By Dr. Ken Broda Bahm:
At a mock trial the other day, one juror commented, “This is just like the ‘too big to fail’ thing… God, I hate that phrase. They think they’re above the consequences of their actions, and they don’t need to do anything about it!” Yes, banks and bailouts are back in the news. But that attitude doesn’t just apply to financial institutions. Interestingly, in the case of the mock juror’s comment, it was being applied to a large municipality. The factors that drive juror resentment towards the notion of “too big to fail,” isn’t just banking, but can apply toward any institution with perceived special treatment, along with an immunity to regulation or other checks on bad behavior. The resulting perceptions can be a driver for the kinds of juror anger that translate to big awards.
The idea is, “If there is no one else standing between this large organization and its ability to cause harms with impunity, then let’s have this jury play that role.” Once they start thinking within that framework, then the case becomes less about compensating the injuries of a specific plaintiff, and more about “sending a message,” to correct the behavior of a behemoth organization that — to their eyes at least– has few to no other checks on their behavior. As these anti-corporate and anti-large organization biases are once again made more salient by the news cycle, it is important for litigators to reframe the situation and to remind the jurors that in this case, the need for checks might be exaggerated, and many checks are already in place. In this post, I’ll share a few principles for framing away from a “too big to fail” narrative.
Address the Source of Anger
In every civil defense, I believe it is critical to look beyond the legal question of “What would make jurors assign liability?” to the broader and more human question of “What would piss them off?” The sources of not just logical blame but emotional anger are going to be case-specific, but often relate to dishonesty or disregard. A perceived arrogance or dissociation from consequences — conveyed either by the witnesses or by the fact pattern itself — can also drive anger. A mock trial can help you discover the sources of those feelings. In the case of the juror quoted above, it came down to a specific decision by a specific individual. When anger is part of the response, then you need a tailored message to defuse that anger as much as possible.
Answer the Special Treatment
Every organization exists within a context of checks and balances, and big organizations are often regulated far more than jurors expect. So as much as you can do so while staying relevant, you want to inform the jury about that context. Even when a given regulation may not have a direct bearing on the injury at issue, it will help jurors to know that there are constraints in place and that, as a jury, they aren’t standing alone between the organization and the public.
Get the Message
It can feel like an organization needs “the message” if they’re not prioritizing safety, or honesty, or responsibility. And if a jury doesn’t think a large organization has gotten that message, then they’re happy to be the messenger with a large verdict that — with or without punitives — exceeds any reasonable calculation of what would make a plaintiff whole. In response, the defendant needs to convey that they have already gotten that message. Short of admitting fault, the idea is to share information that would convey that. The basic idea is:
The principle that would motivate a high award — safety, honesty, accountability, etc. — already motivates us.
It remains to be seen whether the current wobbles in the banking system are going to be isolated events, or are going to ripple into something larger. But, like other economic events, they represent circumstances where the juror population can feel powerless in the face of mysterious and unaccountable economic forces. That feeling can turn a verdict into a chance to reassert some power. So your trial message should be sensitive to that.
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Other Posts on Bias Against Big Organizations:
- Bank on Bias Against Financial Institutions
- Look Out for the Anti-corporate Right-wing
- The Punishment Profile: Know the Juror Characteristics
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Image credit: Shutterstock, used under license