In our last article (Every Trial Argument Needs a Theme - Here's Why & How to Create One) the discussion focused on how defense counsel must create a theme to present the case for the best possible outcome. Current trends have shown that juries tend to vilify the corporate defendant, oftentimes leading to #NuclearVerdicts. We recommend that you counter this pervading social idea by personalizing the corporate defendant.
As a defense attorney representing a corporate defendant, it can be challenging to humanize your client and make them relatable to the jury. In many cases, corporate defendants are seen as faceless entities that prioritize profit over people or a more common theme of “Profits over Safety.” Robert Tyson aptly refers to this dilemma as “Facts vs. Feelings.”1 We know that jury trials are more than just the evidence presented; they become a battle for the hearts, as well as the minds, of the jurors. Attorneys must connect with the jury, not just present facts.
But aren’t all jurors told that they must not let bias, sympathy or prejudice influence their decision-making? Every state instructs the jury with a similarly worded instruction: “The fact that a defendant is a corporation should not affect your verdict. Under the law a corporation is considered a person and all persons are equal before the law. A corporation is entitled to the same fair and conscientious consideration by you as any other person.”2
Shouldn’t counsel be confident that the jurors will follow the law, leaving their emotional biases at the courthouse steps and treating corporate clients as “any other person?” Why should you focus attention on helping the jury to see your corporate client more “person-ally?” Because jurors, like most people, are seeking connection and want to feel supported. “Feelings matter. Feelings are real. They are unavoidable. Feelings, while they should have no place in a courtroom, are there.”3
A study conducted in 1938 identified numerous psychological needs, three of which researcher David McClelland felt exerted the greatest influence over what we do. What is the number one motivator? Affiliation - defined as “Connecting with others.”4 The need for affiliation is a natural human desire to want to feel connected to others so that we feel like we are part of something bigger than ourselves. We can see this desire in the way we form families, communities, and even countries. There are many benefits of feeling united with others: we feel supported, loved, and less alone. But most importantly for trial attorneys, we also tend to be more cooperative and helpful towards those who are part of our group.5
A study on the purchasing habits of consumers shows that product attractiveness, the consumer’s need for affiliation, and a personal connection have direct and positive effects on consumer identification with the company. This research highlights the importance of the non-product aspects of a company in terms of building a consumer-company bond.6 Based on the research, it is essential to personalize the corporate defendant to achieve a favorable outcome for your client.
Here are five top strategies for personalizing the corporate defendant:
1. Emphasize the people behind the corporation:
It is essential to highlight the people behind the corporation, including the employees, executives, and shareholders. By focusing on the individuals who make up the corporation, you can show that there are real people behind the decisions and actions of the corporation.
- “You need to figure out ways for the jury to connect with your client. You can start by making sure the corporate representative who sits at the table with you comes across as authentic.”7
- “The representative should reflect the corporation’s story and should be pleasant and respectful at all times. The representative should appear engaged in the trial and should never come across as disinterested or arrogant.”8
- “The representative at the table is the face of the corporation as far as the jury is concerned – and that person will make a bigger impact with the jury than any statistics that you present about your client’s charitable donations or good deeds in the community.”9
2. Highlight the corporation's contributions to the community:
Defense attorneys can highlight the corporation's contributions to the community, including charitable donations, volunteer work, and community outreach programs. This can help show that the corporation is a responsible and engaged member of the community.
3. Show the corporation's commitment to safety and quality:
Defense attorneys can show the corporation's commitment to safety and quality by presenting evidence of safety protocols, quality control measures, and employee training programs. This can help demonstrate that the corporation takes its responsibilities seriously and is committed to providing safe and reliable products or services.
4. Emphasize the corporation's positive impact on the economy:
Defense attorneys can emphasize the corporation's positive impact on the economy, including job creation, tax revenue generation, and economic growth. This can help show that the corporation plays a vital role in the community and the wider economy.
5. Humanize the corporation's story:
Defense attorneys can do this by presenting the corporation’s story in a relatable and engaging way. This can include presenting the corporation's history, mission statement, or vision for the future in a way that connects with the jurors' own experiences and values.10 Here are some suggestions on how you can connect with the jury:
- Be the trusted leader of your jury.11
- Show you care…authentically.12
- Improve your listening skills13
- Share things about yourself during voir dire or your opening. “As research suggests, personal stories help us process and make sense of complex information and bond as a group.”14
Personalizing the corporate defendant is essential to achieving a favorable outcome in a trial. Your jurors are looking for connection, and connected jurors are more likely to be helpful to your client. Emphasize to the jury why they should follow the judge’s instruction to treat the corporation “as a person.” By emphasizing the people behind the corporation, highlighting the corporation's contributions to the community, showing the corporation's commitment to safety and quality, emphasizing the corporation's positive impact on the economy, and humanizing the corporation's story, defense attorneys can make the corporation more relatable and sympathetic to the jurors. This can help build credibility and trust with the jury and increase the likelihood of a favorable outcome for your corporate client.
Want more insights from First Court’s experience with jury verdicts? Check out our blog series on LinkedIn where we delve into Robert Tyson’s ten points one-by-one, drawing from the advice in his book while combining the thought leadership of prominent plaintiff and defense attorneys who have experienced both sides of a nuclear verdict. Keep an eye out for our upcoming Slay The Reptile, the sixth article in our series about addressing “nuclear verdicts.”
Recent Articles by Our First Court Team:
About the Author:
Kristi Harrington is a trial consultant with First Court, Inc. As a retired circuit court judge, Kristi presided over hundreds of jury trials. Kristi is a Distinguished Visiting Professor and former Director of Advocacy at Charleston School of Law.
- Tyson Jr., Robert F. Nuclear Verdicts: Defending Justice for All (Law Dog Publishing, LLC., 2020), p115.
- 3.16 corporate defendant. 3.16 Corporate Defendant | Model Jury Instructions. (n.d.). https://www.ce9.uscourts.gov/jury-instructions/node/352.
- Tyson Jr., Robert F. Nuclear Verdicts: Defending Justice for All (Law Dog Publishing, LLC., 2020), p117.
- Sussex Publishers. (n.d.). Purpose: What drives all the things we do?. Psychology Today. https://www.psychologytoday.com/us/blog/beyond-heroes-and-villains/201804/purpose-what-drives-all-the-things-we-do.
- Pignataro, C. (1665, February 18). Connection + affiliation = smoother negotiation. LinkedIn. https://www.linkedin.com/pulse/connection-affiliation-smoother-negotiation-carlo-pignataro/.
- The role of affiliation, attractiveness and personal connection in ... (n.d.). https://www.researchgate.net/publication/263146908_The_role_of_affiliation_attractiveness_and_personal_connection_in_consumer-company_identification.
- Kirk, E. J. (n.d.). Six Tips to Help You (And Your Client) Connect with a Jury. Americanbar.org. https://www.americanbar.org/groups/litigation/committees/solo-small-firm/practice/2016/6-tips-to-help-you-and-client-connect-with-jury/.
- Cherry, K. (2023, April 14). How to maintain interpersonal relationships. Verywell Mind. https://www.verywellmind.com/how-to-maintain-interpersonal-relationships-5204856.
- Morse, W. (n.d.). Courtroom Ethos: How to Win Over a Jury with Credibility and Respect. Americanbar.org. https://www.americanbar.org/groups/litigation/committees/trial-practice/articles/2015/spring2015-0515-courtroom-ethos-win-over-a-jury-with-credibility-and-respect/.
- Smerek, R. (n.d.). What does it mean to be authentic?. Psychology Today. https://www.psychologytoday.com/us/blog/learning-at-work/201901/what-does-it-mean-to-be-authentic.
- Reyes , Hon. J. G. (n.d.). From the judge’s side of the bench: The value of listening. From the Judge’s Side of the Bench: The Value of Listening. https://dsl.memberclicks.net/assets/docs/Tablets/Spring2021/From%20the%20Judge%E2%80%99s%20Side%20of%20the%20Bench-The%20Value%20of%20Listening.pdf.
- Feller, T. (n.d.). Personal stories told during jury deliberations. Personal Stories Told During Jury Deliberations. https://www.jstor.org/stable/10.13110/storselfsoci.13.1.0094.