Humanizing a Corporate Defendant During Litigation and at Trial
By Eric Rudich, Ph.D
Q: Why is it important to humanize the corporate defendant?
Many jurors view corporations as faceless entities with unlimited resources to compensate plaintiffs. It is important to humanize a corporate defendant to counter these perceptions. Humanizing a company involves showing jurors that its organization consists of people who possess the same values as them. The corporate story and company values may be tangential to case issues but are critical for jurors’ verdict determinations. Depending on the type of case, different company values or attributes may be more effective in humanizing the corporate defendant. For example, in a case involving allegations of corporate greed or “profits over people,” counsel may humanize the corporate defendant by telling its story of humble beginnings as a family business. In a products liability case with allegations of a defective crib or stroller, it will be more effective to emphasize the company’s safety rules and protocols and highlight that the corporate witness is also a parent with the same safety concerns.
Q: What are the obstacles a corporate defendant must overcome during litigation and trial?
In general, corporate defendants may contend with deep-rooted, anti-corporate bias and stereotypes such as, “corporations only care about the bottom-line,” and “corporations put profits before people.” However, in recent years and with Millennial and Generation Z jurors comprising larger percentages of jury pools, anti-corporate bias has become even more pervasive. Corporate defendants are now the recipients of the collective corporate distrust resulting from the financial crisis, recession and various instances of corporate malfeasance. Corporate defendants are naturally viewed in the “Goliath” role of the “David v. Goliath” paradigm, with perceptions of having deep-pockets and unlimited resources to fight against “the little guy”. In fact, research indicates that jurors hold corporations to different standards of care than they do individual defendants given identical sets of facts. An obstacle inherent in the defense of a corporate defendant is it is likely to be perceived as a faceless intangible conglomerate or entity in a stark contrast to a human, relatable and often sympathetic plaintiff.
During the litigation process, it is critical for the corporate witness to understand the overall case strategy and what it is opposing counsel are trying to accomplish at the deposition, in order to respond in a way which is consistent with the case theory. The corporate witness should also be prepared and mindful of questions opposing counsel may ask, and of how the questions may be phrased to elicit responses to advance their case. For example in cases involving safety, whether it is a products liability case, or a case involving an assault on a premises, the witness should be aware and prepared that they may be asked questions about a “safety rule” violation, which will indicate that the plaintiff counsel are using a reptile-type strategy to advance its case. There are critical ways to respond to such questions. Without this preparation, corporate representatives may provide testimony that it is antithetical to its company values.
Q: When should the “humanization” process of the corporate defendant begin?
Once a complaint is filed naming the corporate defendant as a party to the lawsuit, the process can begin. At the same time, corporations should not be in a rush to identify the corporate witness right away. It is worth taking the time to evaluate plaintiff’s claims, story, and case themes so that the corporate defendant can ensure they identify the best company representative to have deposed.
Q: If there is some leeway in selecting a corporative representative, who should be chosen?
Depending upon the nature of the lawsuit and the structure of the company, there may be an obvious choice for a representative who is the most knowledgeable about the specific areas in which she will testify while also conveying the company history and its values. However, larger defendants will often have several options for selecting a corporate representative who will be the “face” of the company throughout the litigation. There is a distinct advantage when the corporate defendant is able to control the selection of the corporate representative during litigation. Two connected factors when selecting a corporate representative are locality and relatability. For example, if a lawsuit is filed by a plaintiff who is a factory worker in the Midwest, and the case will be tried in the Midwest, in most cases, all other factors being equal, it makes much more sense to have a corporate representative from the Midwest office, than a representative from the corporate office in New York testify. The witness should also be able to articulate the story of the company. Did it have humble beginnings? Was it family owned? How did it start? What was the vision of the founder? All of this information makes the company a more relatable entity and can be incorporated into the defense of the case.
Q: What if there is no leeway in selecting the corporate representative?
There may be several reasons why a defendant may not be able to select its corporate representative. Perhaps it is a small company, with one obvious choice for a representative or perhaps the representative is the person most knowledgeable about the subject matter. For a company representative of a small company, there may need more preparation to prepare for his deposition or trial particularly if he or she has had no prior experience with litigation. Many of these witnesses will have concerns about their testimony and whether it will impact their employment. These concerns can negatively impact their testimony. Such witnesses may appear stressed or worried about their testimony which will cause jurors to question their credibility. Once such concerns are identified during witness preparation, it will be easier for the witness to feel at ease and become much more effective when testifying.
Q: What steps should I take to humanize the corporate defendant during voir dire?
If you are in a jurisdiction with an attorney (as opposed to a judge) led voir dire, you can use voir dire to not only question prospective jurors in a way to identify anti-corporate bias, but also begin to set a foundation, and introduce the company’s story, vision, and mission, while tying this information to the overall defense theory of the case. However, voir dire is often limited, and counsel may not be able to provide this information during jury selection.
Q: What steps are some general steps that can be taken to humanize the corporate defendant at trial?
One important strategic question for the trial team to answer is whether the corporate representative should be present for the entirety of the trial. If the court allows, we recommend that the corporate representative sit at the counsel table throughout the trial. Her appearance demonstrates that the defendant is taking the plaintiff’s claims seriously. Moreover, if the corporate representative is not present, jurors may draw an adverse inference and conclude that the defendant is not respecting the plaintiff’s allegations. This may increase jurors’ desire to send a message to the defendant and award higher damages in the event they find that the defendant is liable. The corporate representative’ will typically be introduced during voir dire. During opening statements, counsel may then provide more information about the history of the company, its roles and values. Through her testimony, the company will be more humanized and relatable to the jury. In the same vein, the corporate representative will become more than an executive in a suit, once the jury hears her story. Perhaps they started in the mailroom, working their way through the ranks, while the company paid their college tuition. Maybe they saw how many jobs the company created in their hometown and always wanted to work there. Perhaps the company employed one of their parents and they remember the company outings from the time they were a child or maybe the company was a startup and the wanted to be part of the exciting innovation that would improve communication/technology/healthcare. Critically, these stories allow juries to connect to the corporate representative and the company she represents.
