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The Advantage Blog

  • Jeffrey Jarman Ph.D., Tsongas Litigation


The COVID-19 pandemic has elicited a variety of responses by businesses trying to build or maintain good relationships with consumers. Anyone watching television has been bombarded with commercials from companies expressing that they “care” and that “we will get through this together.” Some businesses are going beyond expressions of support and taking steps to help the response to the pandemic, including donations of personal protective equipment and other support for health care workers.

As trials begin again in the U.S., companies that defend themselves in front of juries will be confronted with a difficult choice — should they share with jurors the actions they took in response to the pandemic? Sharing such facts with jurors could enhance the credibility of the company, but it could be viewed as pandering or trying to capitalize on a tragedy. We recently completed a research project to help guide companies in deciding whether it will be beneficial to share their COVID-19 response at trial.

It is first useful to contemplate why a company would consider sharing such information in the first place, since it is highly unlikely to apply to the facts of the case. Plaintiffs hope the jurors will adopt a framework where they perceive a greedy company that will not do what is needed to protect its customers, patients, or employees. Credibility — including goodwill, trustworthiness, and a positive image, usually built on acts of good corporate behavior in the community — can help offset the story being told by the plaintiff that the business is uncaring and, most likely, puts “profits over safety.”

The reasoning used in this argument is a type of informal logic called person/act reasoning. Person/act arguments are a type of co-existential reasoning or argument by sign. Sign reasoning suggests that one thing can act as a sign of another thing, even though no direct causal connection is observed. For example, if you step outside and see wet pavement and people lowering their umbrellas, it is fair to deduce that it was raining, even though you did not actually see the drops falling from the sky.

Once the defendant establishes through examples that the company makes positive contributions to the community, the hope is they can change the perception of the company and create a more positive image of a business. This can contribute to a positive view of the business through person/act reasoning, that it would not harm its customers, patients, or employees.

This is all great in theory, but will it actually work in the case of sharing information about actions around COVID-19? It certainly could create a positive view of the company, but it could also have the opposite effect. Jurors might believe the sharing of this information is self-serving and attempting to exploit the tragedy that has been caused by the pandemic. We recently conducted a research project to investigate whether sharing the information would be beneficial or not.

Participants were asked to assume the role of a juror and were told they would read a description of a pending lawsuit, including a presentation from the plaintiff followed by a presentation from the defense. A brief statement of the case alerted participants that it was a civil suit against Empire Medical Device Company, which was accused of negligently manufacturing parts for a knee replacement. All participants were presented with a short script (732 words) from the plaintiff detailing the allegations against the company.

The lawsuit included 10 plaintiffs who were seeking $1 million each in compensation. Participants were then assigned to one of two conditions. In version one, participants read a defense script (682 words) that included specific details of the company’s donations of PPE to help front-line health care workers in the community as part of an effort to build trust and goodwill for the company. In the second version, the specific information about the PPE donation was excluded (61 words).

After reading the scripts, participants answered questions related to negligence, causation, and damages. In addition, participants rated the strength of the case for the plaintiff and the defense and provided an overall leaning in the case. Participants were also asked to report their level of agreement to several statements related to the case including, “Empire is a good company committed to helping people,” and “Empire is a trustworthy company.”

Study 2 followed the same procedure with one important change. The defense script was changed to increase the strength of the appeal to corporate good behavior. The new defense script was longer (729 words) and had more words devoted to the donation of PPE (108 words).

The results of both studies confirm there was no significant difference in the verdicts, attitudes, or damage awards between people who heard about a company’s efforts to help the community through donations of PPE versus those who did not hear this information. There was a small benefit in most categories, but not enough to conclude with statistical certainty that it had anything to do with the PPE messages.

Although this study focused on the issue of sharing information about corporate responses to the COVID-19 pandemic, the results likely apply in other contexts.

In many cases, we often are asked if the good deeds of a company should be an important part of the defense strategy. These results suggest that such a strategy likely will not significantly alter the outcome of the case. It appears that jurors will discount the information as irrelevant to the case at hand and ignore it when making their decision. This conclusion is consistent with our observations from many mock trials where jurors expressed that the information was not germane and that they did not factor it in to their final decision.

While the inclusion of the information did not improve the outcome for the defense, it also did not cause a boomerang effect in jurors or a backlash against the business. Jurors did not seem to find such information offensive or distasteful. The results revealed a marginal (and insignificant) improvement in verdicts, attitudes, and damages.

Consequently, if it does not take away too much time from the rest of the key arguments, a short public relations effort would not be harmful. However, the defendant should not get their hopes up that it will change the result of the trial.

It is also important to note that this project used case facts purposefully slanted in favor of the plaintiff. The results could change when the defense case is stronger.

For instance, when the facts were balanced, would the blatant appeal to goodwill distract the jury from the facts related to the key issues of the case? Would they see this as pandering (and boomerang) when there was a “better” argument to be made? Or would they find the good works more compelling when there is more evidence the company did the right thing? This would be a worthwhile scenario to examine in future research.

One final consideration is whether enough emphasis was given to the good works to make the test legitimate.

In the first study, the defendant’s script that included the good works spent 9% of its time on the PPE donations. In the second study, it was 15%. Few defense speeches of an hour (opening or closing) would spend more than nine minutes focused on a company’s good works. Any more than that would result in the omission of key defense arguments and likely increase the chance of a boomerang effect. This also would be a useful focus for future research.

A more detailed version of this blog, including statistical tables and methodology, was recently published in Law360. Read more here


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