There are three ways to defend an oil company involved in litigation, according to jury consultant Dan Jacks: the good, the bad and the downright ugly. But even if it’s ugly, it’s best to start any defense with the reality of what jurors really think about your client going in.
“It is not useful or accurate to think of jurors as disliking oil companies, instead it’s much more accurate to assume they distrust or fear oil companies,” Jacks said.
And no amount of humanizing a large oil company — or any large corporation – is going to sway jurors into thinking about them as just folks.
Jacks and his colleague, Mark Sobus, both of EDGE Litigation Consulting in Kingwood, Texas, described for a room of energy litigators what works with jurors – and what doesn’t – at the Institute for Energy Law’s 17th Annual Energy Litigation Conference in Houston last week.
According to an EDGE-conducted juror poll, 73 percent of respondents said they believed there should be more government regulation of oil and gas companies. Sixty-five percent felt the same way for both pharmaceutical companies and insurance companies.
Sobus said this “fear” factor is a burden large companies must assume going in. It says, “I want someone else to control energy companies because I can’t.” And transparent attempts to humanize such clients can actually make things worse.
Jacks recalled a mock trial during which a defense lawyer pulled up a slide of an energy company’s beautiful, large building. The lawyer then told jurors that there was a person in each window that was working hard to support his or her family.
“One juror’s response was, ‘That’s a really big building,’ ” Jacks said. “And the more cynical response was, ‘You must have had to cheat a lot of people or other companies to get a building that big.’ ”
“I love the strategy of humanizing the company – not because it works, but because it’s amusing,” Jacks said.
Equally perilous is a corporate defense that relies on ad hominem attacks against the plaintiff.
Jacks told the story of a mock trial involving a lost wages claim in which the defendant pointed out immediately to the jury panel that the plaintiff was a stripper, a remark that one juror regarded with a grain of salt.
“So since she’s a stripper and this is lost wages – how much does a stripper make an hour?” asked one juror.
The reaction of others was more incredulous – “How dare that defendant bring up that she’s a stripper!” Jacks recalled.
“Typically, jurors are much more interested in your conduct than the plaintiff’s character,” Jacks said.
Sobus recommended a couple different strategies for energy companies stick to when they are defendants at trial: a knowledge and control strategy and managing distrust and fear among jurors.
He said the knowledge and control strategy entails acknowledging the plaintiff’s claim and embracing the knowledge and control the energy client has over the situation and embracing it.
“No one comes to the case inherently skeptical of a plaintiff’s allegations,” Sobus said. “They [jurors] assume if someone brought a claim, there’s probably some merit to it.
He said jurors expect oil companies to address the plaintiff’s allegations “before pointing your finger at someone else. This is how the jury feels when the plaintiffs say all the terrible, true things about you.”
In order to manage distrust and fear among jurors, Sobus said it is effective for defendant oil companies to do things like provide reassurance (“you are right to have concerns; we share them”) and provide actions the company has already taken specific to the jury’s concern (i.e. the layers of protection your company implemented in anticipation of the situation arising).
One thing that doesn’t work to reassure, Jacks says, is using a scientific explanation.
“Jurors have less trust in scientific evidence since science is always changing,” Jacks said.
Jacks concluded by leaving oil and gas lawyers with three trends his firm is currently seeing amongst jurors’ thinking in energy-related litigation:
1. The legal structure of the parent/subsidiary is a poor defense once the question gets to the jury. He said 73 percent of jurors polled said they believe the parent company of a business has at least some responsibility of its local business that makes a mistake that leads to an accident.
2. Acting/talking like a partner or joint venture is more important to jurors than what the documents actually say. “Despite language in the contract… a juror sees you as married if you act like partners and talk like partners in emails,” Jacks said, which was a nod to the 2014 ETP v. Enterprise trial that resulted in a $319 million jury verdict.
3. The argument that there was a mistake in the contract won’t be bought by jurors. “If the argument is that you made a mistake when writing the contract, you’ll be fighting an uphill battle,” he said.