Humanizing the Corporate Defendant

Transcription

1 Defese Strategies Trial Strategies Humaizig the Corporate Defedat For a defedat i civil litigatio, a jury verdict with a lot of zeroes is a very bad thig, ad for some compaies, devastatig. This article discusses practical presuit ad litigatio strategies compaies ca use to miimize juror bias ad avoid staggerig jury verdicts. The overall goal of this step-by-step approach is to covey a compay s huma face so that the facts that a compay presets to cosumers ad jurors prove that a compay acted with forethought for ad attetio to its customers ad is a good corporate citize. This approach begis before a lawsuit eve is filed, cotiues through the litigatio process ad culmiates at trial. Take a Earest Approach Lawyers defedig a compay s lawsuits cost a lot of moey. Sometimes, after the lawyers are paid a lot of moey, the compay pays eve more moey to settle the case. A compay ca ofte avoid this through a dedicated effort to resolve claims presuit. Cosider a formal early evaluatio that requires outside cousel to make a settlemet recommedatio withi 90 days. I additio to savig o moey that a compay will pay to outside attoreys, oce the compay develops a early evaluatio track record with opposig cousel, matters that ultimately do result i litigatio are frequetly coducted with less vitriol. Additioally, if a compay has resolved prior claims amicably with a particular opposig cousel, whe a matter does go to trial, that opposig cousel will likely approach the trial with cosiderably less aimosity ad fervor. Be Proactive Whether it is because a compay has received a umber of cosumer complaits or for some other reaso, sometimes i-house cousel ca predict future litigatio. Whe this happes, be proactive. Hire a trial attorey to assist i developig a frot-loaded actio pla. Idetify ad iterview ivolved employees ad evaluate their witess skills. Review ad cosider collectig documets. Ad marshal the facts ad themes that will demostrate to a jury that the compay coducts busiess with due care. I a persoal ijury case, the defiitio of due care is usually the istructio the jury will receive to decide the case: due care is coduct that a reasoable perso exercises i a particular situatio, lookig out for the safety of others. I a commercial case, due care meas that a compay s coduct was truthful, fair ad above-board. I short, whether a commercial or persoal ijury case, the jury will eed to hear those facts that prove that the compay is a good corporate citize. I additio to effectively respodig to opposig cousel s attacks, it is the trial attorey s job to fully ad effectively commuicate those facts that prove that the compay acted with due care. What does this mea i terms of humaizig a compay from a juror s perspective? It meas, for istace, that at each stage of product developmet, if a product is at issue, a compay eeds to establish that it exercised forethought ad attetio to the quality of its product ad the safety of its cosumers. The same holds true if a process or cotract is at issue. A compay should examie the followig areas i developig its due care facts. By Cheryl A. Bush ad Patrick G. Seyferth Records Maagemet Compaies should have a cosistetly executed records maagemet system i place, eve before litigatio esues. Busiess records should be readable, usable ad regarded as authetic, with authorized users able to access records efficietly. Such a system ca help prevet figerpoitig or spoliatio claims by a oppoet whe a compay caot locate requested documets or records durig discovery. A effective records maagemet system allows you to explai to a jury, through a huma- busiess ratioale, rather tha some malfeasace ratioale, why certai documets o loger are available. A solid records maagemet system should have established procedures for: The timely destructio of appropriate documets as retetio periods expire Retetio of oly those records with a busiess eed Retetio of records as required by statute, regulatio or cotract Established litigatio hold procedures to esure resposive documets are ot destroyed oce litigatio or a govermet ivestigatio is uder way Quality Documetatio Traiig ad cocer about quality documetatio should begi prior to ay lawsuit. Corporate employees eed to uderstad the impact of their commuicatios, particularly give that may compaies work i a global settig that relies o electroic documetatio as the primary meas of commuicatio. Corporate legal departmets should implemet traiig o ad use of stadards for creatig ad draftig iteral ad exteral commuicatios, icludig but ot limited to, documets, s, Cheryl A. Bush is the maagig parter, ad Patrick G. Seyferth is a parter, of Bush Seyferth & Paige (BSP) i Troy, Michiga, where they co-lead the firm s atioal trial practice for product liability defese. I 2008, Ms. Bush was iducted ito the America College of Trial Lawyers ad has bee a member of DRI sice Mr. Seyferth has extesive first-chair trial experiece, with favorable outcomes i major product liability ad commercial litigatio cases. He has bee a member of DRI sice Both authors serve o DRI s Product Liability ad Diversity Committees. BSP is a certified woma-owed law firm. 14 I-House Defese Quarterly Witer DRI. All rights reserved.

2 cotracts ad letters. It is importat for employees to realize that a compay may be required to produce ay form of writte commuicatio, especially s, i litigatio. A betwee two employees about off-hours escapades is ot oly embarrassig, it ca create the impressio that the compay s employees do ot thik carefully about their job resposibilities. Product Testig Desig ad developmet testig, ad eve litigatio testig, serves as cocrete proof that a compay cares about customers, cosumers ad cliets. May product decisios are based o egieerig judgmet, fouded o years of educatio ad experiece, without the backig of desig ad developmet testig. However, whe a decisio is based solely o egieerig judgmet, without the cofirmatio testig, the use of litigatio testig ca prove to a jury that a compay exercised accurate egieerig judgmet. Whether the product at issue is a drug, a medical device, buildig materials, heavy equipmet, a rail-tie, a automobile or a toaster product testig offers a effective, uderstadable way to explai to a jury just how much care, cocer, time, resources, commitmet ad work employees put ito the product at issue. Warigs ad Istructios A compay ca show that it exercised due care through its warigs ad istructios, which ofte demostrate geuie care ad commitmet to the well- beig ad safety of its cosumers. Warigs ad istructios explai that a compay s o- product warigs uderwet rigorous developmet ad evaluatio, especially whe compared to the compay s competitors. A compay ca retai a outside huma factors expert to review proposed product warigs ad istructios, before they are dissemiated to cosumers. Moreover, if the federal govermet was i ay way ivolved i product warigs, the Federal Register may be a gold mie of potetial trial exhibits. Recalls It is impossible to prevet 100 percet of huma error. Eve i cases i which a compay issued a product recall, the compay must preset due care facts to the jury. These facts ca provide cocrete evidece of whether: The compay reacted promptly oce it leared of the problem The compay worked with a federal agecy i fashioig a appropriate remedy Whether a commercial or persoal ijury case, the jury will eed to hear those facts that prove that the compay is a good corporate citize. The federal agecy approved of the actio that the compay took The compay spet millios of dollars effectuatig the recall or corrective actio The compay wet above ad beyod what its competitors have doe whe faced with a recall Maufacturig Maufacturig compaies should effectively commuicate to employees ad keep a writte record of due diligece requiremets ad procedures, product verificatios, quality cotrol audits, secodary measuremets ad documetatio i place to esure a safe ad comprehesive maufacturig process. Regulatory Compliace Aother importat way that a compay ca demostrate its huma customer care ad cocer is through kowledge of ad compliace with all applicable regulatios ad stadards related to its product, service or idustry. Examples of possible regulatios or statutes iclude, Iteratioal Orgaizatio for Stadardizatio (ISO) stadards, Federal Commuicatios Commissio (FCC) stadards, Natioal Highway Traffic Safety Admiistratio (NHTSA) regulatios, Cosumer Product Safety Commissio (CPSC) regulatios ad the U.S. Food ad Drug Admiistratio (FDA) regulatios. May compaies have iteral guidelies ad stadards that go above ad beyod applicable govermet regulatios or requiremets. Evidece that a compay ot oly met all applicable govermet or idustry regulatios ad stadards, but wet above ad beyod by creatig ad complyig with its ow iteral stadards, is highly effective i covicig juries that the compay acted with due care. Advertisig ad Marketig It is importat that a compay has i place a effective strategy to establish that it exercised due care i its advertisig ad marketig. For example: A compay ca develop ad implemet policies ad procedures for the review of all of its advertisig ad marketig materials, icludig prit ad broadcast campaigs, brochures, websites, catalogs, direct- mail literature, press releases, speeches, sales- traiig films, employee traiig ad service semiars. A compay ca idetify a outside huma factors expert to review its advertisig ad marketig materials. A compay ca develop cotiuig educatio protocols for traiig o advertisig ad marketig issues. What to Do i Discovery May opposig attoreys would like othig more tha to avoid trial by obtaiig a default judgmet agaist a compay for discovery abuse. However, a out-adout default is rare, ad the greater dager is that a compay s purported discovery abuse becomes a mii-trial i frot of the jury. The real trial issues the become obscured ad allow opposig cousel to argue that the compay somehow hid bad evidece, potetially iflamig the jury. You ca miimize the likelihood that this will happe by beig prompt ad resposive to all discovery requests ad disputes. Respodig to Writte Discovery If ever i doubt about the discoverability of a documet, produce it. Eve if it appears I-House Defese Quarterly Witer

3 Defese Strategies to be a close call, a judge will probably order you to produce it. Further, a compay should draft every sigle discovery respose assumig that it will be the subject of a motio to compel or will be blow-up as a exhibit ad show to the jury. Put objectios at the ed of the respose, ot the begiig. It will soud more forthcomig. Here s a example: Iterrogatory: Idetify every safety feature o the 1998 widget. Iflammatory respose: The compay objects to this request because it is vague, udefied, overly broad ad uduly burdesome. Respose that a oppoet will ot read to the jury: There are so may safety features o the 1998 widget that it is impractical to list them i respose to a iterrogatory. I respodig to request for admissios, a compay should try to avoid resposes that state that the compay admits. Oly crimial defedats admit that they did somethig bad. Here s a example: Request: Admit that the compay maufactured the widget. Respose: The compay maufactured the widget. Respodig to Discovery Disputes Respod i writig to ay discovery dispute withi 24 hours, eve if all you ca write is: I received your letter raisig questios about the compay s discovery resposes. I m really jammed right ow, but I will get back with you before ext Wedesday. Lead cousel should sig the respose. The message that this will covey to the court: the compay took this very seriously. Remember, if it s ot i writig, it ever happeed. Keep every promise made, icludig promises about whe you will produce documets. Letters respodig to discovery disputes are ot simply correspodece to opposig cousel they are exhibits to your oppositio to motios to compel, which accurately demostrate that your compay is the model of good faith. Respodig to Request for Witess Desigatios A compay s cousel should write a letter to opposig cousel offerig a first roud of Avoid resposes that state that the compay admits. Oly crimial defedats admit that they did somethig bad. depositios that respods to each request for desigatio, settig clear boudaries o what the witesses will testify about. If opposig cousel agrees, great. Whether opposig cousel agrees or ot, you eed to serve a formal respose to the depositio request i advace of depositio dates. Make sure that at the begiig of a depositio, the scope of the particular witess s desigatio is stated o the record. Idetifyig Desigated Compay Witesses It is very likely a opposig party will ask a compay to preset for depositio persos kowledgeable about a litay of topics related to the claims or defeses i the case. Traditioally, compaies have take a less is more approach to these depositios, seekig to miimize the umber of employees preseted for testimoy by producig oe or two depoets to hadle multiple topics. Istead, cosider a more is more approach. By producig a umber of prepared, iformative witesses, a jury has the opportuity to meet more of a compay s people ad comes to uderstad better all the work ad effort that wet ito the coduct or decisios at issue. Produce those employees for depositios who will best provide the jury with a comprehesive picture of the care that your compay takes i its coduct ad decisios. Preparig the Compay Witess A compay should approach compay witess depositios carefully ad thoughtfully, with adequate preparatio. Whe employees testify covicigly ad passioately about what they do, it highlights the huma side of your compay. The Mechaics of Compay Witess Preparatio Proper preparatio of compay witesses requires a miimum of two meetigs, ad perhaps several more. The iitial meetig with a witess has several goals. First, it gives a ovice compay witess a overall uderstadig of the testimoy ad trial process, as well as what is ivolved i the particular lawsuit. Secod, it allows cousel to assess a employee s skill-set as a witess ad get a uderstadig of the witess s overall kowledge of the project, product or cotract. Reviewig documets ad discussig the witess s idividual role, ad the roles of others, provides both trial cousel ad the compay with a roadmap of areas that the compay may still eed to explore or clarify. Third, if the case is techical or documet- itesive, at the close of the first meetig you should provide the compay witess with a collectio of relevat documets. This collectio should cosist of Documets that will help the witess remember ad explai what happeed Documets that your oppoet may use i the depositio or at trial Documets that your cousel may use o re-direct at the depositio Fially, ed the first meetig with a homework assigmet. Ask your compay witess to review the collectio of documets. The witess should feel comfortable with the cotet of the documets before the ext depositio preparatio meetig. Oce the witess has a comfort level with the documets, the secod or third preparatio sessios ca focus o askig the witess questios that opposig cousel will, might or should ask, startig out slow, ad progressig to harder, more adversarial questios. The Substace of Compay Witess Preparatio Oe traditioal depositio preparatio strategy, explaied to a witess variously as, Aswer yes or o if you ca, or The more talkative a witess is, the greater chace of bluderig ito trouble or If you say less tha 150 words, I ll buy you luch, ca lead to a staggerig jury verdict. First, it is essetial that depositio 16 I-House Defese Quarterly Witer 2010

4 testimoy be truthful ad complete. Secod, cryptic yes or o aswers will ot humaize a compay. Witesses are sometimes worried that opposig cousel will ask them questios outside their area of experiece. Oe way you ca give employees a comfort level i testifyig is to use the aalogy of a witess box. Iside the witess box are the employee s educatio, experiece, work history ad commo sese. If a employee is asked a questio ad the aswer is ot i the witess box, the employee should feel free to refer the opposig attorey to the appropriate perso or group at the compay who may be able to aswer that questio. Sometimes, employees are still usure whether the aswer to a depositio questio is i their persoal witess box because they kida- sorta- maybe- probably thik that they kow aswers. I this circumstace, a witess should be ecouraged to rely o his or her persoal comfort level i givig such testimoy uder oath. Oe good guidepost is to give employees your boss s boss s boss advice. If the employee s boss s boss s boss asked the employee to aswer that same questio, would the employee aswer it o the spot, or would he or she respod, I ll get right back to you. Re-Direct Examiatio Too ofte, whe opposig cousel fiishes askig questios at a employee depositio, the attorey defedig the depositio says, to him- or herself, whew, ad o the record says, We ll reserve or No questios. However, at trial this allows opposig cousel to cherry pick soud bites from the depositio: soud bites that will ufairly cast the compay i a egative light. There is a direct correlatio betwee urebutted employee soud bites i the oppoet s casei-chief ad staggerig jury verdicts. Assume the depositios of the compay s witesses, especially if videotaped, will be read or show to the jury. Therefore, they are ot just depositios: They are trial testimoy. Trial cousel for the compay must be prepared with trial exhibits to coduct a thoughtful, complete re- direct examiatio at the depositio. If the oppoet uses the depositio at trial, the compay s rebuttal is ofte admissible i the oppoet s case-i-chief. The Employee Depositio Preparatio Checklist Depedig o the case, it may be helpful to ru short, mock depositios for compay employees facig a depositio for the first time, particularly if your oppoet is a adept questioer. Requirig your compay witess or trial represetative to respod to tough questios durig preparatio sessios will miimize iaccurate aswers durig the depositio. The followig provides a checklist, for use i preparig a compay employee for depositio: Always tell the truth. Remember, tellig the truth meas more tha just truthfully aswerig questios. Thik about what is i your witess box before the depositio. Be proud of your work ad the decisios you made. Be cofidet. Explai why you did what you did. If you made a mistake, say so. Be polite ad respectful: Do t argue. Testifyig uder oath is importat. Do t feel rushed ito speakig as soo as opposig cousel stops talkig. Some lawyers ask log-wided questios but they oly care about gettig the witess to agree to the three words i the middle of the very log questio. Liste carefully. Words used i depositio are used accordig to their precise dictioary defiitios, their precise legal defiitios or their every-day meaigs. It is importat to uderstad which defiitio opposig cousel is usig. Depositios are ot ormal, everyday coversatios. Do t guess what the ext questio may be. Util you have give 50 depositios, do t try to be fuy. You do t have to give a differet aswer just because the opposig attorey asks the same questio agai. I do t kow ad I do t remember mea two differet thigs. If you do t remember, it s okay to say so. I do t kow may be a icomplete aswer. If opposig cousel is cofrotatioal ad abrasive, it is okay to say, Please do t yell at me. The witess cotrols depositio breaks, etc. Just because the opposig lawyer says somethig is a fact does t mea it really happeed, ad just because a documet existed six years ago does ot mea that it exists today. Always tell the truth. Frequetly, however, opposig cousel will ot eve seek to admit the employee s depositio testimoy whe a proper re- direct examiatio has bee coducted. What to Do for Trial Select a Meaigful Compay Represetative The simplest way to humaize a corporate cliet is to let the jury get to kow as may people from the compay as possible. Too ofte the selectio of the compay represetative the perso who will sit with trial cousel durig trial is a missed opportuity. I every civil jury trial, the decisio or coduct of compay employees is squarely at issue. The jury most wats to hear from the compay employees, ad it is oe of these people who makes the best compay represetatives. Sometimes the compay represetative is a i-house attorey supervisig the case, but it is ot always advisable for a attorey to fulfill this role at trial. Every member of the jury has take time from his or her ormal job to decide this importat case. Aother attorey at cousel table commuicates little about the compay s pride i its coduct ad may commuicate that oly the lawyers care about the jury s decisio. The best compay represetative, particularly i a case that has staggerig verdict potetial, is a employee who was persoally ivolved i the coduct or decisio at issue. This perso eeds to come to trial every day; sit ext to trial cousel; appear iterested ad respectful; ad had the occasioal ote to his or her lawyer. The compay represetative eeds to be there whe the opposig expert accuses him or I-House Defese Quarterly Witer

5 Defese Strategies her of fraud, ufair dealig, carelessess, recklessess or eve murder. That perso eeds to be there to look the jury i the eye whe the verdict is read. It is helpful to select the best corporate represetative early i the case. The more ivolvemet a compay represetative has i reviewig documets talkig about why the compay did a good job, ad his or her resposibility for a particular product, service or cotract the more persoally ivested he or she will become i assistig with discovery ad trial. Expect the compay represetative will testify at trial whether or ot he or she is listed o a witess list. Local Cousel as a Asset Trials frequetly happe i small tows, where everyoe kows oe aother. Give serious thought to hirig a local attorey to assist the compay s lead cousel at trial. Local cousel is likely to have a greater uderstadig of potetial jury bias. Iterviewig local cousel is a effective way to discover iformatio about jury pools, local judges, politics ad ay bias that is particular to that jurisdictio. It also may be helpful to coduct some jury verdict research to idetify what type of jury bias you may face at trial. It is absolutely ecessary that the local attorey actively ad meaigfully participates at trial, especially durig voir dire ad direct/cross examiatio of importat local fact witesses to miimize potetial jury or veue bias. Do t Miss the Voir Dire Opportuity Voir dire is the first opportuity the trial team has to humaize the compay for the jury. This is the best opportuity to help jurors idetify with the people they will be hearig from. As ofte as possible, refer to the compay s employees by ame. Select some of the issues to be tried, ad ask potetial jurors if they have faced those same issues. For example, if opposig cousel will argue the compay is a bad compay because it destroyed documets, ask a potetial juror whether, i his or her job, he or she saves every sigle piece of paper created, set or received. Whe the aswer is o, ask Why ot? If a compay clearly made a mistake that has led to litigatio, the most huma thig trial cousel ca do is ackowledge the mistake i voir dire (ad opeig ad closig statemets). Embrace Bad Documets or Facts Trial cousel for the compay should ot hide from challegig or egative documets or facts, but istead proactively discuss them, as early as possible, with the jury. Sometimes bad documets are othig more tha opposig cousel s argumet about selective portios of oe documet. Whe read as a whole ad whe the opposig cousel s selective highlights are put ito cotext the documets ca assist the compay i establishig it acted with due care. While bad documets or facts ca lead to a staggerig jury verdict, avoidig them will oly make the situatio worse. Mock Trials I cases headed for trial, the best realworld test of jury bias is a mock trial. The most effective mock trials are held i the same or highly comparable jurisdictio as the jury pool. Although compay trial represetatives ad witesses should ever participate i mock trials directly, mock videotaped direct ad cross- examiatios ca be doe i advace ad played for the mock jurors. Apart from disclosig potetial jury bias, mock trials are a ivaluable tool i refiig trial themes ad allow trial cousel to emphasize the themes that work ad elimiatig those that do ot. I cases with a smaller verdict potetial, a jury focus group is a cost effective optio. Trial Testimoy ad Exhibits Above all, the jury eeds to uderstad what is beig said ad described durig trial. Attoreys ad corporate witesses should use commo laguage whe testifyig. The due care facts behid the product or cotract should be described to the jury i plai laguage ad with everyday images. Whe offerig a trial exhibit, it should coform to the six- secod rule. A juror should uderstad exactly what the exhibit is commuicatig i six secods or less. The more complicated the exhibit, the less likely the jury will hear the explaatio ad how it proves the compay s due care i the matter at had. Coclusio The best way to humaize a compay throughout all stages of litigatio is to have a proactive, frot-loaded strategy demostratig facts that show forethought ad attetio was give for the quality of the compay s products or services ad the safety of its customers. Implemetig practical steps which demostrate a compay is a good corporate citize ad coducts itself with due care will miimize the potetial for staggerig jury verdicts. 18 I-House Defese Quarterly Witer 2010

6 The Product Case Witess Box Maufacturig (Corporate Witess) Testig (Corporate Witess/Experts) Third-Party Commuicatios (Corporate Witess) Warigs/Marketig (Corporate Witess/Experts) The Witess Box The Compay Represetative Educatio Experiece Work History Commo Sese Applicable Stadards/Regulatios (Corporate Witess) Ijury Mechaism (Biomechaics Expert) Costs (Corporate Witess) Subject Icidet (Experts) The Commercial Case Witess Box Terms & Coditios (Corporate Witess) Root Cause Aalysis (Corporate Witess/Expert) Third-Party Specificatios (Corporate Witess) The Witess Box The Compay Represetative Educatio Experiece Work History Commo Sese Warraty (Corporate Witess) Key Documets (Corporate Witess) Costs/Damages (Expert) I-House Defese Quarterly Witer