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Tuesday, June 09, 2009

From the ASTC Conference: Effects of the Economy on Jury Trials

I recently returned from Atlanta, where I was attending the annual conference of the American Society of Trial Consultants.

A lot of informal discussion, at the breaks, in the halls and at the bar, centered around the effects of the economic downturn on juries. What were they doing differently now?

Beth Foley chaired a session on the effect of the economy on damage awards, but the discussion freely flowed into behavioral areas other than damages. No-one really had any data, per se, unless you think of data simply as the plural of "anecdote." That said, there were some interesting conjectures offered, some of them supported by personal experiences with trial juries or mock jurors.

Welcome to jury duty, Mr. Executive Vice President for South Asian markets.
Several attorneys and consultants noted that massive layoffs of white-collar workers has resulted in executives being available for both pretrial research and actual jury duty. This is generally seen as beneficial for corporate defendants because these professionals will understand the decision-making structure of business better than typical jurors. They won't be so quick to adopt the "zero-risk fallacy" or assume that all corporate mistakes are the result of negligent conduct.

Let's not break the bank here!
Tara Trask commented that she had seen a definite upswing in arguments by research subjects pertaining to driving companies out of business. People have watched seemingly indestructible multinational conglomerates go under in the past year. This has increased sensitivity to the vulnerability of all companies. Jurors may think twice about an award large enough to bankrupt a company that provides jobs in their own community. Certainly, such arguments can no longer be dismissed out-of-hand.

I'm so mad, I could just spit!
There continues to be a lot of pent-up hostility towards big companies and firms in the financial sector. We know that jurors give vent to their desire to punish corporate defendants when calculating compensatory damages, despite instructions to only consider such factors if punitive damages are warranted. In the present environment, I would expect the desire to punish to infiltrate these values even more.

Where's the check with my name on it?
There has been a lot of discussion lately about the value of identifying jurors with a "just world" attitude towards the world. There are several versions of this perspective. The more people who feel themselves to have been "mistreated" by the world, perhaps because they have been laid off or have lost a house of foreclosure, the more potential jurors there are who will be reluctant to give a "hand-out" to someone else. The thinking is along the lines of, "Hey, times are tough. We've all suffered. You don't see anyone giving me free money, do you? Why should I bail out this guy?" I would think that any plaintiffs attorney would do well to probe for such attitudes during voir dire.

I wish I could tell you, kind readers, that we have reams of definitive data, pinpointing exactly how the current economic climate is affecting verdicts and damage awards. Alas, all we really have are some basic trends, a few anecdotes and thoughtful speculation from some pretty intelligent and experienced jury experts. I am afraid it will have to do for now.

For those of you who might be new to The Jury Box Blog, you can read a couple of pieces I have previously published on my own perspective on the connections between economic climate and damage awards here and here.

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