Category Archives: Energy Litigation

October 2, 2017

Look Out for Group Influence in the Witness Pool

By Dr. Ken Broda-Bahm:

The way trial and deposition testimony works is that you hear from one witness at a time. We have individual testimony, we don’t have group testimony. Or do we? Is there a chance that when we are hearing from the individual, we are hearing a message that has already been formed and filtered in reference to a group’s perceptions and opinions? New research shows that the answer might be, “Yes.” Based on a release from the University of Huddersfield carried in ScienceDailyDara Mojtahedi, a lecturer in forensic psychology, finds support for a phenomena he calls, “co-witness familiarity on statement similarity.” What that means is that we are influenced, sometimes decisively, by our reference groups, and that influence leaks into testimony. “It is human nature to give added credence to the views of family and friends,” he writes, “but this could lead to inaccurate eyewitness statements in court cases.”

The research focuses on the reliability of eyewitness testimony, something that tends to matter more in criminal than civil cases, but one can easily see how the implications apply to witness testimony in general. Mojtahedi took 420 participants and formed them into groups including people who had known each other for three months or more. The participants then watched a video showing a real-life fight breaking out. Then they either gave individual accounts on who was to blame, or they were allowed to confer before giving accounts. The findings showed that the discussions after the event significantly increased the similarity of the resulting accounts. In other words, after conferring, the witnesses were on the same page, sometimes in inaccurate ways. Reporting research showing that in actual trials, eye witnesses know each other around 85 percent of the time, Mojtahedi reasons that this familiarity leads to less skepticism and greater confidence, which in turn allows incorrect perceptions to be repeated and magnified. In this post, I will take a look at what this effect has to say about witness examination and witness preparation.

Continue reading

August 5, 2015

Protect Your Precious Resource — Energy Industry-Friendly Jurors

By Dr. Shelley Spiecker: 

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‘Precious resource’ in the energy industry typically refers to a saleable commodity like a coal seam or shale play.  Yet when an energy company finds itself in the courtroom, it is not coal nor shale, but industry-friendly jurors that are a ‘precious resource’. I recently spoke at the Rocky Mountain Mineral Law’s 61st Annual Conference in Anchorage, Alaska about how the trend of more favorable public perception is impacting litigation strategies for energy companies. Returning home after the Conference, I received an email from an attorney who attended and had a response to my presentation. He said, “What do I do when I have to select a jury with no voir dire opportunity? Is there a single juror characteristic predictive of favorability that I can know simply from reading a juror’s information card?”

For readers following our blog, you know we emphasize the importance of juror attitudes in predicting juror bias. But to uncover attitudes requires the ability to question jurors during voir dire, which the attorney emailing me indicated he is increasingly unable to do. So to answer his question I needed to turn to demographic characteristics to see if there is a single key variable that significantly predicts juror industry favorability. 

Using logistical regression analysis we analyzed the background demographic information from respondents in our most recent 2014 nationwide juror survey and compared this data to their responses to various lawsuit scenarios. Only one demographic factor emerged as a significant predictor – age. Specifically, as people get older, the more favorable they are to the energy industry. To illustrate, in one lawsuit scenario respondents were informed that an oil and gas company has been accused of underpaying the owners of the oil and gas the company has been producing. Half of the respondents learned that after receiving the underpayment claim, the oil and gas company committed to changing its payment practices. The other half of respondents were informed that the company did not commit to changing its payment practices. All respondents were then asked whether they felt the company should be punished with a damage award. The overall regression model was significant, meaning that respondents leaned more in favor of the defendant company that ‘committed to change’ its payment practices. However, in addition to this finding, as respondents got older they were more likely to respond that when the company committed to change it should not be punished with a damage award. Specifically, with every one-year increase in a potential juror’s age, he or she was 3.35 times more likely to respond that the company that committed to change should not be punished with a damage award. 

To answer the emailer’s question: If you are restricted to knowing only about jurors’ basic background information, seniority really does matter. Protect your older jurors who are reliably more industry-favorable than younger jurors.

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Other Posts on Energy Litigation: 

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Image credit: 123rf.com, used under license

May 7, 2012

In Today’s Energy Litigation, Drill Beyond Attitudes

By Dr. Shelley Spiecker: 

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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.

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Other Posts on Energy Litigation: 

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

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

June 2, 2011

Don’t Wear The Black Hat Lightly: You’re Not the Bad Guy Because You’re at Fault, You’re at Fault Because You’re the Bad Guy.

By Dr. Ken Broda-Bahm –

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So, let’s say you are BP, and after the Deepwater Horizon spill you are facing several thousand claims in the courtroom.  You are potentially more worried by one big claim in the court of public opinion:  you’re seen as a bad actor.  That perception certainly has less to do with any causal analysis of the failure of the blowout preventer, and more to do with beliefs that the company seems to be finger-pointing, didn’t come off well before congress, or even gets too many tax breaks.  As much as a company in litigation might strive to cultivate a better image, there is also the temptation to say, “Who cares?  We don’t expect them to love us. Just to focus on the claims and listen to the evidence.”  Continue reading

February 7, 2011

Adapt Your Scientific Testimony to Jurors’ Skeptical Ears

By: Dr. Ken Broda-Bahm –

Old Microscope: Carl Zeiss

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In his recent State of the Union address, President Obama followed the common pattern of giving attention and applause lines to nearly every issue on the national agenda.  But there was one issue that received no mention at all:  climate change.  The absence, noted by many commentators, extended even to areas where it would have been natural to mention the environment.  The President’s “clean energy” initiative, for example, was touted based on its ability to create jobs and bolster competitiveness, rather than its ability to help the environment.  Continue reading

January 31, 2011

Test the Waters, but Don’t Assume that Bias is Forever: Deepwater Hasn’t Translated to Deep Trouble for Energy Defendants

By: Dr. Shelley Spiecker

 

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Six months after the public was riveted to press coverage of the oil spill in the Gulf, impact on energy defendants has been less doomsday than feared.  In fact, this is one of the better times in the past 10 years to be an energy defendant in front of a jury.  Why?  Much as the spill itself appeared to dissipate more rapidly than expected, the tide of public opinion has drifted away from concern over the environmental practices of energy companies, and toward concern over the economy.  A recent Pew Research Center survey found the economy was identified as Americans’ top policy priority for 2011 by 87% of respondents.  The public is also focused on resentment of what many perceive as a failure of government to fulfill the promises made in the 2008 election. Continue reading

June 21, 2010

Take It From Rep. Joe Barton: Don’t Be A ‘Friend Of The Devil’

by: Dr. Ken Broda-Bahm

Ken_107 tight Here is a litigation lesson from the world of politics.  The Vice President, along with many other Americans, described it as ‘incredibly insensitive, outrageous, and astounding,’ but last Thursday, in the U.S. House of Representatives, Texas Congressman Joe Barton was facing BP CEO:

“I’m ashamed of what happened in the White House yesterday.  I think it is a tragedy of the first proportion that a private corporation can be subjected to what I would characterize as a shakedown — in this case a $20 billion shakedown.  … I’m not speaking for anybody else, but I apologize.”

Hours later, Representative Barton was taking back that statement in order to deal with the ensuing uproar from both Democratic and Republican circles.  

I apologize for using the term ‘shakedown’ with regard to yesterday’s actions at the White House in my opening statement this morning, and I retract my apology to BP.

What we see here is an unsuccessful attempt by Rep. Barton to reframe the issues.  On the 59th day of the continuing Deep Horizon oil spill, and two days after President Obama’s oval office speech asking BP to set up a $20 billion dollar fund in order to deal with the consequences of the oil spill, the Congressman seemed to sense a chance to focus the public’s attention on something other than the flowing oil, suffering wildlife, and spoiled beaches.  The President’s demand was unprecedented, and on the heels of an unpopular health care reform law and in the run up to a climate bill being successfully framed as an “energy tax,” the public might have seemed primed to accept Barton’s characterization of the fund request as yet another example of an outrageous power grab by the Democratic President.  Continue reading

January 6, 2010

Just the Instructions, and Nothing But the Instructions: Increase the Salience of Jury Instructions

 

by: Dr. Shelley Spiecker

 

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Evidence shows that false documents were notarized by employees and submitted to a state regulatory agency.  Evidence also shows that record-keeping was inaccurate; nevertheless, these matters cannot be addressed due to the parameters in the jury instructions. (Female, 55 year-old)

 

This quote, spoken by a juror after serving in a two month oil and gas production trial, typifies feedback I am receiving from jurors in a wide array of different cases in venues across the country.  While jurors are troubled by evidence they see at trial, and possibly even want to find against a defendant, they are adhering to the confines of jury instructions like never before. Continue reading

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