By Dr. Ken Broda Bahm:
As we enter the 20th day of protesters’ continued occupation of Wall Street, and sit-ins spread to similar sites across the country, what stands out the most is the sheer variety of their causes. The first declaration to emerge from the Wall Street encampment highlights concerns ranging from home foreclosures, to government bailouts, faulty products, medical costs, animal rights, extraordinary rendition, and a number of other specific charges against big business. The overarching themes linking these concerns together can be summarized as a distrust for corporate activities and a distaste for corporate influence in government. Spurred by a continuing poor economy and the perception of preferential treatment, large portions of the public are looking for payback and taking an increasingly dim view of the notion that “corporations are people too.” One clever sign seen at the protest, and tweeted infinitely, reads, “I refuse to believe corporations are people until Texas executes one.“
Large companies facing the court of public opinion, or the more literal courts within the legal system, may wonder at the degree of animosity. But it is no surprise to us: We’ve been researching the phenomena and tracking anti-corporate attitudes since 2003, and one thing we’ve learned is that one size does not fit all. As illustrated by the various cardboard signs on Wall Street, there are many different reasons to be mad at corporations, and for the litigant, the specific sources of anti-corporate bias matter. Rather than being a single, monolithic attitude, bias against big corporations can take several forms, playing different roles in the way jurors view corporate litigants. This post picks up on a National Law Journal article we wrote on types of anti-corporate bias and supplements that list by sketching out seven different flavors that you should be able to identify and adapt to in your case.
As a practical matter, it is no longer enough for a defendant corporation in litigation to simply decide to identify and strike those on the panel who are anti-corporate, because that is a majority view. In our most recent national poll, 82 percent of the population believes that, “If a company could benefit financially by lying, it’s probable that it would do so.” In that context, the priority becomes focusing on the extremes of the attitude, as well as on the types of anti-corporate bias most relevant to your case.
Knowing that there is strong overlap and multiple tendencies might be present in the same individual, the following is our listing of the different forms of anti-corporate attitudes we’ve measured, and the different ways that this attitude can manifest as bias in the courtroom.
1. The Anti-Corporate Power Critic.
Believes that: “Corporations have too much power in politics and life.”
Is likely to begin with an assumption that the corporation has more influence and control than any other party (individuals, regulators) in litigation.
Identify them by asking: “Does the government tend to favor large corporations over ordinary Americans?”
2. The Anti-Corporate Moralist.
Believes that: “Corporations are unethical.”
Is likely to presume that a corporation is dishonest as a matter of policy and willing to violate norms and standards in order to make a profit.
Identify them by asking: “To what extent do you believe executives of large companies share your values?”
3. The Anti-Corporate Anti-Globalist.
Believes that: “International trade hurts other countries.”
Is likely to be skeptical of multinational companies and to presume that a large corporation will tend to show little regard for the health and welfare of individuals with less economic means.
Identify them by asking: “If a company had to choose between cheap labor or fair labor practices, which do you believe it would choose?”
4. The Anti-Corporate Egalitarian.
Believes that: “Corporations promote inequality.”
Is likely to focus on a disparity of resources and see lawsuits as a way of balancing the scales between individuals and companies.
Identify them by asking: “In terms of fairness, what do you think about the salary of the average CEO?”
5. The Anti-Corporate Environmentalist.
Believes that: “Corporations hurt the environment.”
Is likely to take an especially dim view of companies in energy, resources, contamination, or adulteration cases.
Identify them by asking: “In your view, how often do corporations consider the environmental impact of their company practices?”
6. The Anti-Corporate Individualist.
Believes that: “Corporations limit the diversity of choices”
Is likely to discriminate against large national chains perceived as driving out local businesses.
Identify them by asking: “How much do you believe corporate chains impact and change local culture?“
7. The Anti-Corporate Economic Nationalist.
Believes that: “International trade hurts America.”
Is likely to discriminate against foreign corporations and question the motivations of any employment reduction.
Identify them by asking: “To what extent are you concerned about free trade agreements, for example, between the U.S., Canada, and Mexico?”
For any one of these sources, there is naturally a more specific profile and a number of different questions that can be asked, but this list provides a good starting point. If we were circulating this menu at the Occupy Wall Street protest or a similar protest elsewhere in the country, it is likely that the protesters would look at these types and exclaim, “yeah, all of the above!” But in the more subtle context of a particular case and courtroom, some of these dimensions are likely to be more salient and others less important. As always, the challenge is to use known biases to inform not only your strike strategy, but your message to the tougher audience as well.
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Broda Bahm, K. & Boully, K. (2007, February 2). How to Deal With the Many Types of Anti-Corporate Jurors. National Law Journal. [Law.Com: http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1170324168916]
Photo Credit: David_Shankbone, Flickr Creative Commons