ALL THINGS JURY: Trial consulting for workplace lawsuits

One of the fastest growing concerns for businesses is the potential liability of employee harassment and discrimination lawsuits. In these politically correct times, workplace lawsuits have grown greatly in terms of both quantity and potential monetary damages. Enlightened businesses provide personnel training and policies in their employee manuals that cover these issues. However, the human resources function for many businesses, especially small businesses, is often an afterthought. This provides for a situation that is fraught with potential legal liability. After all, controlling any aspect of human behavior is much closer to an oxymoron than a successful business practice. As these types of cases proliferate and the monetary awards continue to increase, it has become cost effective for businesses, and their insurance carriers, to invest in trial research for these lawsuits. One of the most effective efforts is for the litigation consultant to utilize video recorded depositions to develop a short summary video that pulls key clips together to provide a convincing argument for the client. The video can be utilized with opposing counsel and their client, in addition to mediators for settlement discussions. Another valuable research tool is to gauge reaction to the plaintiff and key witnesses from focus group participants or mock jurors. As with almost all jury research techniques, a critical element of the research is that participants cannot know which side is sponsoring the exercise. Asking employees and friends to review cases most often leads to false positives. People are highly inclined to tell you what you want to hear. Another valuable tool for employee harassment or discrimination cases is jury selection research. The art and science of jury selection is, of course, valuable for any case that goes to trial. However, the personal nature of employee cases provides a situation that is perfectly suited to using mock juror feedback and even survey research for jury selection purposes. These cases are often viewed more emotively than cognitively by jurors. Determining emotive responses to the plaintiff and key witnesses go a long way in developing an effective trial strategy in workplace lawsuits. Because of the importance of emotive response in these cases, witness preparation is also an important consideration. Again, when emotive response is possibly more important than cognitive consideration of the facts, reaction to witnesses takes on a heightened consideration. There is little argument that workplace lawsuits have increased and will continue to increase. In addition, our current economic environment could possibly exacerbate both the number of workplace lawsuits and the monetary awards associated with these suits. Therefore, the role of the litigation consultant will take on even more importance for companies facing these type of lawsuits. Samples is president of RRS Research, a communications and opinion research agency headquartered in Charleston. He has extensive crises communications, counseling and litigation research experience and has worked for clients throughout the nation during the last 25 years. He can be contacted at rsamples@rrsresearch.com.

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