Julie Campanini, The Daily Record Newswire
No matter how long they are, trials can seem too short to accomplish every goal. Those who want to defend their character and their company and tell their story so jurors understand the whole picture, never seem to have enough time. It could take seconds to mar a reputation and forever to fix it.
A recent study at the University of Chicago found that people are much more unforgiving when it comes to allowing someone to redeem himself over bad behavior, even when the numbers of good deeds and bad deeds are equal. This is true both when people or companies cease the bad behavior as well as actively engage in good behavior.
The study concluded that there is an “asymmetrical moral tipping point.” That is, it is much easier to become a sinner than a saint.
Aside from the larger social implications of character redemption, this is often an issue at trial. Trials are adversarial in nature. They pit parties against each another and put conflict center stage by asking jurors to decide a winner and loser, a sinner and a saint.
After all, we are taught early on that every good story has lightness and darkness, a villain and a hero. When the first impression is negative, it takes much longer to effect what jurors consider a positive moral change. Your client won’t cease being the villain with one heroic act.
What is a company to do when faced with a poor pre-existing reputation, a witness who plays poorly early in trial, or when a few pieces of bad evidence create obstacles to character redemption?
Though these specific issues can be more complicated than this article can address, generally, keeping the following things in mind can help mitigate the negative effects.
Lay out the positive attributes.
This could be community partnerships, the small startup-in-the-garage story, goodwill with employees, philanthropic partnerships and events — anything that paints the “villain” in a better light. This information may seem trivial in the throes of nasty litigation, but jurors are more forgiving when they see a mistake rather than a pattern of behavior.
Put negative facts into context.
Is there a bad memo? Did someone die using the client’s product? Is there something that goes against a current trend in the news, like polluting a river or not disclosing adverse health effects? When these issues are put under a microscope, they can look scary and distorted. Without talking down to jurors, put these facts into a larger and more positive context. The same facts presented in different ways with varying focal points can have very different results.
Admit or concede small points but don’t dwell on them.
Jurors dislike companies and people who refuse to acknowledge obvious issues in front of them. If it is a small point or an issue that can soften the mood, apologize or concede. Acknowledging a family’s pain and sympathizing with their grief makes one compassionate, not liable. Acknowledging that corporate sensitivity training fell short in some areas shows honesty and a desire to improve. Think about areas at trial where your team can show signs of a willingness to change. These behaviors help alter negative perceptions.
Have personable, warm and engaging people at trial.
Who doesn’t like nice people? This includes trial counsel, company representatives and experts. The more positive the whole story is to jurors, the easier it will be for jurors to like your client and think the claims against the client or the client’s company are wrong. We know from years of post-trial interviews that cold, calculating and belligerent witnesses turn off jurors. They dislike condescending lawyers and want to understand the case from a group of people who want to help them. Trial consultants constantly emphasize the need to work with witnesses and counsel and this is partly why.
The team must act cohesively and put on a consistently positive face. When the jury likes everyone except the company representative, it is a problem. If the company representative is angry, cold or arrogant, find a new one.
Consider the larger implications of your client’s character, reputation and pattern of behavior so these issues can be addressed in the context of your story. No matter what the circumstances are, there is a story to be told. Incorporating these elements into your holistic view of your trial can only help.
You don’t have to be a hero to win a trial, but it is difficult to win one as a villain.
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Julie Campanini is the founder and principal at Trial Insights. She can be contacted at Julie@trialinsights.com.
