A jury box can be a noisy place.
Each juror walks into the courtroom with his own preconceptions about the parties and the issues at stake. This “background noise” can interfere with a juror’s ability to hear the key messages integral to a litigant’s case.
Corporate defendants, particularly in complex, high-stakes litigation, have to take the time to identify and address these background noises. Starting this process early in the evolution of a case, while the elements of the story to be communicated are still being formed, is the most effective approach.
Unfortunately, many corporate counsel think of jury research as a tool to be used once a trial date is imminent and the case strategy has been largely developed. While there are some pre-trial research activities that are best conducted close to trial (e.g., juror profiling research or testing of an opening statement), there is important value in early jury research that is often overlooked.
Conducting juror perception research near the beginning of the litigation lifecycle can help corporate defendants develop an appropriate strategy that addresses and perhaps eliminates obstacles created by jurors’ perceptions that may stand in the way of a favorable outcome at trial.
This is particularly true in complex disputes in which opinion and perception research can help to focus trial strategy across multiple cases.

Good reminder

Publicity this year concerning Bayer’s problems with Trasylol (a drug used to control bleeding during heart surgery) is a good reminder of the issues facing a corporate defendant and highlights the potential benefits of early preparation.
This litigation is in its infancy. Plaintiffs have reportedly filed upwards of 200 cases, but given estimates that more than 20,000 patients died as a result of Trasylol, it is safe to assume that the number of lawsuits will grow significantly.
Bayer clearly faces a number of challenges. If the company and its corporate counsel choose to use preliminary jury research as part of its case preparation strategy, it will be far better armed to manage this litigation efficiently and effectively.
The central allegations are that Bayer knew, or should have known, that Trasylol carried an increased risk of kidney and cardiac problems over other options available to surgeons. Two independent studies published at the beginning of 2006 alluded to these risks. Bayer then commissioned its own study to investigate these risks and, despite having preliminary indications that the risks associated with Trasylol were substantially elevated, they did not disclose these results to the FDA in a timely fashion.
Bayer, like any corporation facing significant litigation, can save money in the long run if it chooses to employ preliminary jury research to inform trial preparation decisions that will have to be made during the months and years before the first case proceeds toward a specific trial date.
These savings can arise from more efficient use of attorney time and effort (e.g., more focused discovery, witness designations and deposition strategies), and from more favorable verdicts or settlements (by developing a defense story that is designed from the beginning to be compelling to the jurors).

Credibility

As part of developing the most persuasive story of the case, one of the fundamental questions jury research can also answer is to what degree jurors will find a company to be credible, and what are the underpinnings of that perception? Jurors’ perceptions of credibility are usually influenced as much by their preexisting impressions as their experience in the courtroom listening to the company’s case.
These broader perceptual issues, which underlie the specific allegations in a case, often shape the way jurors see the facts. If the “background noise” can be identified in advance, steps may be taken to help correct widely-held misperceptions that often motivate jurors to find against corporate defendants in the courtroom.
In accounting litigation, for example, jurors seldom have a clear understanding of the role of a routine auditor. These misperceptions interfere with jurors’ ability to understand the defense arguments in cases against accounting firms.
The accounting industry has never focused on correcting these misunderstandings outside of the courtroom. As a result, the in-court communications can be extremely challenging. It’s this 00type of underlying “background noise” problem that led to the demise of Arthur Andersen. If the public had a clearer understanding of what Andersen should have been doing when Enron was falling apart, Andersen may have stood a better chance of surviving that litigation and its public perception crisis.
In a drug case, anti-pharmaceutical industry feelings are well known and documented by the national polling agencies. But, how do these perceptions shape prospective jurors’ feelings about a lawsuit against a pharmaceutical company? Learning how these commonly held beliefs influence jurors’ ability to understand issues in a particular case is the first step in crafting the defense story.

Consistent communications

Once these obstacles are identified, research can be designed to help craft a communications strategy that specifically targets these preexisting beliefs. A critical aspect of the communications plan will be to identify who the most credible spokesperson should be. Instead of the traditional “expert,” perhaps it’s the voice of the customer who has benefited from the product or service that will be most credible, and in the best position to influence the audience.
Depending upon the specific issues identified in the initial research, it may be important that these messages become part of a public relations campaign – whether through traditional print or broadcast media at the national level, or via more targeted local communications channels, well before the first case goes to trial. The same or similar messages can be woven into the specific trial strategy.
Typically, we see a lack of interaction between the corporate PR or marketing departments (which tend to be focused exclusively on their primary goals of investor or sales-related communications) and the in-house litigation department.
Accordingly, the messages most corporations communicate to the public are much less likely to include a component that can influence thinking on the foundational beliefs that can shape jurors’ perceptions in the courtroom. As a result, there are lost opportunities to use marketing communications to help inform and educate potential jurors.
Corporate communications and trial communications should be developed early to address jurors’ common misconceptions and begin to build the foundation on which many jurors make decisions about the liability of a corporate defendant. The most effective communications strategy will include integrated messages that are important to all of a company’s core constituencies – investors, customers and potential jurors.
With a multi-pronged communications strategy, designed to drown out or eliminate the “background noises,” the corporate defendant will increase the likelihood of a favorable outcome at trial while perhaps leading to increased sales and investor confidence at the same time.

Nancy L. Neufer ([email protected]) and Scott L. Berman ([email protected]) are fact-based litigation consultants with HawkPartners, a consulting firm with offices in Boston, New York City and Washington, D.C.