WEST VIRGINIA RECORD

In my last column, I discussed the impact of West Virginia's legal environment on our state's business climate.

My column was prompted by Chesapeake Energy's decision not to build an Eastern Division headquarters in Charleston due to the West Virginia Supreme Court's refusal to hear an appeal of a $405M verdict against the company.

Of course there is more to the story, but I feel an obligation to address the overall impact of West Virginia juries on the state's legal, and therefore, business environment.

Yes, juries in West Virginia have provided verdicts with large damage awards. In fact, West Virginia juries have been a factor in cases with some of the largest awards in the country this past year.

However, my contention is those who believe juries in West Virginia are the primary reason for these huge damage awards is misleading himself or herself. Just as there are no "magic bullet" answers to changing West Virginia's litigation environment, there are many things to point to as elements of our state's legal climate.

Further, I would be remiss if I didn't point out my belief that "jury think" is one of the more practical issues that can be addressed to obtain a desired legal outcome. No, I don't blindly believe that jury research is powerful enough to always turn the outcome of a trial. But, it's the most readily available and one of the best tools in our arsenal when considering the big picture of our litigation climate.

In truth, it is very difficult to bring change to our state laws including limiting damage awards, changing regulatory policies or changing the partisan election of judges. Utilizing jury research, however, is an option that is readily available.

In previous columns, I have made observations about the psychographic profile of West Virginia's jury-eligible population. The people of West Virginia definitely have a profile that can readily be interpreted as "pro-plaintiff." A lower socio-economic lifestyle is certainly one of the key indicators utilized to predict juror behavior.

This fact alone is the primary reason that litigators should consider jury research for major trials in the state. Not necessarily to provide an opportunity to gain an "edge," rather an attempt to at least "level the playing field".

In our current business and litigation climate, many cases may have outcomes that literally threaten a company's existence. And certainly, the outcome of litigation in West Virginia may impact the company's future investment in our state. This seems to be the case with Chesapeake Energy. We've observed similar issues in the past. It is vitally important to consider our "lessons learned" and address them in a dramatic fashion. In addition to other improvements to our litigation and legal environment, expeditious use of jury research is one element that should be utilized.

Samples is president of RMS Strategies, a communications and opinion research agency headquartered in Charleston. RMS Strategies has extensive crises communications, counseling and litigation research experience and has worked for clients throughout the nation during the last 25 years. They can be contacted at 304.343.7655 or www.rmsstrategies.com.