WEST VIRGINIA RECORD

Many of us are familiar with Leonard Nimoy's quote from the second Star Trek movie as he sacrifices his life to save others, "The needs of the many outweigh the needs of the few." A very noble sentiment, of course, and even "logical."

However, juries just can't reach that high moral ground very often when faced with an injured plaintiff, or plaintiffs. Juror reaction to injured plaintiffs is more often tied to an attitude that even ONE injured party is too many.

The unfortunate fact is that advances in science, and improvements in quality of life, often come at a price. Even asbestos, certain medicines and pharmaceuticals, and many other products and practices were all a good idea at one time. Manufacturing and mining practices were driven by cost and efficiency factors, along with a desire to provide the best product.

I've heard mock jurors deliberate this moral dilemma many times and the corporation almost always loses. The exceptions are usually related to non-sympathetic plaintiffs, or plaintiffs who may not be deemed truly injured.

Why do juries fail to give even a small amount of consideration to the fact that corporations don't intend to harm anyone? The answer is complex, but some key considerations include:

"It's all personal." Jurors can see, feel and touch an injured plaintiff, but not a business entity.

"They only care about profits." Juries do a great job of reinforcing this concept because ALL of them have strong first-hand experiences of being "let down," or worse, by a company's product or service.

"Obligation to inform." Jurors hold corporations to a VERY high level of responsibility in terms of disclosure and liability.

"Government regulations not enough." Jurors have a basic lack of trust in government and believe regulatory controls represent a MINIMUM level of responsibility for corporations.

So, what's a defense attorney to do? Of course there are no magic bullets and each case is different, but developing a case strategy around a few basic concepts is essential.

First, a corporation must be contrite. Not profusely apologetic, but communicating the message of concern without a wholesale admission of blame.

Next, the company must prove its adherence to contemporary governmental regulations and an even higher level of self-policing. Yes, these policies were usually in place even if not followed 100 percent. Reasonable people can understand that there are a myriad of reasons policies aren't followed 100 percent. And, that many of these reasons are not within the corporation's sphere of control or influence.

Thirdly, the jurists must understand the "reasonable and standard practices of the day." This must be presented carefully so as not to be interrupted as an excuse rather than a logical explanation. The objective is to diffuse unreasonable "retroactive liability." Juries must understand that learning, and the accompanying improvements in products and practices CANNOT be retroactively applied.

Lastly, the underlining "science" is often lacking in these cases. Junk science and alternative causation present significant opportunities to undermine plaintiff claims.

A good jury research partner can assist litigators in meaningful ways. However, there is no more meaningful method than testing how to communicate these concepts effectively.