By Dr. Ken Broda Bahm:
Here is a recent bit of media research that carries some relevance to corporate defense. According to researchers at Ohio University (Grizzard et al, 2019), when we are being entertained — reading a book, taking in a movie, or watching television — we prefer moral characters. That might seem obvious, but consider that we’re in an age when one of the most popular and enduring characters in recent television is a former chemistry teacher who turned into a drug kingpin and a murderer. And, interestingly, a popular preference for moral characters seems to hold for both heroes and villains, or, as is increasingly common, a mixture of the two, like Walter White in Breaking Bad. According to an Ohio State University release about the research, even at a time when we seem to prefer more complicated characters rather than archetype heroes and villains, people are still driven to look for a moral center. “Character morality is intricately tied to how much people like them,” Communication Professor Mathew Grizzard notes. “The more moral a character is, the more I like them. The more I like a character, the more moral I perceive them to be. It is nearly impossible to separate these factors.” Using the example of Walter White, Grizzard notes that the character’s initial goal of funding his cancer treatment, and the fact that he is not as bad as many of the show’s other characters, makes us still want to root for him.
Now, you may be thinking that a company isn’t a character. But in an important way, it is. Particularly in a courtroom, a judge and jury are being presented with an image, and are seeing the organization based on a role that it plays within a story. And, of course, they know only what they see, so if the image is partial or distorted, it can be more caricature than character. And that word, “character,” also has a second meaning containing a moral component. We refer to a person’s distinctive morality as their character, and we can emphasize the same thing of a corporation. Fort me, the main takeaway from the media research is a reminder that reinforces what I have found to be true in studying mock juries:
No matter what your negatives, jurors will look for some aspect of morality. And they don’t necessarily need you to be perfect, but if there is an aspect of morality to the character you’re able to display in court, then that helps.
Show the Company’s Moral Character in the Courtroom: A Checklist
Any discussion of the company’s character and morality needs to be relevant, not just to satisfy the rules of evidence, but also to prevent a jury from seeing it as a transparent whitewashing effort. There should be a connection to the case: If you’re defending against a claim of large scale securities fraud, it probably won’t be seen as relevant that you hosted a car wash for the local high school. And it shouldn’t be self-serving either: If you are one of the opioid defendants, it probably won’t help to say you reduced prices or gave free samples to people in poverty.
References to company morality shouldn’t just be used as a paintbrush to cover over perceived misdeeds. At the same time, defendants shouldn’t just give in to cynicism about morality either. Jurors still look for it. So let me suggest an incomplete checklist of questions. The answers, where they’re both true and relevant, might help in showing your company’s moral character.
- Does the company have overarching goals other than profit?
- Does the company have policies that promote ethical behavior?
- Does the company have systems that promote honesty and accuracy?
- Are those policies consistently and effectively enforced?
- Is a commitment to ethics infused throughout the company and not just relegated to one office?
- Is the company involved in the community?
- Does the company consider the interests of its business partners, even when it owes no fiduciary duty?
- Does the company keep its promises?
- Is the company represented in the courtroom by people of good character?
- Is the company dedicated to quality of life, and not just productivity?
- Does the company show loyalty to those who should receive loyalty?
- Does the company follow and exceed laws, rules, and regulations?
- Does the company do good things that it does not publicize?
- Does the company acknowledge and investigate when it makes a mistake?
- Does the company share some of the same principles, goals, and ambitions as members of the jury?
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Other Posts on Corporate Ethics:
- Repair the Corporate Image
- Corporate Corruption: Expect Sensitized Jurors
- Address the Corporate Mind
Francemone, C. J., & Walton, J. (2019). The Gordian Knot of Disposition Theory. Journal of Media Psychology. https://doi.org/10.1027/1864-1105/a000257.