Introduction

Why are jurors willing to award seemingly exorbitant damage awards in product liability cases? More importantly, what can be done about it? Thousands of hours of mock juror deliberations and interviews with actual jurors post-verdict reveal the many variables that influence jurors’ desire to award high damages. The following insights are offered to provide a glimpse into the minds of everyday Americans who find themselves in the jury box during trial and in the jury room during deliberations.

To begin with, it is important to understand what frequently goes on inside the minds of average citizens when they are sworn in as jurors. Despite what they are instructed by the judge and what they “commit” to during voir dire, jurors do not think: “I must keep an open mind;” “I must wait until I hear all the evidence before I make a decision;” or “The plaintiff has the burden of proof and I will hold them to that obligation.” They are certainly not thinking, “I am going to demand a preponderance of the evidence from the plaintiff before I will be willing support a plaintiff’s verdict and award damages.” Unfortunately for corporate defendants, especially in product liability cases in which someone has been injured or killed, the burden is frequently de facto on the corporate defendant to prove it did not do what plaintiff contends, or to prove that it operated with near perfection in its safety briefings, product testing, FDA approval process etc. Thus, the question in the minds of many jurors during the trial is not “Did the plaintiff prove his case?” rather, it is “Did the defense prove it did not commit the alleged wrong?” It goes further than that: skilled plaintiff attorneys inspire jurors to scrutinize the behavior, actions, policies, and history of the corporate defendant - not only with respect to the allegations in question - but generally. And in this context, jurors do not think in terms of “reasonableness;” rather, they expect the corporate conduct to be impeccable.

So, when it comes to deliberations and damages discussions, jurors who are unsophisticated in economics and likely to misinterpret the meaning of phrases such as “net worth” and “yearly profits,” can produce disastrous results. Furthermore, few jurors recognize that many corporations are actually owned by thousands and sometimes hundreds of thousands of shareholders just like themselves and that the success of their union pension trusts, retirement plans, and mutual funds depend on the financial viability of the corporation they are getting ready to punish.

Juror Decision Making

Once jurors have reached the point in which they see their role as “helping the victim,” “protecting the community” and “teaching the corporation a lesson that it won’t soon forget,” they have moved from logical to emotional decision-making. In fact, if jurors are “protecting the community” and “ensuring” something like this never happens again, their damages discussions feel rational, but the damage figures are not tied to anything specific (other than sending a message). In such a scenario, the sky is the limit with respect to final dollar figures. Additionally, the proliferation of “Reptile” tactics employed by more and more plaintiff attorneys around the country has only made the situation more dangerous for product liability defendants. These attorneys use template language “scripts” in deposition interrogations, opening statements, cross-examinations and closing arguments to craft a story that pushes jurors further away from the case at hand and the relevant fact pattern and drives them toward macro thinking (i.e., “who else might have been harmed in the past"; “who else might be harmed in the future”; “how do we prevent this from even happening again”; and “how do we protect our loved ones from a similar injury or death?”).

Thus, defendants in product liability litigation need to mount a strategic defense approach that permeates the case from pre-discovery all the way through closing arguments. Because jury research has repeatedly shown that jury verdicts are influenced as much and sometimes more by jury psychology than by the factual elements of the case, an effective defense strategy must incorporate the following research-based and strategic jury psychology elements:

• Before you begin to craft trial themes that you believe will resonate with jurors, conduct pre-discovery focus groups to learn what is actually important and impactful to the members of the community in the venue.

• Conduct pre-deposition Witness Effectiveness Training in conjunction with a trained jury consultant to prepare your witnesses for the cognitive, emotional, and psychological attacks they will encounter during the deposition. This training must go far beyond the legal/factual elements of testimony and it will arm witnesses with strategies and techniques to maintain control of the emotional and factual elements of their testimony.

• Conduct a realistic trial simulation in the form of a mock trial to test the themes you have developed so you can refine, bolster, or abandon as dictated by jury-eligible participants before you promote these themes at trial.

• Conduct pre-trial Witness Effectiveness Training for witnesses to help them learn how to tell the truth effectively in the context of a court proceeding and in front of and to trial jurors.

• Craft voir dire questions that illuminate dangerous thinking patterns potential jurors espouse. Get jurors to express their negative opinions in open court and don’t rehabilitate them when they do. Don’t waste valuable voir dire time asking questions such as, “Will you be fair?” “Will you hold me to a higher burden because I represent a corporation,” “Will you follow the Judge’s instructions,” Will you keep an open mind and wait to hear all the evidence before you make up your mind.”

Courtroom Sciences, Inc. provides litigation support services to outside counsel and corporate legal departments. CSI offers a comprehensive suite of services which assists legal counsels in managing the lifecycle of litigation.