By Dr. Ken Broda-Bahm:
Government regulators can often play a role in civil litigation. In some cases, they’re involved as parties. More often, however, their role is as a proxy. In those situations, jurors might look at whether the defendant followed the regulations as a shortcut to determine whether the defendant acted reasonably or not. In maintaining a site, designing a product, selling a drug, or offering some other service, the regulation — with or without help from the instructions — might serve as a stand-in for the jurors’ decisions on negligence and liability. Or the regulators’ role might serve as a kind of foil — a “part of the problem,” that in the plaintiff’s narrative, has allowed a danger to persist and grow.
In a recent article in DRI’s For the Defense, “Industrial Disasters are Derailing the EPA (and Defendants with It)” (Polavin & Monroe, 2024), the writers note the widespread coverage of disasters such as the 2023 train derailment in East Palestine, Ohio and the lack of trust applied to many of the official statements from government regulators as their reassurance was often countered by ‘independent journalists’ onsite. The authors, consultants with the IMS group, report on their own online survey that confirms that suspicion of the EPA at least has indeed gone up in recent years, with 34.8 percent saying the EPA is too business friendly in 2022 and 53.9 percent the same in 2023. Nearly half, 48 percent, agreed that the EPA lies to Americans to protect corporations. This growing suspicion jeopardizes the regulatory defense used by civil defendants accused of polluting, creating dangerous conditions, or selling flawed drugs and other products. They note, “These events have triggered a decline in trust in the EPA and other government agencies, undermining corporate defendants’ reliance on established safety standards.” We have observed similar reactions toward the EPA and other regulators in mock trials and real trials as well. In this post, I will share some ways to probe for this bias in oral voir dire.
While the specific focus and form of the questions would depend on the issues in your case, I think there are some broad attitudes to consider when it comes to views of government agencies. In my experience, I believe there are five general areas of regulatory distrust to probe:
Legitimacy
At the most antagonistic edge of the scale, some people may feel that government regulation is per se illegitimate, and businesses and individuals should be simply left alone. What used to be a somewhat extreme libertarian position has been increasingly mainstreamed in today’s politics. So your inquiry might begin by checking on who would withhold that base-level legitimacy from regulators:
Do you believe that government regulators serve a valid purpose? Who disagrees with that?
Who feels that we would be better off if individuals and companies were self-regulated rather than overseen by government bodies?
Expertise
Do jurors believe that regulators know what they are talking about? Ideally, regulators will be basing their standards on reliable and valid science, but in recent years, a decline in trust in science has been part of a more general “death of expertise” in the public mind, to the point that many professed “experts” are distrusted mainly because they’re claiming to be experts.
Do you believe that science tends to be neutral or tends to be biased?
To what extent would you tend to trust or distrust a regulator’s claim that they’re an expert in this area?
Honesty
A central pillar in someone’s credibility is the question of whether they’re perceived as being truthful. The researchers looking at the East Palestine train derailment noted that one of the main levers in weakened credibility for the EPA was the belief that they weren’t telling the truth about the real dangers of the chemical spill.
Do you believe that government regulators in this area are telling the truth, or not?
In your opinion, do regulators have a motivation to support anything other than the truth?
Competence
Also fundamental to credibility is the question of whether regulators are capable and effective. Particularly when it comes to government, potential jurors might believe that even when someone has good intentions and specialized knowledge, they might still be bumbling, disconnected, or unfocused.
Do the regulators in this area know what they are doing, or not?
Do you think the regulations in this area are effective or ineffective in what they do?
Independence
A final fundamental question is whether regulators are truly independent of the industries they regulate. Individuals who would otherwise believe in the validity and merit of regulations might nonetheless believe in the “revolving door” between government and industry, and the feeling that regulators have become the “captured” pets of big corporations.
To what extent do you think regulators are free to call it as they see it?
If a regulator says a company is doing a good job, is that something you are likely to trust or to distrust?
Looking at the many facets of regulatory credibility increases your chances of understanding the views and potential biases of those in the jury pool. Some might have negative views on all of the areas, but others might just focus on one (e.g., a lack of independence) and the net credibility is still negative. But in any case, defendants cannot assume a regulator’s seal of approval translates into an automatic escape from liability. If those days ever existed, they’re over now.
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Other Posts on Regulators:
- Account for Broken Trust in Institutions
- Anticipate Antigovernment Attitudes
- Account for a Motivation to Discount the ‘Official’ Narrative
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