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Law360 (March 31, 2020, 5:05 PM EDT) --
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| Sherry Salmons |
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| Alison Wong |
Individually, and as a society, we are grappling with questions that have enormous consequences. In a time of scarce resources, how do we determine who is most in need? Who deserves our medical help? Our financial help? Which industry is worth saving? Which people? And just how much should each of us be expected to sacrifice for the good of our fellow citizens?
For those of us working in litigation, one important question is: How will jury trials be impacted when we reemerge from this crisis? Will this shared experience have a lasting impact on jurors' worldview?
Even under the best of circumstances, it is difficult to motivate the average juror to fight for a multibillion-dollar company. Through the use of mock trials, we have found ways to inspire jurors to advocate for large corporations in deliberations, largely by focusing our message on how the defendant corporation acted rationally, responsibly and, if possible, fairly. We believe the themes of fairness and responsibility will continue to dominate jurors' thinking, but jurors' analysis will take place within a vastly different context.
Huge swaths of our jury pool will have firsthand experience with this crisis, and many will suffer medical, psychological and financial hardship. As they struggle to get their own needs met, they will also be hearing media reports about how individual companies are reacting to the crisis and how large corporations are seeking bailouts from taxpayers.
There is a strong emphasis on people needing to behave responsibly (stay home, don't stockpile supplies, live within your means, save for a rainy day). Jurors will very likely expect corporations with significantly more resources to have done the same.
Right now, we live in a world filled with anxiety and stress. Soon, as citizens really begin to feel the effects of this shutdown, those feelings will turn to anger and resentment.
We know one of the biggest drivers in trial damages is anger toward the defendant. As a starting point, it's already built into the equation (them versus us) and how much bigger that divide will become when we all finally return to normal is an open question.
When the subprime mortgage crisis hit our country, only a handful of industries were in serious trouble. Our elected officials decided that most banks and automakers were worth saving and provided billions in relief. In recent mock trials, we have seen that jurors have not since forgotten those industries' debt to society. The reputational damage to companies that received assistance manifests in jurors' heightened expectations regarding their conduct and unwillingness to offer the benefit of the doubt.
Now, with a worldwide shutdown of our economy, every industry, every person is being impacted. President Donald Trump recently signed a $2 trillion federal stimulus package that offers monetary relief to each citizen (there will be some exceptions) and potentially billions in relief to large corporations.
Who will receive help, and who will be left to fight on their own? Who will survive in this new world, and who will have to shutter their doors? How will jurors feel about it all in the end? Answers to those questions will surely impact jurors' perceptions of fairness and right and wrong, and those who represent corporations will have to consider whether and how to adjust their messaging accordingly.
The strategic and tactical decisions that organizations make today will almost certainly impact how jurors view those organizations as defendants for years to come. As such, prudent companies will keep in mind their ethos during this crisis — who do they want to be, and how do they want to behave as the nation becomes one community? The pandemic is a shared experience between businesses and citizens; we are all going through this at the same time, but it is important for corporations to make clear we are also going through it together.
Months from now, when making decisions about how to treat corporations, jurors will remember how they are being treated today. While this certainly presents a strategic challenge for many corporations, given the right messaging, it also presents something of an opportunity.
- Lead by example; use your powerful voices to model behavior that will protect us all.
- Demonstrate with your actions that the company is learning from this experience and recognizing the power of community.
- If you or your client happens to be one of the industries that receive financial relief from the government, let your customers and constituents know that you recognize we all survived this together and we will all feel the benefits together.
Though some large corporations are opting to hunker down and ride out the pandemic by laying off or furloughing thousands of workers, we have also already seen examples of major corporations looking for ways to get off the sidelines and give back not only to their employees, by expanding sick leave and health benefits, but also to the public, by offering free goods and services to customers, schools and health care workers.
Many high-profile corporations are making donations, using their intellectual horsepower to devise solutions to our most pressing problems, and even instituting pay cuts to CEOs and other top executives in a move that, while largely symbolic, sends the message that everyone in the organization is doing their part.
Companies that understand the new world jurors must navigate, that have educated themselves on what remains important and what has fallen by the wayside, and whose actions and communications reflect their understanding, will have a better chance of surviving this crisis with their hard-earned goodwill intact.
Sherry Salmons, Ph.D., and Alison Wong are members at Salmons Consulting.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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