BY JULIE CAMPANINI
BridgeTower Media Newswires
It is no secret to defendants that jurors expect products to be safe and that companies that fail to follow their own policies are vulnerable. A trend in litigation is to move safety to the forefront and use fear as a tactic to move jurors — the “reptile tactic.”
While it is important to stay abreast of ways that plaintiffs’ counsel attempt to use fear and safety concerns with witnesses and jurors alike, it is also important to understand prevailing attitudes around the country related to product manufacturing and safety.
Jurors faced with complex tasks, such as parsing out responsibility for injuries, deciphering the law, and sorting through industry standards and regulations, often opt for the easy way out. That is not to say they don’t work hard; rather, they prefer straight lines to problem solving. Oversimplified blanket solutions are innately more appealing.
Magna conducted a survey of more than 1,300 jurors across the country, at venues in places such as California, Colorado, Minnesota, Illinois, Ohio, Nevada and Kentucky. While some venues are known to be less defense-friendly than others, there were no significant differences among the venues in the data. Attitudes were remarkably similar.
When it comes to the idea that companies that violate their own policies should be severely punished, jurors are on board in alarming numbers. There are several reasons for this, but it is important to emphasize that strongly held beliefs, whether based in fact or not, are difficult to dismantle.
The problem, in the context of litigation, is twofold: 1) policy violations come in a wide range of materiality, but jurors don’t always discriminate between a serious violation or one that is inconsequential, and 2) angry jurors award more money.
Even if punitive damages are not on the table, any anger generated by a seemingly careless company that “can’t be bothered” to comply with its own policies and procedures will see a punitive undertone in compensatory damage awards, increasing the award as a misguided or erroneous way of forcing compliance.
Companies too often fail to shore up their attempts at compliance or bolster their employee witnesses’ understanding of the safety policies. Too often we, as litigation consultants, step in after a round of depositions have gone south because witnesses failed to articulate the company’s priorities on policies, compliance, training and safety, and companies find themselves exposed on issues that undermine their stated values.
That directly plays into the “reptile tactics” we see worked into many different types of cases. By exposing misalignment between practices and policies, whether in a trucking case or a warnings case, plaintiffs are making headway in tapping into jurors’ fears about safety and their anger about how powerless they feel.
The power differential that jurors feel, but often don’t articulate as such, can be leveled in jurors’ minds through large damage awards that “hit them where it hurts.” Emboldening jurors to be the guardians of the community and make things right gives jurors the means to shift power and hold corporations accountable. Again, this taps into their desire to make a difference and the perception that the only recourse in court is through the pocketbook.
Jurors believe companies care about profits above all else, so this is a natural progression. They are constantly bombarded with stories (and TV ads) about companies that knew about dangers and did not change their products, companies that knew about dangers and affirmatively hid them from the public, or companies that knew about dangers and refused to implement safer methods. Defendants are then tasked with fighting their own cases at trial and find themselves on the defensive because of others’ misdeeds.
Fighting one’s own battles is hard enough; fighting history can be impossible.
Julie Campanini is a senior trial consultant at Magna Legal Services. She can be contacted at [email protected].l