Am I pushing your buttons?
In most product liability trials, the plaintiff’s goal is to keep the focus squarely on the behavior of the defendant. They want to characterize that behavior as “bad” and try to elicit strong emotions, typically fear and anger, from jurors. Unfortunately, our clients have often given them something to work with, even if it’s only tangentially related to the case. A seasoned trial attorney can usually identify what will be an issue ahead of time – those unfortunately worded marketing documents, that insensitive email – and craft a response. Still, despite your best efforts, you may find yourself in court answering for bad conduct and trying to calm the rage that plaintiff’s are trying to ignite.
To complicate the matter further, sometimes there are hot buttons that you don’t know exist until you push them. In a comment analysis we conducted on a vaccine article, the second most discussed issue – after vaccines – was raw milk. In the original article, the author made a passing remark casting doubt on the safety of raw milk and that comment unexpectedly hit a nerve with many readers and altered the course of the discussions. As anyone who has watched mock jury deliberations can attest, this happens quite frequently with jurors, and can be unnerving.
Identifying the hot button issues in your case prior to trial is imperative. But it is not enough. In order to develop an effective trial strategy, you must understand why it is a button. What emotions is it evoking? Why are jurors so sensitive to this issue? This deeper understanding is essential for two reasons:
1) So you can disarm the button. If you do not understand why the information is triggering such a strong reaction, you cannot address it in a way that does not offend jurors or appear to be minimizing the behavior. The response to the bad behavior has to be sensitive to jurors’ concerns and address the specific cause of those concerns. For example, if a young, female employee testifies that she flagged a problem, but the company did not take action, it is easy to focus entirely on the missed warning and craft a response that is solely directed at disarming that button. What that response is likely to miss, however, is the underlying button that aggravates many jurors – Was she ignored because she is young? Because she is a woman?
2) So you can choose the best jury. With any hot button issue, jurors will fall into one of three categories: not emotionally triggered by the issue; emotionally triggered, but able to be receptive to the right argument; and too triggered to be persuaded by any argument. Only a thorough understanding of the buttons imbedded in your case will allow you to tell the difference.
So even in cases with plenty of interesting and titillating facts to distract jurors from where you would like them to focus, there is still reason to hope. As long as you properly identify and address what is stoking juror reactions, there are jurors who can quiet their emotions and respond reasonably to your case.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.