by Art Raedeke

Attorneys representing corporate clients in jury trials often face an uphill battle, especially when pitted against perceptually more sympathetic individuals or smaller companies. Widely viewed by jurors as cold, greedy and heartless, large companies can be at a significant image disadvantage. Jury research conducted by Versus in various lawsuits indicates the kind of negative attitudes toward corporations jurors frequently bring with them to trials:

• In a recent contract case, 83% of the mock jurors agreed that when there is a lot of money at stake, companies will often engage in unethical behavior.
   
• In another case, 65% of the mock jurors felt large companies would break the law if they thought they could get away with it.
   
• A majority of mock jurors in a wrongful termination case (71%) were of the opinion that large companies often resort to unfair tactics to "squeeze out" unwanted employees.
   
• Most mock jurors in a recent patent case (65%) believed that big companies often take advantage of individual inventors.
   
• In an antitrust case, 76% of the mock jurors came in thinking that large companies often use unfair methods to thwart smaller competitors.
   
• In product liability and personal injury cases, corporate defendants are adversely affected by the widespread view that large companies put profits ahead of consumer and worker safety.
   
• In a case alleging insurance bad faith, 58% of those interviewed in an attitude survey believed insurance companies will do everything they can to get out of paying claims.

These and similar pre-existing attitudes indicate that jurors often view the corporate litigant with a "presumption of guilt." As a result, attorneys representing these clients should assume the burden of proof at trial and present an affirmative case story. The success of this effort depends in part on creating a more positive overall image for the corporation so that jurors will at least be open to its case presentation. There is a limit, however, to how much a litigator can or should try to soften or humanize the corporate client's image. Because jurors generally assume corporate behavior is based almost exclusively on the profit-motive, an attempt to ascribe to a large company non- economic or altruistic motives is often viewed as a con job. Consequently, the most effective defense is, in many cases, one in which jurors are convinced that it was in the corporation's economic interests to do the right thing. Such was the case in a recent wrongful termination suit in which jurors were widely critical of the defendant, but ultimately concluded that it would not have made economic sense for the company to unfairly terminate a productive employee.

Since it is not always possible to demonstrate an economic incentive for a company to do the right thing, it is helpful to personalize the corporation to the extent possible. Most often, this is done through presentation of effective testimony from corporate employees. The goal is to have your witnesses make such a favorable personal impression on jurors that their image is substituted for the negative impressions jurors may otherwise have of the company. Jurors need to be convinced that decisions related to case issues were made not by corporate automatons, but by fair-minded people like themselves. This conclusion has been borne out by comments about company witnesses made by jurors in post-trial interviews. Following are some examples:

• "All the company's people were believable. The plaintiff was getting witnesses flustered, but that worked in the defense's favor. It made them seem like they were honest and were just trying to get across what they had to say. All the (employee) witnesses seemed like they were telling the truth."
   
• "Jane Doe was very adamant about why she did things and it seemed sound enough. That's why it seemed like (the defendant) was doing business the way they thought was right."
   
• "I don't like insurance companies at all. They are big rip-offs. But in this case, the witnesses made it seem like they were just doing their jobs."
   
• "The ones who testified (for the defendant) were just a bunch of people doing their jobs."

Making a favorable impression on jurors requires witnesses to do several things. They must:

• develop a personal rapport with jurors and let them know (by talking to them) that they are the most important people in the courtroom
   
• handle themselves with utmost courtesy and decorum
   
• convey that they are happy to have the chance to tell jurors their side of the story
   
• answer questions clearly (to help jurors understand), confidently (to be convincing) and responsively (to build credibility)

Apart from effective witness testimony, having the right corporate representative at trial can sometimes be helpful. A representative of appropriate position in the company can convey to jurors that the company cares about and takes seriously the suit with which it is involved. Conversely, having the wrong representative can be quite damaging. A juror in one case, for example, had this to say about the corporate representative: "He really turned me off. He always had a smirky smile. It gave me a really bad impression of (the defendant) if he's one of the main representatives."

Another crucial factor affecting jurors' image of a corporate litigant is the performance of its trial counsel.* Many jurors see the trial attorneys as an extension of or surrogate for the corporation and judge the company in part on the basis of the attorneys selected to represent it at trial. As one juror in a post-trial interview put it, "As far as we were concerned, the lawyers were the company."

While it is not always possible to counteract jurors' predispositions against corporate litigants, efforts at putting a more "human" face on your client can go a long way toward leveling the playing field.

* For a discussion of ways for trial counsel to make a positive impression on jurors, see Jurors Talk About Trial Attorneys The Versus Report, Autumn 1998.