Persuasive Litigator

The Products Survey (Part II): Spot the Wrong Kind of Juror for Your Defense

By Dr. Ken Broda-Bahm 

During my most recent jury selection, the judge rather uncharacteristically allowed counsel unlimited time for voir dire. The team I worked with was delighted to have the extra time, but still stuck to a fairly disciplined approach of getting what was needed and getting it over with. (Message one to jurors: We respect both your opinions and your time). As opposing counsel's voir dire stretched into the second day of trial however, with no sign of a "please wrap it up" from the judge, it struck me: Our adversary has no idea of what he is trying to strike, so instead, he is just using his time to transparently trot out each of his case themes for the panel's approval. When it came time for strikes, to my eyes at least, he simply picked on the basis of demographics in a way that had nothing to do with the hours that he had spent talking with the potential jurors.

The better approach, of course, is to know your targets and to use the voir dire time you have -- whether brief or extended -- to uncover those factors. Sometimes your targets are based on your own judgement, mock trial research, or reasonable guessing based on past cases. But in other cases, the strikes can be drawn from larger-scale attitudinal research. Persuasion Strategies recently completed a project with the recruiting and survey company K&B National Research that involved 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. This post, the second in the series, focuses on a few factors that emerged to characterize the jurors posing the greatest risk to a product manufacturer or seller. 

The Products Survey (Part I): Adapt to Today's Product Attitudes

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. 

When Your Case Follows a Bellwether, Prepare Jurors to Hear only Part of the Story

By Dr. Ken Broda-Bahm and Dr. Kevin Boully: 

The first bellwether case in Toyota's "Unintended Vehicle Acceleration" litigation has just been selected by a judge in California.  To some, that may come as a surprise, since it might have been assumed that these cases would have deflated after the National Highway Traffic Safety Administration (NHTSA) concluded a year ago that there is no electronics-based cause.  Then, just last week, an exhaustive investigation by the National Academy of Sciences again failed to find a causal link between vehicle electronic throttle-control and sudden acceleration.  Yet still, it appears, the cases have continued like...well, like some kind of unstoppable vehicle.  That suggests there may be more to the story than what we're seeing in the press, and we will have to wait on the trials to find out.

The interesting point for me at this stage is the emerging "bellwether" structure.  The term originally refers to a sheep that leads other sheep by virtue of a bell around its neck.  In litigation, however, the bellwether structure is increasingly used to select a specific case, or a few cases, from among a much larger group of similar cases to be tried first in order to resolve some of the broader issues in the litigation.  A finding of liability and general causation, for example, might be established for all plaintiffs, leaving it to the rest of those in the group to just prove specific causation and damages.  The practical effect of a bellwether structure is generally to encourage settlement, but for the vast majority of cases that are "nonbellwether," it means that there is at least some chance to go to trial with a number of issues already established by another jury.  That is undoubtedly an advantage for plaintiffs, yet it also raises some interesting communication challenges.  Is it possible to fully motivate and persuade these nonbellwether juries if they are only hearing part of the story?  Does it have an effect on the damages awarded?  This post looks at the relevant research, and makes a few recommendations for cases within a bellwether model. 

Define "Reasonable Person" As Your Jurors' Idealized Version of Themselves

By Dr. Ken Broda-Bahm:

Sometimes you come across a document that challenges your view of basic human goodness.  The stomach-churning Grand Jury Report relating to the Pennsylvania State football scandal is one such document.  What stands out, based on the allegations, is just how many times former assistant coach Jerry Sandusky was caught.  In locker rooms, workout rooms, cars, and homes, the report points to continual revelations of abuse that led to minor and incomplete reactions.  The responses of those making the discoveries appeared to be "not in my locker room..." or "not with my kid..." instead of "you are going to prison."  If the facts end up bearing out that perception, then there is a great deal of blame to be shared by those around Mr. Sandusky.

The situation also raises the question, "What would I have done."  We would all like to believe that, if we had clear evidence of child sexual abuse, we would have acted differently from the many witnesses in Happy Valley.  We wouldn't have just told our supervisors, like then graduate assistant Mike McQueary, we would have told the police, then the media, and the world if no action was taken.  Hopefully, that expectation is accurate in this case.  But we also know that in many cases there is a tendency to idealize our expected behavior.  In our own estimation, we always would have been more careful, more thorough, and shown greater foresight than others.  That tendency to idealize has a direct effect on how jurors personalize abstract legal standards like the "reasonable person" and the "exercise of ordinary care."  They start by asking, "WWID" or "What would I do?"  And then they apply a little gloss to the answer. 

Take a Moment to Present Your Safe Product Story

By Dr. Kevin Boully:

In little more than a moment a man goes from enjoying his favorite recreational sport to an injured Plaintiff with a sports-product liability claim.  It happens in a flash.  And new research suggests that people may make determinations about a witness's trustworthiness and empathy just as quickly -- in about 20 seconds.  So what happens when Defendant manufacturers are faced with challenging facts, sympathetic Plaintiffs, and a need to present a believable trial story in sports-related products liability cases?  In this post, we focus on a three part approach to developing a critical aspect of an effective product-defense -- an effective product safety story. 

Earlier this year, a Missouri jury awarded $48 million to the families of five people who perished during a skydiving incident.  Trial testimony indicated the Defendant airplane-parts manufacturer made a replacement part for the aircraft using a metal alloy that cost about half as much as the metal the original manufacturer required.  Plaintiffs also presented evidence that the replacement part had caused other engine failures, and had failed internal testing.  These are not good facts (to put it lightly), and a Defendant in this position clearly faces an uphill battle.  But a Defendant in this position must present a credible company witness (if not multiple witnesses) who can tell the story that made the Defendant company's decisions safe and reasonable based on the knowledge and testing available at the time.