Published in New Hampshire Bar News
By: Jennifer L. Parent
As media accounts of company misfeasance, layoffs, or product recalls have affected people’s views of corporate America, it’s not uncommon that jurors come to court with preconceived impressions of the corporate party as cold, uncaring, or the “deep pocket.” And if the other side is an individual, a “David v. Goliath” mentality may exist.
Whether a corporate client is the plaintiff or the defendant, jury voir dire is a prime opportunity to uncover any attitudes or biases potential jurors may hold, so that a fair and impartial jury is selected. It also offers a chance to break the stereotypes and humanize your client for this situation.
Preparing for Jury Selection
There are a variety of scenarios in which a corporation may be a party to litigation – employment, products liability, contract, etc. Jury selection is about finding those jurors who will be receptive, or more importantly, unreceptive to your client or your client’s message.
Voir dire also allows you to determine whether jurors will be receptive to the theory or themes of your case. It is an opportunity to highlight aspects of your case before the opening statement – to let jurors know what your case is about through topics you introduce in questioning.
Preparing questions that highlight those jurors who favor the opposing party’s case or uncover bias toward your client takes time. This is not something you can scribble on a piece of paper as the jury pool is walking into the courtroom.
Making a Connection with Potential Jurors
Since 2005, each party has the right to examine prospective jurors by “oral and direct questioning… to intelligently exercise” peremptory and for-cause challenges, according to NH RSA 500-A:12-a, III. It’s an opportunity that should not be waived. Other than the opening statement and closing argument, it is the only opportunity a lawyer has to talk directly to the jurors and build a connection with them.
In federal court, judges decide whether to allow lawyer-conducted voir dire. Even if this process is restricted or not allowed, it’s a good idea to submit supplemental voir dire questions to the court to touch on any biases or attitudes specific to your case or corporate client. If lawyer-conducted voir dire is allowed, the court will generally expect counsel to address any supplemental issues at that time.
Uncovering Biases and Attitudes
As counsel, you are attempting to determine if there are any biases or prejudices based on the type of case being litigated or against the company-litigant itself. You want to elicit any sensitivities jurors may have about your corporate client. If the company is known in the community, what is its reputation? Have any of the jurors had an experience with the type of product or service your company delivers? Follow up with an open-ended question that ask jurors to explain their experiences. Ask other jurors if they agree or disagree or have shared a similar experience.
Remember, all of us are a little biased. We have favorite sports teams or players or preferred restaurants or foods. The goal of voir dire is to uncover those attitudes that make the juror not right for your particular case. Keep it conversational and craft questions that will uncover any attitudes that may impact a juror’s ability to consider the evidence and deliberate on the facts of your case.
Take, for example, the representation of a construction company involved in a significant commercial development. The lawyer for the company will want to uncover any prejudice people have about “building up” our state or about the environment. In the end, appropriate jurors are people who believe that corporations, like individuals, are entitled to a fair trial.
Selecting a Company Representative
Humanizing the corporate client – putting a face on this artificial person created by law – includes carefully selecting the corporate representative who will sit at the counsel table during the trial.
While in-house counsel or a high-level executive is usually tapped for this role, consider whether there is a more appropriate representative for your case.
For example, if you are representing a company seeking to enforce an agreement against a former employee, consider having the company employee who is being accused of doctoring the agreement in question sit with you at counsel table.
In an employment discrimination case, consider selecting the human resources professional who made the final termination decision. If a trademark case, consider an employee who is knowledgeable about the product who will relate to the jury. These individuals will be witnesses at the trial and sitting in the courtroom to hear the allegations and testimony. When the time comes for them to testify, jurors will be eager to listen.
During voir dire and in your opening statement, remember to introduce the corporate representative to the jury. You want the jury to connect faces to the names they will hear about in witness testimony and see in corporate documents. This personalizes the legal entity. You want the jury to empathize with those who were involved in the issues being tried.
Litigating For Your Corporate Client
Negative public perceptions of corporations or certain types of companies require a different approach when presenting your client to a jury at trial. Lawyer-conducted voir dire allows you the opportunity to uncover any biases jurors may hold that affect their ability to deliberate on the facts presented and to build a connection with the jury. It also allows you to humanize the company so jurors can put a face to your client as they deliberate.&
Jennifer L. Parent is a director in the Litigation Department and Chair of the Employment Law Practice Group of McLane, Graf, Raulerson & Middleton, P.A. and can be reached at (603) 628-1360 or [email protected]. She is a member of the New Hampshire Bar Association, Massachusetts Bar Association, U.S. District Court for the District of New Hampshire, and First Circuit Court of Appeals.