Persuasive Litigator

Non-U.S. Companies: Don't Fear Being "Hometowned" in American Courts

By Dr. Ken Broda-Bahm: 

 

Many companies which are headquartered or do the bulk of their business outside the United States can be a little freaked out by the prospect of being at the mercy of an American jury. After all, as a uniquely American notion, the act of resolving disputes by drawing upon the experience and judgment of average citizens without any particular skill or knowledge in the subjects at issue, can be at best unfamiliar, and at worst terrifying. Might this unsophisticated mass be moved by tricks or emotion? Might they simply favor the American individual or company who has the home court advantage? For the company that is relatively inexperienced in American courts, that fear might be understandable. But thankfully, it isn't borne out by the research. Instead, the most recent studies show that foreign companies fare as well, or even better than their domestic adversaries in front of American juries. 

Of course the message "don't worry" is never complete advice to someone entering an uncertain situation. Newcomers to Yankee-style civil justice still need to appreciate, adapt, and adjust. But what they don't need to do is reflexively settle, arbitrate, or run to the bench just to avoid a U.S. jury. In this post, I'll take a look at several studies that have looked at this question directly, including a recent attitudinal survey (Leibold et al., 2013) focusing on Japanese companies in particular. I'll also provide a quick list of considerations for l'etranger of any sort seeking to get a fair shake in a U.S. venue. 

Account for Social Media Distortion

By Dr. Ken Broda-Bahm: 

The way we create, locate, and measure public opinion is changing, and fast. It used to be that we treated the body public as a passive audience waiting to be canvased, surveyed, or focus-grouped. Today, however, people in all demographics are active in public and semipublic internet spaces creating, sharing, and liking their way to an electronic body of evidence that's unparalleled in history. The existence and continued growth of that body is starting to affect the way we research, including in the litigation world. In what I called the "best trial idea of 2011," I previously discussed the concept of "social listening." Originally a technique used by market research firms in order to keep track of online statements about a product, a company, or an issue, social listening stands to become a tool promoted and used by some consultants to monitor and react to large-scale discussions about high profile court battles like the Casey Anthony trial.[1]

Of course, at least some of that promotion may be jumping the gun a bit. But still, when there is a pool of searchable information out there, it is only inevitable that social scientists will be drawn to it. And what social scientists use, lawyers, litigation consultants, and even the jurors themselves are bound to use as well. But even as we cautiously approach this new source of data, we need to be aware of a distorting effect. If social media is "a mirror up to society," it is more like a funhouse mirror, magnifying some areas and diminishing others. As interactive Web 2.0 features are increasingly used as a guide to public opinion, this post looks at some new research on the extent of social media's distortion and identifies a few practical places where we should account for that distortion. 

Account for the Media's Effect (Even in Civil Cases)

By Dr. Ken Broda-Bahm: 

A classic case of pretrial publicity is currently playing out in Steubenville, Ohio. After members of the hacker's group called "Anonymous," posted a photo and video linking two high school football players to the rape of a teenage girl and pointing toward an official effort to limit the scope of the scandal to protect the football team, the story has saturated local and national media. Scheduled to be in trial next month, their attorney has claimed "a right to a fair trial for these young men has been hijacked." This is the kind of scenario we most readily think of when we consider the effects of pretrial media: Wall-to-wall coverage of a criminal case leads to such a high level of knowledge, or perceived knowledge, that it becomes impossible to find an open-minded jury. We're less used to thinking about this media effect in a civil law context, especially in those mid- to smaller-sized cases that make for boring news stories. 

But there is a broader effect at work, and a way that media coverage matters to a wide spectrum of civil trials as well. If your future jurors are exposed to related news or similar stories, they're likely to view your case in the context of that information. While most of the research on pretrial publicity has focused on criminal cases, some (e.g., Bornstein et al., 2002; Robbennolt & Studebaker, 2003) have shown that its effects can be as acute, or even more so in a civil trial context. A current study reported in the November edition of The Jury Expert (Platania & Crawford, 2012) looks at the influence of coverage of similar cases on products liability verdicts, finding that exposure can have a substantial influence. This post takes a look at that study and draws out some general suggestions for civil litigators looking to keep an eye on the media climate. 

Consider the Jury's Political Role

By Dr. Ken Broda-Bahm: 

Those of us who work in the business of preparing for trial and going to trial are used to seeing the jury as a tool of dispute resolution. We're less used to thinking about the jury's broader political role. Apart from the speeches given by judges at the start of voir dire, we don't often think of the jury as that vox populi serving as an essential and constitutional check on the power of government and large corporations. But it is that sweeping vision, and not the more mundane task of providing closure for cases, that serves as the main rationale for the United States being unique among countries in using juries in civil disputes. We defend the right to request a jury in civil contexts because that right seems to be a critical part of our democratic heritage, and indispensable for an active citizenry. 

But does a civil jury continue to serve that vaunted role as a political institution? According to a  recent article appearing in the Emory Law Journal (Solomon, 2012), the answer is, "not so much." William & Mary law professor Jason Solomon takes a hard look at the civil jury's well-worn rationale from the perspective of democratic theory, and concludes that the jury falls short of many of its loftiest ambitions because they're generally focused on private torts and are as likely to be anti-plaintiff as they are to be anti-corporate. In addition, Solomon argues, a reliance on popular judgment undercuts rule of law by providing no record or precedent (since juries give no reasons) and leads to less overall predictability. There are clearly some responses to Solomon's arguments, but I'll leave it to the democratic theorists to carry on that debate. However, the article got me thinking: For those working at the pragmatic end of jury decision making, what would be different if, instead of just seeing juries as tools of formal dispute resolution, we took the jury's political role seriously. Moving from theory to practice, this post looks at that question.

Be Assertive, Not Aggressive: 2012 Presidential Debate Series, Part Three

By Dr. Ken Broda-Bahm: 

Everyone loves a second act. In the buildup to the presidential debate on Tuesday, President Obama's supporters were hoping for turnaround from what was widely described as a lackluster performance in the first debate: He needed to find his edge, fight harder, and call out his opponent Mitt Romney more often and more forcefully. One could almost hear the cheerleaders, "Be...Aggressive...Be...Be...Aggressive!" And there is no doubt Romney supporters were chanting the same, betting that their candidate could continue to capitalize on a stronger than expected performance that has buoyed him in the polls leading up to next month's election. 

But there was one practical obstacle for both candidates: The "town hall" format that involved questions being asked not by a moderator, but by a cross section of New York area citizens selected by the Gallup organization. Both candidates needed to come out swinging, but especially in the live presence of undecided voters, they needed to find a way to do so without looking disrespectful or rude. In other words, the candidates experience the same conflict that every attorney faces in the courtroom: the need to attack without losing credibility, to unsparingly criticize an adversary while still maintaining an image that is respectful, professional, and courteous. In that context, one wonders whether the need is really for aggressiveness -- for attorneys or political debaters -- or whether it is for assertiveness. The two are close cousins to be sure, and at times the difference can be in the eye of the beholder. But in this post, I will draw from three specific vignettes from the debate to see if we can separate the two.