Persuasive Litigator

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.

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

By Dr. Ken Broda-Bahm: 

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. 

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 -

 
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." 

The problem, according to soon to be released research, is the public and members of juries don't assign blame independent of assessed credibility.  Being the party wearing the black hat isn't so much a consequence of being found at fault, it is a precursor.  Blame is often a result of low opinions.  Let's take a quick look at the research, and also at what defendants can do about it if there is a risk they'll be the ones wearing the black hats in the courtroom. 

Adapt Your Scientific Testimony to Jurors' Skeptical Ears

By: Dr. Ken Broda-Bahm -

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. 

This decision was no doubt the result of polling showing the American public is very skeptical of the science behind global warming.  Recent surveys, for example, showing that nearly half of all Americans consider the threat of global warming to be "greatly exaggerated," likely contributed to advisers' view that the best overt reason to protect the environment is...to put America back to work.  Despite a recorded 97-98% consensus within the scientific community, a large proportion of the citizenry simply doesn't believe the science behind climate change.  This skepticism, however, isn't a passing political phenomenon, but is instead part of an observed tendency on the part of many to take scientific conclusions with more than a few grains of salt.  Some individuals, including members of your jury, will elevate personal beliefs and experiences over scientific conclusions, no matter how well those conclusions are supported.  This skepticism, explored in some recent research conducted by our group and others, has some important implications for expert witnesses looking for the best ways to convey scientific conclusions to their jury. 

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

 

 

 
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.