Prejudicial Predilections

WHEN A HAULER DOING business in the Mid-Atlantic area landed in court as a defendant in a lawsuit, the owner thought that the jury would look sympathetically and favorably on a company that had served the community for some 50 years. Besides its commercial and residential work, the hauler was a prominent and generous supporter of local charities and active in civic affairs. But to the owner's surprise, the home-town jurors awarded the plaintiff $75,000 in compensatory damages and tacked on $50,000 in punitive damages for good measure. While the hauler's appeal was pending, the case was settled for an undisclosed amount.

If a given pool of potential jurors accurately reflects a cross-section of the community, then corporate defendants beware. A large number of the general population have fundamental doubts about the honesty and integrity of businesses, according to polls and surveys. Not surprisingly, these expectations influence attitudes and opinions. Negative expectations about businesses become self-fulfilling prophesies, making it easy to believe that a company engaged in misconduct. Jurors are wrapped in these impressions when they enter the courtroom. If jurors harbor doubts about the honesty of corporations and if these doubts are not exposed during the screening process when “prejudiced” jurors can be eliminated, this credibility gap enlarges the corporate defendant's evidentiary burden.

Survey data collected on how potential jurors throughout the United States view corporations shows a dramatic discrepancy between how they think companies actually act and how they think companies should act. Typically, respondents believe the highest corporate priorities are profit and executive compensation, while protecting employees and being a good corporate citizen rank lowest. By contrast, these respondents think corporate attitudes should be the reverse. Given this rampant skepticism, it may be relatively easy to persuade a typical juror that a defendant corporation or corporate executive engaged in deceptive or greedy conduct at the expense of a competitor or the public at large.

It's not just big business, meaning public corporations, that score poorly on integrity surveys. To some extent, relatively small but locally prominent businesses are also suspected of using their influence to achieve dominance and to compete unfairly. It's no wonder that there is popular support by all levels of government to regulate business — not to burden commerce but simply to rein in the powerful.

According to research conducted by The CapAnalysis Group, which is affiliated with the Washington, D.C., law firm of Howrey Simon Arnold & White, jurors bring into the courtroom a number of assumptions, including:

  • Depending on a corporation's size, wealth and power, it will know more about the facts and circumstances in a lawsuit than the government or public.

  • Corporations know about the facts and circumstances in a lawsuit, particularly on issues related to hazardous substances or conditions, before others.

  • Corporations have more relevant information than they disclose.

  • Corporations should act in ways that exceed minimum legal requirements.

What does all this mean for corporate defendants? Aside from assembling and presenting the evidence and arguments needed to answer civil claims or criminal charges, companies need to confront and deal with a jury pool's common prejudicial preferences.