Products.