• LITIGATION TIP #1

Pay Special Attention To Potential Jury Leaders.
On your jury questionnaire or in early voir dire, ask prospective jurors not only about their occupation, but also about whether they have ever held a supervisory position. In some ways, the experience of having supervised others is more important in forming attitudes and leadership traits than a person’s specific occupation. Devote special attention to jurors with supervisory experience as well as experience working for a large company. These jurors are likely to have greater savvy in working with and leading groups, making them more natural candidates to emerge as a real or de facto jury foreperson. Leadership experience doesn’t necessarily make a juror good or bad for your case, but it does make the attitudes of that leader pivotal.

• LITIGATION TIP #2

Assess Jurors’ Outlook Toward Individual Responsibility.
To uncover this dynamic, you may be tempted to take the direct route. But asking, “Do you hold individuals responsible for their own actions?” is unclear and lacks context. Such a question also makes it too easy to give the socially desirable “yes” response. Instead, frame the question to reflect the facts of your case:

• If an individual and a company were entering into a contract, how many of you would say that the company bears the greater responsibility to make sure that contract is clear?
  
  
• In a dispute about something that wasn’t discovered or disclosed in a sale, would your first thought be, “Well, the buyer should have asked?” or, “The seller should have told?” How many of you would first think, “The buyer should have asked?” And how many of you would first think, “The seller should have told?”

• LITIGATION TIP #3

Carefully Probe Jurors’ Religious Orientation.
While it is not necessary or wise to exclude jurors solely on the basis of religion, it can be part of the overall picture of a juror’s worldview. Asking jurors directly about their religious preference or practice may risk offense, send an unintended message about your case, tell your opponents whom to strike and may be unlawful. Instead, ask jurors how they spend their free time, or what reading materials they prefer. In general, the more pro-authority, pro-corporate juror is the more religious juror.

• LITIGATION TIP #4

Aim Your Message Toward Your Toughest Audience.
In a perfect world your jury would be filled with those individuals already oriented toward corporations. The real test of a case is your appeal to the jurors who begin presuming misconduct, expect a positive defense of your case and who value just and right conduct over conduct that is merely legal.

Always Assume A Burden Of Persuasion.
Knowing that many jurors are likely to place “doing the right thing” ahead of “following the law” in any setting which carries litigation risk (contracts, employments, compliance, etc.), assume a positive persuasive burden by continuously building the case that you not only did “the legal thing” but “the right thing” as well. Create a record showing you exceeded minimum legal or regulatory standards. Show that you gave employees access to information in decision-making situations. Ensure that employees can feel confident explaining they made decisions in the interests of all affected parties and not just in the company’s interest.

• LITIGATION AVOIDANCE TIP #2

Communicate Internally As If Your Image Depended On It (Because It Does).
The documents you create and the e-mails you exchange within your company may play a role in future litigation. The jury will assign the highest amount of credibility to those exchanges that are viewed as the least guarded. For that reason, the offhand e-mail is likely to be far more influential than even the most prepared and polished testimony.

• LITIGATION AVOIDANCE TIP #3

Don’t Be Afraid Of A Profit Motive (Because It Is More Credible Than Any Other Motive).
If you are thinking about how you would defend your present actions in the future, the most credible explanation is often the most basic: profit. Jurors expect corporations to act to maximize profits, and when jurors hear that a company “did the right thing,” because the right thing also happened to be “the most profitable thing,” the explanation is that much easier for jurors to trust.