How to Anger a Jury (Unintentionally)
Updated: Jan 6
When my children were young, I taught them something I wasn't sure I was supposed to teach them. (I hope this sentence has your interest). It was kind of like a "parent hack."
What I taught my children can be of great benefit to defendants in civil litigation.
So, what am I talking about?
When my children were old enough to understand, I taught them that when they get caught doing something they're not supposed to do, or not doing something they were supposed to do, they have some control over the consequences we (their parents) impose.
I told them that when these circumstances arise, their first instinct will be to deny, deflect, defend, and blame (someone or something). It's a knee-jerk, self-preservation reaction... we've all done it. But, I told them, these types of responses will not help. In fact, they will only make matters worse, because we'll get into a back and forth about what they did/didn't do, why it's a problem, I'll feel like they don't care about the rules, and I'll feel disrespected as a parent. The result will be a decrease in my patience and an increase in my desire to punish or teach them a lesson.
I wanted my children to learn how to take ownership of their behavior. So, I taught them a better response. I taught them that if they stay calm, acknowledge/admit what they did (or didn't do), apologize, and let me know they'll do better in the future, my reaction will be much different than in the scenario above. This is because my frustration will stay at a minimum, and I won't feel the "need" to teach them a lesson, i.e., punish them. This isn't to say the kid gets off Scott free... a consequence will still be applied, but the overall interaction won't be nearly as negative as it would be with the first response.
When it comes to civil litigation and juror decision making, there are many parallels to what I just outlined. Jurors are human beings. They're parents, teachers, employers, supervisors etc. They've all experienced denial/deflection, finger-pointing, defensiveness and blaming behavior from children, employees, students, direct reports, etc., and no one likes it.
At trial, when a corporate defendant's only answer to the purported negligent act is to defend, deny, deflect, finger point, blame, etc. or at least if this is what the jury perceives, jurors get frustrated, and even angry. And frustrated and angry juror lead to punishment. And, while punitive damages aren't always part of the case, if jurors believe a defendant needs to be punished, they'll find a way to do it (often times increasing the non-economic damages, seemingly out of proportion).
What does this mean for corporate defendants?
I'm not advocating that corporate defendants simply adopt an "admit/acknowledge and apologize" strategy for every case. And I'm not saying that corporate defendants shouldn't defend themselves at trial, particularly when they haven't done what's alleged in the complaint. What I am saying is that it's important not to give the jury the impression that you haven't learned, you don't care, you don't "get it," and you need to be sent a message. Instead, if the jury believes you have learned, you do care, and you do "get it," it's not as likely they will feel the need to punish. Afterall, what good is teaching someone a lesson they've already learned?
What does this look like in context?
Recognizing that there are legal nuances to every case, and trial strategies are case specific, the following points could help to mitigate jurors' desire to punish a corporate defendant when appropriate/applicable:
Apologize when an apology is due. An apology isn't necessarily an admission of negligence. E.g., "We're very sorry this happened and we're sorry for the pain this incident has caused you and your family. We never want any of our employees to get hurt...they're like family." Such an approach shows the jury you are human, and you sympathize with what the plaintiff/plaintiff's family has experienced, which can be disarming to jurors who might otherwise be punitive in nature. Such an approach is particularly helpful in a case where liability is admitted.
Concede the obvious. A refusal to concede obvious points, even if they aren't the best for the case, can frustrate jurors and diminish a party's credibility and trust. Such a refusal can also anger jurors, making them think "these people just don't get it..." (A phrase you don't want uttered in the jury room.). It's the hand in the cookie jar scenario. A parent's reaction to catching a child with his hand in the cookie jar will depend on what the child does when he's caught. Does the child claim his hand wasn't in the cookie jar? Does he give an excuse for why his hand was in the cookie jar? Does he claim he didn't know he wasn't supposed to take a cookie? Does he try to blame someone else for his own behavior? Or does he own up to it and apologize?
Acknowledge updates/changes. If a corporation has changed a rule or procedure as a result of an accident or injury, acknowledging the change isn't an admission of negligence if done correctly. E.g., "We have great safety policies and an amazing safety track record, and we're proud of both. In fact, we have always exceeded the govt. guidelines. We never want anyone to get hurt. Everyone was surprised this accident happened because nothing like it ever had. But because it did, we took a look at our policies and added X, Y and Z.
Mention what you've learned. Learning something new as a result of an incident doesn't have to be a bad thing. For example: We take safety training seriously, but this case has shown us that despite exceeding the government's guidelines and industry standards, people can still end up getting hurt. So, we keep evolving our safety protocols, even to try to anticipate mistakes people might make. We care enough about safety to make it a continuous process. It doesn't mean our practices in the past were negligent, it just means we evolve as new and sometimes unexpected information comes in.
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Jeff Dougherty, M.S.
President - Litigation IQ
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