- Christopher J. Dominic, Laura L. Dominic
DON’T BE A CORPORATE MOUTHPIECE IN YOUR OPENING STATEMENT
One part of our case strategy sessions involves creating an outline of the case narrative. We call this the Case Story, and it typically entails outlining topics that serve as the segments of your overall case presentation. When working with attorneys representing corporate defendants, we often find ourselves suggesting an alternative strategy to the natural tendency to make the start of the story, “The Corporate History” or “The Good Work of the Company.” That tendency is natural and intuitive given that the plaintiff will have just completed an hour-long attack on your client’s conduct. It makes sense to want to paint your client in a good light, to make the jury “like” your client. But more often than not these attempts backfire. The reason is that the “public relations pitch” (as we like to call it) is almost always unrelated to the issues in the case. While it might be true that, “Acme International has received the Top 100 Places to Work award for the last six years in a row,” or that, “CorpCo has been an anchor of the community, donating millions of dollars to charities such as the Wings of Heroes and Champions of the Brave,” these kinds of facts do not help jurors understand why your client failed to add a warning label to the underside of the product, or how the patent your client allegedly infringed is invalid.
We are not saying you should not introduce your client and provide a brief company history to the jury. The mistake, however (which we’ve seen over and over), is spending any more than a minute or two in opening on the “sunshine.” Jurors have an aversion to this that ranges from, “I think this is irrelevant” to “I really hate this and now distrust you.” How do we know? They have told us — in Post Trial Interviews, Mock Trials, and Shadow Juries. Every few years we attempt a fresh angle at the PR pitch in a focus group or mock trial. After all, it can’t hurt to try. But the results have been consistently poor. The reaction to the PR pitch is often one of backlash to what many increasingly skeptical jurors consider a thinly veiled sales pitch. In the worst-case scenario, the PR pitch is seen as an intentional diversion from the defense’s arguments and evidence the jurors “should” be hearing. Furthermore, all that discussion of Acme’s accomplishments “raises the bar” for what is expected out of a big, powerful, public company like Acme.
What do we hear jurors say?
He spent so much time talking about all the good things about the company; he must be really worried about the bad stuff.
She should have focused more on explaining why the company failed to put on a safety guard than on how great the products are.
What in the world does the employee benefits program have to do with stealing trade secrets?
Try This Instead
1. Start your opening with your primary theme (more on this here); not the corporate history. Reframe the case out of the gates. Start by telling the story of the plaintiff’s poor choices. Or talk about the poor attendance record that led to the performance plan. Then after you have put the focus on the other party, step back and take a moment (really, a moment; see recommendation #2) to introduce the company.
2. Limit the company introduction to two minutes or less. This advice also applies to examining corporate witnesses. Choose witnesses who have direct knowledge about the facts of the case, and move quickly to those facts. Limit unrelated questions about the company to one or two at the most. Jurors tell us they don’t understand (or like) decisions to put on the “corporate face” who has nothing to add about the issues in the case. They perceive these kinds of witnesses as pandering attempts to get the jury to like the company.
3. Represent the company in an informational, not persuasive way. Jurors know that trial attorneys are advocates, but credibility is quickly lost when that attorney appears more as a used car salesperson. Give them the facts and let the jurors draw their own conclusions. For example, “Acme started back as the Abner Cooper Moore and Elijah Company in Anytown in 1903. As the company grew over the years, they branched out into several different ventures with different products and services in a wide variety of markets all branded with the Acme logo. They moved into building products, mining, pharmaceuticals, and entertainment. The company is now ranked number 1 or number 2 in all of their businesses in their respective markets. Some of you might have heard of how they fly every employee to an all staff meeting in Anytown once a year.” That’s it. You’re done.
4. If you insist on talking more about the company, make sure the “pitch” is relevant. For example, in a race discrimination case, talking about the “best places to work” awards could be very important, especially if the award is for “best places to work for minorities.” Talk about all the things the company has done to make it “a best place to work.” Trainings, policies, corporate culture initiatives, and communication workshops all become directly relevant to the issue of discrimination.
There are ways to convey to the jury that your company is upstanding, trustworthy, and fair without moving to the PR pitch. Try the alternatives above in your next mock trial or focus group to see how they influence the way jurors perceive your case.