Minnesota Lawyer
In the past few months, some lawyers have noticed that juries are angrier than ever at corporate America.
Mark Kosieradzki, a plaintiffs’ attorney at Kosieradzki Smith in Minneapolis, recently conducted a mock trial for a case against a nursing home.
Juror after juror said, “We just assume if a corporation is involved, they’ll be screwing us.”
“There is universal distrust of corporations. We’re hearing that from everyone,” said Kosieradzki.
And that was in August — before the Wall Street meltdown.
That crisis and the trillion-dollar government bailout of corporations is likely to further fuel these sentiments.
But figuring out whose side jurors take when they’re angry is another question.
According to conventional wisdom, a bad economy produces two effects: Juries are more punitive and less generous, said Kenneth Broda-Bahm, a senior consultant with Persuasion Strategies in Denver.
In criminal cases, juries are more likely to convict, he said.
In civil cases, expect juries to be less generous with classic damages in, say, a standard personal injury case, but more willing to “send a message” in cases involving bad corporate behavior, Broda-Bahm said.
Trial lawyers have to “dig deeper” in jury selection to figure out how an individual juror might respond in a particular case, said Richard Gabriel, a jury consultant at Decision Analysis in Los Angeles.
“Some jurors will say, ‘That’s the way of the world.’ Others will say, ‘We’ve got to send a message to big companies,’” he said.
But experts agree that cases directly involving financial institutions, such as predatory lending claims against banks or shareholder suits against security firms, will be toxic to a jury.
“The type of cases that remind a jury about the economic crisis will become more difficult to defend,” said Broda-Bahm.
Gabriel agreed.
“Jurors are going to be really angry about that stuff,” he said.
Cuts both ways
A juror who is himself experiencing financial turmoil could benefit either side of a dispute, depending on his attitude.
For example, asking a juror about how he is dealing with a financial setback, such as the loss of a job, can give a lawyer insight into how a juror sees the world.
“If a juror says, ‘It’s tough right now, but we’re tightening our belts and thinking of ways to start up a small business on the side,’ that tells me this juror is a master of [his] own destiny,” said Gabriel.
Such a juror would be favored by a defendant.
On the other hand, a juror who says, “I don’t know what we’re going to do. We have to move out of our house and I’m just really upset by the whole thing,” may be more susceptible to a plaintiff’s argument that “somebody did something to me,” said Gabriel.
Juries also tend to be more frugal in an economic downturn.
“There is a sensibility of, ‘Wait a minute, I’m going to award them a multi-million dollar verdict when I’m struggling to pay my mortgage and car payment?’” said Gabriel.
A glaring exception is that juries expect corporations to follow the rules — and will punish those who break them.
When Kosieradzki recently asked prospective jurors whether they expect corporate executives to know everything that is going on within their company, the answer was a resounding, “Absolutely.”
“Here’s the reason: We don’t expect the execs to be there, but we expect them to put together a team to tell them everything that is going on inside the company. That’s what justifies the kind of money they are being paid,” said Kosieradzki.
Hardship challenges
Some trial lawyers worry that in the current economic environment more jurors will be excused for financial hardship.
“That’s going to be a big issue. More jurors are likely to be excused and we’re not going to be able to tell what it’s doing to the pool,” said Ted Donner of Donner & Co. Law Offices in Wheaton, Ill., co-author of Jury Selection: Strategy & Science.
If more jurors who are concerned about losing their jobs are excused for financial reasons, that could skew the jury pool.
“If working Americans are excluded from jury service as a class, you’ll get an unbalanced jury,” said Donner.
Similarly, if jurors with families are excused in large numbers to take care of children or elderly parents, that would also have a big impact.
Typically, hardship decisions are made by judges outside the view or control of lawyers, but Donner suggests exploring hardship questions in written jury questionnaires.
However, he noted that this concern will mostly affect only longer trials requiring more than a few days’ absence from home or work.
This article originally appeared in Lawyers USA, Minnesota Lawyer’s national sister publication.
