Humanizing the Corporate Defendant
By Steven N. Joseph
(Please note that the views expressed in this article are written as my own views to provide guidance for defense counsel, and do not, in any way, reflect those views of Western World Insurance Company, Validus Specialty, or AIG.)
I was recently asked to comment on my thoughts regarding the topic “Humanizing the Corporate Defendant,” and I was immediately struck by the false implication in the topic itself. Just to say that we desire to make a “Corporation” appear to be more “Human” misses what we want entirely.
The problem with this concept is the fact that humans can be everything from the sweet and kind grandmother to the ruthless and deceptive conman. While we may not be able to get the Corporation to be the sweet and kind grandmother (even if the Corporation is called “Grandma’s Old Fashioned Cookies”), we do want to get as far away as possible from the ruthless and deceptive conman.
Unfortunately, “profits over safety” may seem like the corporation looking out only for the shareholders and bottom line, it is quite human. It is just not the kind of “human” that we are looking for.
So, instead of focusing our energy on simply trying to make a Corporation seem more Human, the focus should center on the story. This brings to mind “mock” jury trial exercises. Those people who have participated in “mock” jury trials will tell you that they are often asked two important questions.
The first is “do you have a strong desire to compensate this particular plaintiff?” The point here is that with widows and orphans, juries may not care much about the facts, but are more inclined to want to compensate the very sympathetic plaintiff.
The second question may be the more important one: “Do you have a strong desire to see this particular defendant lose?”
This question has two separate components. First, there is the obvious kind of defendant that a jury will detest; the arrogant, self-righteous, obnoxious defendant who by the way is very human, and would probably be better off as a corporation.
The second component is defense counsel, and the way they try the case. There are the defenses that I call “law school exam” defenses that may get you points on the law school exam, but you may quickly lose a jury. Defense presented should not be legalese arguments, but rather, concepts that juries can understand and appreciate. If mistakes were made, they are better received when they are conceded. It is a much better way than trying to defend the indefensible.
Humans are not perfect. We want to learn. We want to be better citizens, and we are always striving to improve. Are we interested in profits? Yes. We are. But how we make profits is that the same way we earn trust and respect with our customers. Good common sense should also be good business sense. That is the kind of human that defense counsel should hope to be able to portray.
With a corporation, you may find that simply trying to “humanize” the corporate defendant inferior to the concept of the “Corporate” defendant itself if the Corporation has the right “corporate culture”.
While humans can make mistakes, the corporation has a team of humans. There are people to balance ideas against each others. Bad ideas may fall by the wayside. Decisions may be directed towards our better human instincts. Corporations may have “stop signs” and “processes” because of a culture and team effort that may be superior story to the attempt to “humanize” the corporate defendant. The Corporation with many humans may turn out to be a lot smarter and a bit less reckless than an individual human.
Common sense should also be the focus on the story that we tell a jury. Think about this statement as part of your closing argument: “Ladies and Gentlemen. This is my favorite kind of case to try. It is not because of fancy experts or sexy issues. It is because with this case, I can simply rely on the common sense of the jury issues. Whenever I can rely on the common sense of the jury, juries always do the right thing.”
With your corporate defendant, you may already be given a simple story that makes a lot of sense. Because of this, the best course of action is to stick with what you have. You want to try to fool the jury by trying to “humanize the corporate defendant”. Ultimately, the only person that you may be fooling is yourself.
