J B C :

Presented at the
FDCC 2005 Annual Meeting on
July 21, 2005
Written and Presented By: George S. McCall
Kern & Wooley, LLP
5215 N. O’Connor Road
Suite 1700
Irving, TX 75039
972/869-2433 fax
[email protected]
About the Author
George S. McCall is a partner with Kern & Wooley, LLP, practicing in its Dallas, Texas
office. Mr. McCall graduated from Baylor University School of Law with a J.D. in 1977.
Mr. McCall's legal experience has primarily focused on litigation and insurance coverage.
Most of his cases have involved commercial litigation, product liability, general liability,
contractual and extra-contractual matters, including insurance contracts and coverages
involving excess and reinsurance claims, "bad faith," and deceptive trade practices
claims. He is board certified in Personal Injury Trial Law by the Texas Board of Legal
Specialization and in Civil Trial Law by the National Board of Trial Advocacy.
In the practice of law, many of us are faced with, and welcome the opportunity to
handle, the defense of a corporate client. This representation can span a wide range of
practices and involve numerous issues one must evaluate and consider in successfully
defending and mitigating damages against a corporate entity. Throughout this paper,
discussion is limited to dealing with and defending a corporate client in various scenarios
involving a sympathetic plaintiff or plaintiffs before a jury in products liability,
negligence, toxic tort, environmental, as well as breach of contract and commercial
There is a widespread perception, which many experienced attorneys would agree
with, that juries are biased against corporate defendants. This perception is often
premised on the “deep pockets” hypothesis,2 i.e., a jury is going to be more likely to
award more monies against defendants with extensive financial resources. 3 This
perception is also drawn from the extensive media coverage involving corporate clients.
There are numerous articles at the time of the drafting of this paper that draw unfavorable
attention to the operations of corporate clients, which include: Party Isn’t Over for
Arthur Andersen Alumni: Bonded by Culture and Tragedy, Ex-Staffers Gather to
Reminisce; ‘Like the Survivors of the Titanic’;4 Time Warner Dollar Daze;5 Prozac
Nation: Is the Party Over?;6 and Halliburton’s New Headache.7 Also, consider the
impact on the perception of society and potential jurors through novels and film such as
the popular John Grisham novel, the Rainmaker, made into a movie that involved an ill,
The author has attempted to accurately set forth existing law. Any opinions within this paper,
however, are solely those of the author and are not warranted to be free from bias.
Contra Robert J. MacCoun, Differential Treatment of Corporate Defendants By Juries: An
Examination of the “Deep-Pockets” Hypothesis, 30 LAW & SOC’Y REV. 121 (1996) (noting experiments
which supported little evidence for defendant wealth effect on juror judgments).
Interestingly, “deep pocket” is defined in Black’s Law Dictionary as “1. Substantial wealth and
resources <the plaintiff nonsuited the individuals and targeted the corporation with deep pockets>. 2. A
person or entity with substantial wealth and resources against which a claim may be made or a judgment
may be taken <that national insurance company is a favorite deep pocket among plaintiff’s lawyers>.”
BLACK’S LAW DICTIONARY 425 (7th ed. 1999).
Diya Gullapalli, Money & Investing, WALL ST. J., May 26, 2005, at C1.
Monica Gagnier, News In Biz This Week, BUS. WK., Nov. 15, 2004, at 58 (noting that Time
Warner is setting aside $400 million related to federal investigations into its accounting).
Richard C. Morais, FORBES, Sep. 6, 2004, at 119 (noting three stages in the life of a new mental
health drug: euphoria, then medical doubts, then the lawsuits).
Peter Elkind, On the Docket, FORBES, May 2, 2005, at 24 (noting the company will soon be faced
with migraine class-action lawyer Bill Lerach, “a CEO’s worst nightmare;” Halliburton is involved in
objections to a proposed settlement of shareholder class-action lawsuits).
sympathetic plaintiff against a large insurance company; the novel and subsequent movie,
A Civil Action, involving the illnesses of children and adults through environmental
contamination, among others.
Jury perception of a corporate client has been frequently discussed and debated.
How a corporate client will be perceived by a jury is an issue that should be central to
your defense from the outset of litigation. While there is not a single, specific approach
that should be taken, as each case involves different plaintiffs, claims, injuries and
companies and should be reviewed on a case-by-case basis, there are some general areas
set forth below which can be utilized when preparing a case for trial and defending a case
involving a corporate client before a jury.
Defending Corporate Clients in the Wake of Enron
Media outlets draw attention to the malfeasance of corporations. News outlets
and other publications frequently discuss the premise that the federal government is
working to transform corporations into “good citizens” through means such as the 2003
Sarbanes-Oxley Act,8 the money laundering provisions of the USA Patriot Act, and the
U.S. Department of Justice’s revised guidelines for the prosecution of corporations.9
Given the media’s broadcast of malfeasance involving corporations and their chief
officers, it is possible that a jury pool may be tainted with bias against your client before
learning any of the alleged facts of a case. One of the most notable hostile jury pools
involved the trial against Arthur Andersen in a Houston federal court. The accounting
firm was on trial for charges of shredding documents involving Enron. U.S. District
Judge Melinda Harmon informed 40 percent of the 160 prospective jurors they were not
required to show up because their responses to mailed questionnaires indicated a bias
against Arthur Andersen. Some of the jurors had lost money on Enron stock. Others
worked for or had relatives who worked for Enron, Arthur Andersen, or both companies.
Although 106 panelists gathered at the courthouse, almost half were disqualified for
prejudice. Defense counsel for Arthur Andersen, Rusty Hardin, stated “The antipathy
toward anybody who had anything to do with Enron, whether it was Arthur Andersen or
Jurors are debating whether Richard M. Scrushy is guilty of violating the Sarbanes-Oxley law in
the corporate fraud trial pending in Alabama before U.S. District Judge Karen O. Bowdre. The founder of
HealthSouth Corp., in addition to charges of conspiracy, securities fraud and other wrongdoings in the plan
that inflated earnings at HealthSouth by $2.7 billion from 1996 to 2002, Mr. Scrushy could be the first chief
executive found guilty of violating the Sarbanes-Oxley law.
Although not germane to the specific areas of liability highlighted throughout this paper, perhaps
the most publicized alleged corporate violations in recent months has involved New York Attorney General
Eliot Spitzer’s investigation into, and prosecution of Marsh & McClennan and American International
Group (“AIG”).
See Spitzer sues AIG, ex-CEO for fraud, CNN Money, at
http://www.money.cnn.com/2005/05/26/news/fortune500/aig_pwc/index.htm, (May 26, 2005); Andy
Serwer, Oh, the games insurance companies love to play, FORTUNE, May 30, 2005, at 53 (posing the
question: there are no bad insurance policies, only bad insurance executives?).
anyone else, was just palpable.” He further commented, “In the 27 years I’ve been trying
cases, I’ve never seen those types of numbers.”10
For many decades, large corporate entities have lobbied for tort reform on grounds
that jurors are overly sympathetic to plaintiffs and hostile to corporations. There is
empirical research to refute the myth of anti-business bias.11 Despite this research, public
opinion polls have shown a widespread distrust of, as well as hostility towards, businesses
and corporations.12 Does this influence a jury’s decision making in an actual case?
Between 1998 and 2001, corporate scandals and personal injury lawsuits
involving alleged corporate misdeeds were in the media on a regular basis. This included
the $246 billion tobacco industry settlement, Ford roll-over accidents and lawsuits
resulting in the recall of defective Firestone tires, diet drugs, and Enron. In studies
conducted during this period, there was a finding of distrust of corporate management.
There was also a finding of cynicism toward product warnings. Some participants in the
surveys “believed that product warnings are intended to protect manufacturers from
lawsuits rather than to protect the consumers from harm.”13
Taking excerpts from Levine on Trial Advocacy: Jury Selection, consider the
[6:15:10] MCCA – DecisionQuest poll/focus group study: The
Minority Corporate Counsel Association (MCCA) and DecisionQuest
conducted a national survey and focus group study in 2002 to discover
juror attitudes toward business. The researchers found that hostility toward
business as a whole, not just companies in the news, is at an all-time high
as a result of the corporate scandals. “The good companies, not the bad
ones, are considered the exception.” [Loomis, Scandals Rock Juror
Attitudes, Nat’l L.J., Oct. 21, 2002, at A30]
This anger was expressed across geographic locations. In fact, areas in the
South and Northeast, typically corporate-friendly locations, are currently
the most hostile to corporations. [Loomis, Scandals Rock Juror Attitudes,
supra] In addition, more than 75% of white males, a demographic group
that is also ordinarily favorable to business, stated they do not trust
corporations and cited news accounts of corporate misdeeds as the reason.
John Gibeaut, Softening up Client ‘Appeal’: Some Corporations Need to Put on a Human Face
When Coming before a Jury, 89 A.B.A. J. 28 (July 2003). The conviction of Arthur Andersen was
overturned by the United States Supreme Court, Case No. 04-368.
Harvey R. Levine, Recognizing the Effect and Consequences of Attacks Against the Civil Justice
System and Lawyers: Impact on Jurors: Empirical Evidence of Public’s Perception of the Legal System
and Lawyers, LEVINE ON TRIAL ADVOCACY: JURY SELECTION Ch. 6-B § 6:15 (2004).
[Plevan, Strategies for a Successful Jury Trial in a Discrimination Case,
696 PLI/Litig. 943, 998 (2003)]
Many participants did not believe that the government is capable of
regulating corporations, as expressed in this comment: “If a company is
big enough, it can circumvent the government agencies with the right
lawyers and money.” [Loomis, Scandals Rock Juror Attitudes, supra]14
Drawing from the foregoing, and the much publicized debacle of Enron, it is
important to be aware of the potential biases a corporate client may face before a jury. As
demonstrated in the Arthur Andersen case, this bias can be sensed at the outset of jury
selection. Further below are recommendations in selecting a jury and presenting your
corporate client in a manner to allow for personalization or humanization of a defendant
Deep Pockets Hypothesis and the Media
A. Deep Pockets Defined
Differential treatment of corporations is often based upon the “deep pockets”
approach. This approach may lead jurors to take the finances of a corporation into account
when determining damages and, in some cases, liability.15 Reasoning for such differential
treatment can include the corporation’s status, role, organizational resources, size, and
potential impact.16 Corporations have greater assets than individuals, although often
unbeknown to jurors, it may be insurance money at trial.
B. Empathy for Injured Individuals
It is not surprising that juries often sympathize with the injured plaintiff(s) when
the plaintiffs are bringing suit against a large corporation. In the case of Jane Doe v.
Billion Dollar Company, Jane Doe is generally first associated with as an individual
person who has suffered injuries alleged to have been caused by the body-less
corporation. Over the years, numerous commentators have emphasized humanizing a
corporation by focusing on the people who work there and those who are helped by the
products or corporation.
Valerie P. Hans, The Illusions and Realities of Jurors’ Treatment of Corporate Defendants,
Symposium: The American Civil Jury: Illusion and Reality Fourth Annual Clifford Symposium on Tort
Law and Social Policy, 48 DEPAUL L. REV. 327, 337 (Winter 1998).
See Caren A. Crisanti, Product Liability and Prescription Diet Drug Cocktail, Fen-Phen: A Hard
Combination to Swallow, 15 J. CONTEMP. HEALTH L. & POL’Y 207, 214 (Fall 1998).
C. Media Coverage
The information broadcast by the media is not always unbiased and objective
reporting, but can often more accurately be described as biased and subjective.
“Exposure to lawsuits in general via the media has given rise to unprecedented public
awareness of litigation, which shapes the attitudes jurors carry into the courtroom today.
Unfortunately, that awareness is not always accurate, having too often been predicated on
high-profile cases that bear little or no resemblance to ordinary litigation.”17
Corporations have invested in lobbying and advertisement to persuade the press
and the American people that frivolous lawsuits are tying up the court dockets and
causing excessive awards to raise insurance premiums and jeopardize important
community services.18 Consider the case enduringly present in society, Liebeck v.
McDonald’s Restaurants, No. CV-93-02419, 1995 WL 360309 (N.M. Dist. Ct. Aug. 18,
1994). There was public outrage and ridicule generated at the award of $160,000 in
compensatory damages and $2.7 million in punitive damages just because a woman spilt
coffee on herself.19 While the majority of attorneys have subsequently learned of the
reduction in the award and the complete allegations against McDonald’s, the media’s
outlet of information consisted of headlines such as the following: Woman Burned By
Hot McDonald’s Coffee Gets $2.9 Million. This article summarized the suit as follows:
A woman who was scalded when her McDonald’s coffee spilled was
awarded nearly $2.9 million – or about two days’ coffee sales for the fastfood chain – by a jury.20 Lawyers for Stella Liebeck, who suffered thirddegree burns in the 1992 incident, contended that McDonald’s coffee was
too hot. A state district court jury imposed $2.7 million in punitive
damages equal to two days’ worth of McDonald’s coffee sales, which he
estimated at $1.34 million a day. Testimony indicated McDonald’s coffee
is served at 180-190 degrees, based on advice from a coffee consultant who
has said it tastes best that hot, Wagner said Thursday. The lawsuit
contended Liebreck’s (sic) coffee was 165-170 degrees when it spilled. In
contrast, he said, coffee brewed at home is generally 135-140 degrees. He
said McDonald’s expressed no willingness during the trial to turn down the
James L. Gilbert et al., The Long and Winding Road: Overcoming Juror Bias During Voir Dire, 1
Ann. 2002 ATLA-CLE 185 (2002).
The case served as the basis of many late night talk show hosts comedic routines, making a top-ten
list of David Letterman. Mark B. Greenlee, Kramer v. Java World: Images, Issues, and Idols in the Debate
over Tort Reform, 26 CAP. U. L. REV. 701, 702 n.8 (1997) (referring to a CBS television broadcast of The
Late Show with David Letterman broadcast on January 8, 1996). Drawing from this, many of you may also
recall the Seinfeld episode where Kramer spills coffee on himself and files suit later remarking to Jerry he is
litigious. See Seinfeld, The Maestro (NBS television broadcast, Oct. 5, 1995).
Notice the article references McDonald’s coffee sales, which will be imprinted in the minds of the
public, rather than the undisclosed profit McDonald’s reaped from such sales.
heat or print a warning. Defense attorney Tracy McGee already has said
the company will appeal. McGee also said the jury was ‘concerned about
an industrywide practice’ of selling hot coffee. Juror Richard Anglada
confirmed the jury was trying to deliver a message to the industry. ‘The
coffee’s too hot out there (in the industry). This happened to be
McDonald’s,’ Anglada said Wednesday. Liebeck’s lead counsel, Reed
Morgan of Houston, said there have been several lawsuits nationally over
the temperature of McDonald’s coffee but that he believes the Liebeck case
was the first to reach the verdict state. A California case was settled out of
court for $235,000, he said.
Morgan said Wednesday the woman’s medical bills totaled nearly $10,000.
According to testimony, Liebeck was a passenger in a car driven by her
grandson outside of a McDonald’s in southeast Albuquerque when she was
burned by a cup of coffee purchased at a drive-through window. The jury
found, among other things, that the coffee was defective and that
McDonald’s engaged in conduct justifying the punitive damages.
A number of commentators in the media furthered the proposterity behind such an
award. The San Diego Union-Tribune published an editorial that stated:
When Stella Liebeck fumbled her coffee cup as she rode in the car with her
grandson, she might as well have bought a winning lottery ticket. The
spilled coffee netted her $2.9 million in the form of a jury award. Lieback
had sued McDonald’s for serving take-out coffee that her lawyer claimed
was too hot. This absurd judgment is a stunning illustration of what is
wrong with America’s civil justice system. Ironically, it may also become a
powerful spur to the cause of tort reform. Our guess is that other greedy
copycats in restaurants throughout America soon will be happily dumping
coffee into their laps in a bid to make a similar killing in the courtroom.21
The Liebeck suit led to the “Stella Awards” named after plaintiff Stella Liebeck.
The “Stella Awards” are now made annually and e-mails and web-postings are generated.
A search on Google revealed several web-sites devoted to the “Stella Awards.” In fact,
www.StellaAwards.com contained the caption:
pleading before the
Court Of Public Opinion
begs the court to take notice of
Editorial, Java Hijack, SAN DIEGO UNION TRIB., Aug. 20, 1994, at B6.
_____________________________ )
The 2004 Award Winners
Identified as the “True Stella Awards,” the following suits were noted for 2004:
The TRUE Stella Awards – 2004 Winners
by Randy Cassingham
Issued 31 January 2005
Unlike the FAKE cases that have been circulated online for the last
several years (see http://www.StellaAwards.com/bogus.html for
details), the following cases have been researched from public sources
and are confirmed TRUE by the ONLY legitimate source for the Stella
Awards: www.StellaAwards.com. To confirm this copy is legitimate,
see htpp://www.StellaAwards.com/2004.html
#6.The Tribune Co. of Chicago, Ill. The newspaper chain owns several
newspapers, as well as the Chicago Cubs baseball team. One of its
newspaper carriers was Mark Guthrie, 43, of Connecticut. One of its ball
players was Mark Guthrie, 38, of Illinois. The company’s payroll
department mixed the two up, putting the ballplayer’s paycheck into the
paper carrier’s bank account. The carrier allowed them to take back 90
percent of the improperly paid salary, and said they could have the rest
after they gave him a full accounting to ensure he not only got his own pay,
but wouldn’t have any tax problems for being paid $300,000(!) extra. The
Tribune Co., rather than provide that reasonable assurance, instead sued
him for the rest of the money.
#5. “High Tech” retailer Sharper Image sells a lot of its “Ionic Breeze” air
filters. As part of a comparative review of many air filters, Consumer
Reports magazine found the “Ionic” unit was the worst performer. SI
complained, saying it didn’t do a “fair” test. CU asked what sort of test
should be done, but SI never replied – until it sued CU. A federal judge
ruled the suit not only had no merit, but was actually an illegal attempt to
squelch public discussion. SI was ordered to pay CU $400,000 to cover its
legal defense costs.
#4. Edith Morgan, mother of Kansas City Chiefs football star Derrick
Thomas, who died after being thrown from his SUV in a crash while
speeding in a snowstorm. Morgan said Thomas’s neck was broken because
the SUV’s roof collapsed a few inches – not from rolling down the
highway because he wasn’t wearing a seatbelt – and sued General Motors.
Her lawyer begged jurors to award more than $100 million in damages,
perhaps more – he “did not want to put an upper limit on it.” GM pointed
out that Thomas’s oversize SUV was exempt from federal roof crush
standards, yet it met them anyway. The jury sent a message: of that $100
million, it awarded Morgan . . . nothing.
#3. Tanisha Torres of Wyndanch, N.Y. The woman sued Radio Shack for
misspelling her town as “Crimedanch” on her cell phone bill. She didn’t
even ask them to change it; she just sued. “I’m not a criminal,” she
whined. “My son plays on the high school football team.” Yeah, that
makes sense. The name “crimedanch” is a common joke; police in the area
confirm it’s a high-crime area. Still, Torres claimed she suffered “outrage”
and “embarrassment” at having to see that spelling on her private phone
bill. The suit seeks unspecified damages.
#2: Homecomings Financial, a subsidiary of GMAC Financial Services,
which is a division of General Motors. The finance company accepted a
change of address notice from identity thieves for the account belonging to
Robert and Suzanne Korinke. The thieves ran up a $142,000 debt, and the
Korinkes notified Homecomings of the fraud the moment they discovered
it. Homecomings sued them two years later, saying the couple’s
“negligence” is what “caused the injury to Homecomings,” not the fact that
the company accepted a change of address from fraudsters – and then gave
them all the money they could drain. The victims got the company to drop
the suit, which demanded $74,000 plus attorney’s fees, after shelling out
$5,000 in legal fees – an outcome the couple’s lawyer called “really lucky”.
AND THE WINNER of the 2004 Stella Award: Mary Ubaudi of Madison
County, Ill. Ubaudi was a passenger in a car that got into a wreck. She put
most of the blame on the deepest pocket available: Mazda Motors, who
made the car she was riding in. Ubaudi demands “in excess of $150,000”
from the automaker, claiming it “failed to provide instructions regarding
the safe and proper use of a seatbelt.” One hopes Mazda’s attorneys make
her swear in a court that she has never before worn a seatbelt, has never
flown on an airliner, and that she’s too stupid to figure out how to fasten a
There are urban legend “Stella Awards” which have never happened. Consider
the case of a man who set his Winnebago on cruise control to get a cup of coffee, and
Randy Cassingham, The TRUE Stella Awards – 2004 Winners, at http://www.StellaAwards.com
(May 30, 2005). Speaking of false or frivolous lawsuits, consider the case of Anna Ayala, the Las Vegas
woman who was arrested for attempted grand larceny after she claimed she found a finger in a bowl of
Wendy’s chili; with conspiracy to commit fraud; in San Jose, California. Ayala faces nearly 10 years in
prison and possible liability for the $2.5 million that Wendy’s claims it suffered in lost business. See
Melissa August et al., Notebook Milestones, TIMES 25 (May 30, 2005).
crashed because there was no warning that a driver should stay in control of the vehicle.
He supposedly was set to receive $1.75 million. Another case involved an Austin, Texas
woman who tripped over her toddler in a furniture store and received $780,000, as well
as a case of a man in Los Angeles, California who was awarded damages for injuries
which arose when he was attempting to steal hubcaps from a car that ran over his hand.
The problem with these cases – they do not exist.23
Many defense attorneys still routinely bring up the Liebeck case during voir dire.
It may be useful to bring up this decision or “absurd” verdicts to persuade the jury to
open discussions and gather a feel of their perceptions with respect to litigious plaintiffs
or, on the other hand, a distrust of corporate entities.
While the foregoing suits or “urban legends” may give some level of distrust to a
plaintiff, the reality is that once in a courtroom before a jury, it is most likely that the
plaintiff will garner more sympathy than a defendant corporate client. Also, while the
media greatly publicizes “frivolous” types of lawsuits, it also heavily publicizes alleged
wrongdoings of corporations and their executive officers. The question then becomes
how do we squelch a negative perception and how do we humanize the corporate entity.
What follows below is a discussion of trial tactics in the defense of a corporate client.
IV. Trial Tactics
The careful selection of a corporate representative should be made early in the
stages of litigation. Along with counsel, the corporate client should select a
representative knowledgeable about the facts and the company, someone who is
personable, and someone with whom the jurors can identify.
Selecting the Corporate Client Representative
Who is someone acceptable to the jurors? It is unlikely that the head of your
corporate client will attend the trial, i.e., the CEO or President. However, this may not be
the person most beneficial to be present as it may be more difficult for a jury to relate to
this person.24 Instead, a representative directly familiar with the product or facility at
issue should be chosen, someone whom the jury can assign a “face” to the corporate
It is also important that defense counsel become well acquainted with the
corporate representative during the defense of the client. Be familiar with your corporate
representative’s educational and employment background, job duties, and tenure with the
Guy Harrison, The Duty (and Honor) of Debating the Facts, TEX. BAR J., at
http://www.texas.bar.com (May 30, 2005).
Cf. Nick v. Morgan’s Foods, Inc., 270 F.3d 590, 596 (8th Cir. (Mo.) 2001) (noting district court
acted within its discretion under sanctioning provision of Federal Rule of Civil Procedure Rule 16 when
corporate client sent a corporate representative with limited authority to court ordered alternative dispute
resolution conference).
company. In furtherance of this, familiarize yourself with the operations of your client
and corporate structure. As discussed below, it is possible that a juror may hold biases
against your client unrelated to your case, i.e., other negative publicity or a history of
poor workmanship or service.
It is important that defense counsel hold very specific discussions with the
corporate representative about appropriate dress and behavior before a jury. Any time the
jury is in the courtroom, there should be no inappropriate gesturing, head nodding,
sighing or rolling of the eyes. Also, while the corporate representative is on the stand it is
important to emphasize that the representative show no signs of hostility towards the
plaintiff or the plaintiff’s counsel.
Video Deposition of Corporate Client
State and federal rules permit the deposing by the adverse party of the corporate or
most knowledgeable representative with the most knowledge with a list of topics of
relevance to the case, i.e., the “person most knowledgeable.” Company witnesses are
critical to the defense of products and toxic tort cases, as well as a number of other types
of cases. Preparation of these witnesses should be made carefully. A well-prepared
witness will be able to identify questions designed to elicit damaging answers, will know
when to decline to answer compound, confusing or “trap” questions, and will be prepared
to ask counsel to rephrase or repeat a question.25
The foregoing is important as the video of the deposition may be used at trial to
impeach your client. On the stand, if your client proffers testimony that is in conflict with
prior testimony while being deposed, not only can it be read before the jury, but with
today’s technology, the testimony of your client can be played before the jury. Such
visual footage can be damaging to your client representative’s credibility and, ultimately,
the defense.
Mock Trials
In cases involving high exposure against your client, it may be beneficial to
conduct a mock trial. There are numerous practice groups to facilitate a mock trial that
may be helpful in garnering potential jury perception of your client, how your corporate
representative may be perceived, liability and damages. It is not uncommon to have
jurors bussed in from the trial venues which will enable defense counsel to have a jury
pool that may include “jurors” with similar backgrounds and beliefs as the actual jury.26
Lawrence G. Cetrulo, Deposition of Company Witnesses, 2 TOXIC TORTS LITIGATION GUIDE
§ 12:12 (Oct. 2004).
See Gibeaut, supra note 10, at 28 (recommending researching news accounts and using polls, focus
groups and mock juries to help detect corporate bias).
In conducting a mock trial, you may wish to present the most negative publicity
against your client to garner impressions. While a mock juror may state that such
information would not bias his or her opinion, during jury deliberations you may learn
otherwise. Following the mock trial, conduct extensive “debriefing” of the jurors to
determine the facts about your client or the case that most influenced their findings.
Motions in Limine
Although there is no express authority in either the Federal Rules of Civil
Procedure or the Federal Rules of Evidence, motions in limine are well recognized in
practice and by case law.27 Motions in limine are an important tool to use in defending
the corporate client. Not surprisingly, many attorneys are of the experience that jurors
generally do not like objections raised at trial. It interrupts the flow of testimony, and can
be seen as a further “waste of a juror’s time.” Also, if an objection is made to prevent a
witness from stating harmful information, a jury can often draw an inference that the
testimony would have been unfavorable to the party objecting. To avoid these problems,
motions in limine should be presented to preclude certain questions being posed in the
first place.
Typical motions in limine include the preclusion of settlement offers to prove
liability, evidence of liability insurance, post-accident repairs, expert testimony, evidence
barred by discovery rules, out-of court experiments conducted under dissimilar
conditions, evidence lacking foundation, evidence excludable under Federal Rules of
Evidence Rule 403 (probative value outweighed by the danger of undue prejudice), and a
defendant’s net worth on a punitive damages claim. On the issue of punitive damages,
motions in limine are extremely important in the representation of a corporate client. “It
prevents plaintiff from making ‘inadvertent’ references to defendant’s wealth, etc. before
culpable conduct is established. Juries tend to blur the distinction and may punish a
wealthy defendant even if the court ultimately rules plaintiff has failed to prove malice,
oppression or fraud.”28 Many jurisdictions allow bifurcation of liability and damages.
This can prevent the introduction of evidence of corporate wealth until after a
determination that punitive damages should be awarded.
Voir Dire
It is key to first attempt to determine how much, if any, the jury pool despises
your client. Does your corporate client have a reputation that precedes it? Your client
may have a history of poor business practices unrelated to the litigation that may
negatively impact the perception of the jury. It is also practical to be wary that the
accusations themselves may have already molded public opinion.29
Robert E. Jones et al., Final Pretrial Conference and Motions in Limine, RUTTER GROUP PRAC.
GUIDE FED. CIV. TRIALS & EV., Ch. 4-F § 4:322 (2004).
Jones, supra note 27, § 4:361.
Gibeaut, supra note 10, at 28 (recommending researching news accounts and using polls, focus
groups and mock juries to help detect corporate bias); Michael J. Saks, What Do Jury Experiments Tell Us
Begin your presentation of humanizing the corporation from the get-go. Have a
pleasant and knowledgeable corporate representative present throughout the course of
trial, beginning with jury selection. While it may not be possible to have a representative
beside counsel during the length of the trial, it is important to have a corporate
representative present during voir dire, opening statements as well as a majority of the
factual testimony and expert opinion regarding liability issues. If the client representative
is going to be away during part of the trial, it could be useful to mention this at the
outset.30 Having the corporate client’s most ideal representative at the table with defense
counsel, the epitome of “good faith, sincerity, professionalism, honesty and credibility” is
a step towards personalizing your client.31
Probe the jurors for anti-corporate bias. If representing a corporate client, and the
party bringing suit is an individual, questions should be posed to determine whether the
jurors are biased against the corporation from the outset. Questions could include the
 “Have you ever had an unpleasant experience with a large
corporation?” (Many jurors will respond in the affirmative.)
 “Tell me about your experiences.”
 “As a result of your experiences, what feelings or attitude do you have
regarding large corporations?”
 “Would any such feelings or attitude affect your evaluation of the
evidence or your deliberations in this case?”
 “You agree, do you not, that corporations, as well as individuals, are
entitled to a fair trial?”32
Jurors that tend to be more favorable for a corporate defendant include
Caucasians, persons with higher education, persons employed in a technical type of
profession, elderly or retired persons, persons with past jury experience, persons who
dress conservatively, persons who seem stern and austere (and do not have children), and
About How Juries (Should) Make Decisions?, 6 S. CAL. INTERDISC. L.J. 1, 16 (Fall 1997) (noting that
“studies uniformly find that unfavorable [pre-trial news] coverage . . . produces higher rates of conviction”).
Judge Adele Hedges and Daniel K. Hedges, Voir Dire, TEX. PRAC. GUIDE CIVIL TRIAL, Ch. 4.VI
§ 4:122 (2004).
C. Barry Montgomery & Bradley C. Nahrstadt, How to Defend Punitive Damages Claims
Effectively – And Maybe Successfully, 66 DEF. COUNS. J. 347, 361-62 (July 1999).
Hedges, supra note 30, § 4:141. Another example includes: “As you know, I represent a
corporation in this matter. You indicated to the court that this fact will not cause you to be biased against
my client. Is it then correct to state that my client is entitled to the same consideration as is the plaintiff in
this case? Would you require less proof to bring a verdict against my client than you would if my client
were an individual? You do appreciate, do you not Mr. X, that corporations are made up of individuals and
that the claims of plaintiffs are claims of misconduct on the part of individuals?” William F. Flahavan et
al., Trial of Bodily Injury Case: Impanelment of Jury, RUTTER GROUP CAL. PRAC. GUIDE PERS. INJ., Ch. 9C (2004).
persons who have been involved in similar types of accidents but who did not sustain any
injury.33 A jury consultant can be used to assist in selecting your jury. Professional jury
consultants provide reports and recommendations on demographics, profiles of the jurors,
desirability of individual venirepersons, and witness preparation.34
To establish a rapport with the jury, it is important to be prepared. If the court has
not introduced you and your client, make introductions. Also, if there are officers,
relatives or employees of the corporate client present, introduce them to the jury to
connect names and faces. It is respectful to address the jurors by last name.35
Opening Statement
Opening statement is an opportunity to personalize your corporate client
defendant. Most jurors can identify with the “American Dream” of forming a small
business, which in time grows through the strength and dedication of its founders and
employees. Jurors can be sympathetic and supportive of the aims of American business.
Identify the individuals responsible for the manufacturing process. Set forth the
corporation’s involvement in the community or charitable organizations. Explain how the
individuals of the company perform their jobs with great care and concern for the
Rest assured that plaintiffs’ counsel will attempt to portray your client as a corrupt
entity motivated by greed and self-interest. Your opening statement must narrate the
events and witnesses into a compelling defense which enables the jurors to view the case
from your client’s perspective. Building the background of your defendant and its
individual employees in a favorable manner that can allow the jurors to relate to the
company and its employees is an important initial step towards personalizing your client
in the eyes of a juror.
Drawing from a hypothesis from The Art & Science of Trial Advocacy, take a
personal injury case brought against a national petro-refinery company for injury to a subcontractor at one of the refineries of the company. The corporate representative should be
someone from the local refinery, not the national company, and should have a working
knowledge of the events in dispute. If the defendant refinery chose a shift foreman as its
representative who was on duty at the time of the alleged accident, an illustration of
opening statement could include the following:
The defendant in the case is not some nameless, faceless conglomerate
concerned only with making money at the expense of the safety of its
workers. That image, suggested by plaintiff, may feed into people’s
stereotypes, but it does not match the evidence or the reality in this case.
Flahavan, supra note 32, at 9:165.
Hedges, supra note 30, § 4:112.
Id. §§ 4:120-4:124.
PC Refining is people like Hank Durston, right here. Hard working,
productive, reliable, loyal. Hank started working for PC back when it only
had one refinery, 35 years ago. He came to work for PC straight out of high
school. He started at the bottom of the ladder and through persistence and
hard work and commitment he advanced through the ranks until three years
ago he became a shift foreman. Hank often says that he’s done every job
there is to do at a PC refinery, from cleaning bathrooms to hiring and firing
workers. Since he started at PC, Hank has married his high school
sweetheart, became a father four times over and recently, a grandfather.
He’s never lived anywhere other than right here; he’s never worked
anywhere other than at PC. He will tell you about the culture at PC
Refining, that it is more like a family than a corporation and that is a place
that puts the safety of its workers first, far above profits or productivity. If
it was any other way, Hank Durston wouldn’t have stayed for so long.36
It is important to identify the “defendant” as the representative sitting at the table
alongside you for the duration of the trial.37 If you bring someone to the table with no
real involvement in the case, Plaintiff’s counsel may point this out to the jury. During
opening, such questions could be made: “Where is the Vice-President who made the
decision to design the smoke-detector as a photogenic detector, rather than a duel detector
with an ionization sensor?” “Where is the engineer that designed this project?” “Why
didn’t they bring him?” “Couldn’t they find someone who cared?”38 To avoid questions
like the above, choose your client representative wisely and present this representative as
the “person” on trial, not your corporate defendant.39
An alternate approach is to shift the focus from the client to the defense counsel.
If this approach is taken, use words such as “we” or “our company” to draw attention to
yourself. “If the lawyer is to take the place of the corporate client, some logistics in the
courtroom can help establish this point. The associates should be kept far from counsel
table, and communications should be outside the sight of the jury. Then the visual line-up
may have the plaintiff, the plaintiff’s spouse, the plaintiff’s lawyer, the plaintiff’s
lawyer’s associate, and a pile of files on one side; and the defense lawyer alone with just a
few papers on the other side – one sole lawyer on one side against an array of plaintiff’s
L. Timothy Perrin et al., THE ART & SCIENCE OF TRIAL ADVOCACY 130, 131 (2003).
Roberto Aron et al., Personalizing the Corporate Client, TRIAL COMMUNICATION SKILLS § 29:24
(2d ed. Sept. 2004).
Dominic Gianna, The Non-Defensive Opening Statement for the Defense, OPENING STATEMENTS
§ 6:7 (Sept. 2004).
Gianna, supra note 34, § 6:12; Aron, supra note 33, § 29:24 (noting the following scenario:
“Lavin was defense counsel for an automobile manufacturer in the case of a seriously brain-damaged
college student who drove a car made by his client into a pole. He presented it as a case against the retired
engineer who designed the mechanism in the car that was brought into question. Lavin said, ‘It was the
engineer who was on trial – seventy-eight years old and retired.”)
legal staff on the other side!”40 This is a more risky approach to take and in general most
lawyers would rather have a corporate client present. You run the risk of questions from
adverse counsel to the effect that if the company cared about the plaintiff or the lawsuit,
someone would have been present at trial.
Client Present Throughout Trial
As set forth above, if possible your client representative should be present
throughout the majority of the trial. Advise your client that his or her presence will help
the jury to consider the physical person as the defendant, which will garner more
sympathy and support than a face-less corporate entity.
Closing Statements
Ending on the closing statement, steps should be made to impact the jury’s
perception that the corporations are comprised of persons with names, motivations and
feelings. Emphasize the personal involvement. An illustration follows:
What more could we have done. We provided our driver, Tom Murphy,
with a vehicle in excellent condition. Tom had been with us for over
twenty years. Is there anything more he could have done? You saw Tom
on that witness stand for over three hours. He was obviously disturbed
because he was being required to recall that night of horror. But, you had
to know that you were looking and listening to a sincere, decent man who
knows that he did not run the red light . . .41
As plaintiffs will not only seek compensation but also punishment of the corporate
defendant, if punitive damages are sought it should be reiterated to the jury that the
corporation is compiled of individuals like the jury who would be affected by an award of
punitive damages against the corporation. While as a legal entity the corporation is
incapable of suffering, an award of punitive damages harms the employees who depend
on the corporation for their livelihood, as well as stockholders, suppliers, charities and
often entire communities.42
In suits involving punitive damages, many courts allow fact-finders to be told that
they may consider the financial circumstances of the defendant. The rationale behind
Aron, supra note 37, §29:24.
Fred Lane & Scott Lane, 3 LANE GOLDSTEIN TRIAL TECHNIQUE § 23:95 – Corporate Clients (Nov.
C. Barry Montgomery & Bradley C. Nahrstadt, How to Defend Punitive Damages Claims
Effectively – And Maybe Successfully, 66 DEF. COUNS. J. 347, 361 (July 1999); Stephen G. Good,
Defending Against Punitives, 21 NO. 2 LITIGATION 29, 32 (1995) (where possible a jury should be told
about the human side of a defendant corporation to demonstrate to the jury that a defendant corporation is
not an “evil empire” or monolithic wrongdoer).
allowing a company’s financial worth to be considered is determining the amount of
money necessary to deter and punish. Imagine plaintiffs’ counsel telling a jury, unaware
if there is insurance coverage, to send a message against your client. Your client’s total
assets and net worth will be emphasized, although profits and operating margins of most
corporations are reflected in a smaller value.43
In sum, there are many steps that can be taken towards safe-guarding a corporate
client before a jury. Corporations, while legal entities, are comprised of hard-working
individuals and are often highly active in the community. While there may always be the
stigma of the underdog against your client, personalizing the corporation by utilizing the
factors set forth above before a jury can serve as a tool to prevent the façade to be
presented by plaintiffs of an evil, greedy empire.
Corporations can be successfully defended. Below are some thoughts garnered in
the last twenty-five years of practice on how to “personalize the impersonal” before a
jury: be wary of the media coverage involving the subject litigation or other negativity
towards your client; probe jurors in voir dire for potential bias; choose a corporate
representative wisely, someone familiar with the factual background of the case who can
relate to the jury; and take steps to assign your corporate representative as the face of your
corporate client. Jurors can relate with a person, rather than the corporate entity.
See Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768 (Tex. App.--Houston [1st Dist.] 1987, writ ref’d
n.r.e.), cert denied 485 U.S. 994 ($3 billion award for punitive damages in addition to compensatory
damages of $7.53 million for alleged tortuous interference with a contract). The appeals court found the
punitive damage award in favor of Pennzoil excessive by two billion dollars. The parties subsequently
reached a settlement, approved by the bankruptcy court as Texaco had filed for bankruptcy.