Reprinted with permission of Marsha L. Montgomery, Karen Ohnemus Lisko, Ann E. Gendaszek, and the American Corporate Counsel Association as it originallyappeared: Marsha L. Montgomery, Karen Ohnemus Lisko, and Ann E. Gendaszek, “Post-Enron Jury Perceptions and What to Do about Them,”

ACCA Docket 21, no. 5 (May 2003): 78–91. Copyright © 2003 Marsha L. Montgomery, Karen Ohnemus Lisko, Ann E. Gendaszek, and the American Corporate CounselAssociation. All rights reserved. For more information or to join ACCA, call 202.293.4103, ext. 360, or visit www.acca.com.

78 ACCA Docket May 2003

Post-EnronJury

You’re sitting in your office on a Thursday after-noon when you learn that your company has beennamed in a lawsuit that includes the risk of huge

potential damages. You recall having read the latest sur-vey results that said that juries have been increasinglyanticorporate since the Enron collapse and other recentcorporate scandals. Who could blame you when threewords flash through your mind: “Settle this case”?Before you jump to that conclusion, however, ask your-self this question: Does the latest information that con-firms anticorporate bias automatically translate into bigpayouts for plaintiffs in this post-Enron era? Not neces-sarily. In fact, jury research conducted by two of theauthors finds that a “desensitizing effect” against plain-tiffs can frequently occur under certain case conditions,even in light of increased anticorporate sentiment.

Perceptionsand

May 2003 ACCA Docket 79

What is this “desensitizing effect” and where does it origi-nate? It is a phenomenon whereby juries, like society in gen-eral, register less shock over time about a particular “bad act.”Early juries might first be shocked by a bad event and mightblame the party with the most perceived power—the defen-dant—with a finding of high damages. Then, as societyadjusts, juries adjust, so much in fact that later juries blamethe plaintiff for not “knowing better,” for not having antici-pated that the bad outcome would occur.

Consider, for example, breast implant litigation from morethan 20 years ago. Research conducted by one of our authorsin the early 1990s bore out the fact (and actual jury verdictsconfirmed) that many jurors were initially shocked that a sili-cone product might potentially cause autoimmune disease in awoman. Even though some of the subsequent scientificresearch found no statistically significant difference betweenincidents of autoimmune disease in women with or withoutbreast implants, the shock over the risk of a connection con-tributed in part to some significant plaintiffs’ verdicts. Juryresearch conducted later that decade found that subsequentlawsuits met with jurors’ heightened scrutiny of the plaintiffand her knowledge of previous litigation. Given the media’s

attention to alleged risk of silicone breast implants, certaintypes of jurors apparently punished plaintiffs for not “know-ing better” than to get breast augmentation.

Outside the realm of product liability litigation, precedentfor the “desensitization effect” exists in other corporate litiga-tion arenas. In breach of contract cases, for example, jurorsare no longer shocked (as they once were) that parties to thecontract frequently meet only the prescribed minimum of thewritten language of the contract without performing aboveand beyond that required duty. Today, when plaintiffs claimthat an oral contract was breached in addition to written com-mitments, many jurors criticize the complainant for havingexpected more from the defendant corporation than thelegally required performance of the written elements, even ifjurors also conclude that a greater moral obligation existed onthe part of the defendant to exceed those “black and white”elements.

By Marsha L. Montgomery, Karen Ohnemus Lisko, and Ann E. Gendaszek

DoThem

What toabout

Persuasion Strategies, a service of Holland andHart, LLP, conducted a nationwide survey of juryeligible respondents February 3–5, 2003. Surveyrespondents were presented with a scenario involv-ing a contract dispute between some plaintiffs and amajor corporation. After having heard that the par-ties had entered a written agreement in which thecorporation was required to provide services to the

plaintiffs for several years, respondents were askedwhat message they would wish to send with theirverdict in a case involving a major corporation. Wecompared their leaning (favor plaintiff or favordefendant) to the content of the open-endedresponse that they provided. Even jurors who indi-cated a leaning toward the plaintiffs voiced criti-cism of the plaintiffs:• “They [the plaintiffs] should have known better

now—everything [in the contract] is black andwhite. We are in a gray society. There are toomany loopholes.”

• “Be sure you fully understand what the corpora-tion has written in fine print.”

• “Before signing any agreement with a corpora-tion, the plaintiff should carefully examine allpapers and know exactly what they are signing.”

• “A knowledgeable plaintiff would be able toidentify a breach of service.”

• “The plaintiff should have known the facts.”Not surprisingly, respondents favoring the

defense had the following to say:• “All parties should make themselves knowledgeable.”• “If you’re dealing with a person or company,

both sides need to be fully knowledgeable aboutwhat they’re entering into before signing a con-tract together. If one party fails to do so, thenthey get what they deserve.” Interestingly, many respondents indicated that

they felt that the plaintiff and the corporationshould be equally responsible for understandingthe terms of an agreement. See the graph at leftregarding respondents’ assignment of responsibilityto parties to understand the terms of an agreement.

ENRON EFFECT VS. DESENSITIZATION EFFECT

So has jury scrutiny of the plaintiff changed inthese post-Enron days of higher “disapproval rat-ings” of corporations? It has, but in a way thatmight surprise you.

The Enron scandal is on jurors’ minds. It hasbeen a central focus during deliberations in everymock trial that we have conducted since the energygiant’s collapse, including employment cases, gasroyalty cases, and patent litigation. Our researchhas found that jurors are disappointed but notastonished by Enron’s misconduct. Moreover, in the

Karen Ohnemus Lisko, Ph.D., is a senior litigationconsultant with Persuasion Strategies, a serviceof Holland & Hart, LLP, in Denver. She conducts

pretrial research and has provided experttestimony on jury bias, jury decisionmaking, and

community attitude survey research for change ofvenue. She is also president of the American

Society of Trial Consultants. She is available atklisko@persuasionstrategies.com.

Ann E. Gendaszek is a research associate withPersuasion Strategies, a service of Holland &

Hart, LLP, in Denver. She assists with the designand analysis of mock arbitrations and bench and

jury trials. She is a member of the AmericanSociety of Trial Consultants. She is available at

agendaszek@persuasionstrategies.com.

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Marsha L. Montgomery is litigation counsel at BP America Inc. in Houston.She is available at montgom@bp.com.

82 ACCA Docket May 2003

months immediately following Enron’s collapse,Persuasion Strategies’ mock trial research indicatedthat jurors were astonished by Arthur Andersen’srole in the company’s actions. As a major account-ing and auditing presence, Arthur Andersen hadreceived generally favorable marks before the Enronscandal. The firm’s fall from grace in connectionwith Enron, therefore, caused greater shock forjurors. Jurors have, however, already begun todemonstrate a surprising change in attitude towardaccounting firms. Results from our survey showthat more respondents (75 percent) hold favorableopinions of accounting firms in comparison to othertypes of companies. The accounting industry, there-fore, appears to be bouncing back from jurors’initial disfavor with the profession immediatelyfollowing Enron. See the graph below and thegraphs on page 83 for a comparison of jurors’opinions of large and small companies.

As seems to be the case with many startlingevents, the first occurrence of an Enron-like event isfollowed by public outrage. The second time that asimilar event occurs, this outrage is likely todecrease. Enron and subsequent corporate scandalsseem to cause a “desensitization” effect on plaintiffsif certain facts about the plaintiffs are true. Resultsfrom our survey lend support to the “desensitiza-tion effect.” Sixty-nine percent of respondentsagreed with the statement “I was surprised to learnof Enron’s actions leading to the recent collapse of

the company,” while only 31 percent indicated thatthey were not surprised. In response to a followupquestion, 38 percent of respondents agreed with thestatement “I would be surprised if another companyacted like Enron did in the future.” Sixty-two per-cent reported that they would not be surprised. Seethe graphs on page 84.

One month after Enron had declared bankruptcy,two of the authors conducted mock trial researchinvolving a major corporate defendant. Even at thatearly stage, mock jurors exhibited the “should haveknown syndrome.” In the same breath, 93 percentof mock jurors overwhelmingly agreed that “com-petitors would readily conspire together if itincreased their profits,” and they placed a greateronus on the plaintiffs to be aware of that potentialand to be more aggressive in its due diligence whenentering into the contract. As one mock juror inthat research put it, “We know these companiesconceal information. They [the plaintiffs] shouldhave had several auditors who all looked for differ-ent things to make sure the auditors’ companiesweren’t working together.”

As you can see, however, by comparing the verdictmessages of survey respondents favoring plaintiffsand the verdict messages of survey respondentsfavoring defendants in the graphs on page 86, neitherside in a dispute should assume that the jury mustautomatically favor one side over the other.

THE HEIGHTENED STANDARD FOR SOPHISTICATEDPLAINTIFFS AND DEFENDANTS: A TWO-PART TEST

Regardless of the type of litigation, the relevantsophistication of the plaintiff carries significantweight in jurors’ assessment of defendant compa-nies’ fault. We have conducted a great deal of mocktrial research in the last few years related to com-plaints of oil and gas royalty underpayments by roy-alty owners. Sometimes, the plaintiffs are ranchers orfarmers. Sometimes, the plaintiffs are attorneys orother companies. When the defendant oil companiesacted in a similar manner in both cases, the sophisti-cation of the plaintiff seemed to make a dramatic dif-ference in mock jurors’ assessment of their claims.Mock jurors seemed to be much harder on the moresophisticated plaintiff. In those cases, damages wereeither mitigated or were not awarded at all.

May 2003 ACCA Docket 83

You might suspect a David and Goliath syn-drome at work here. Although that explanation islikely true in part, the entire reason seems to bemuch more complex. We find that jurors consis-tently apply a two-part test in evaluating all partiesin a case. First, they seem to consistently evaluateevery party’s respective power. For example, incases involving products that have malfunctioned,jurors seem to scrutinize the defendant for its priorknowledge of performance problems and, in turn,critically assess the plaintiff’s access to the informa-tion about the product’s propensity to malfunctionunder certain conditions. For example, warningsabout common misuses might exist in the owners’manual. So even though the jurors might not rou-tinely read the owner’s manual for their own pur-chases, they typically hold the plaintiff to a higherstandard of actually having read the owner’s manual.

Second, jurors seem to look at the choices avail-able to each party against the backdrop of thepower that each possesses. They may want answersto such questions as these: Did the manufacturerchoose to alert consumers to potential hazards? Didthe research and development division look at saferalternatives to the product elements that causedproblems for the user? Alternatively, did the plain-tiffs avail themselves of all available informationregarding uses and misuses of the product? Didthey have options with other products on the mar-ket that might have been easier to operate? In addi-tion to the evidence presented at trial about theparties’ choices, many jurors supplement from theirown individual experiences.

CAN JURORS’ CYNICISM UNIFORMLY CREATEOPTIMISM FOR CORPORATIONS? THERE IS STILLROOM FOR CAUTION

So does this “desensitization effect” of cynicismabout events and companies signify a return to opti-mism for trying cases as a corporate defendant?Not automatically. Ongoing research suggests thatjurors’ standards for evaluating power and choicesmade by both parties are higher than ever. Morejurors seem open to awarding damages against cor-porations in cases in which fault exists. OneLitigation Insights study that compiled mock trialfindings involving 543 mock jurors found a differ-

ence between factfinders who had evaluated casesbefore and after the Enron collapse. Before theEnron collapse, 46 percent of mock jurorsagreed/agreed strongly that there should be a capon the money damages awarded in a civil trial.Post-Enron, the number of mock jurors whoagreed/agreed strongly dropped to 29 percent.1

Results from our February 2003 survey revealedthat 75 percent of respondents agreed with thestatement “If someone sues a major corporation,the case must have some merit.” At the same time,80 percent agreed with the statement that, “if amajor corporation could benefit financially by lying,it is probable it would do so.”

84 ACCA Docket May 2003

Additionally and likely not surprisingly, jurorsseem to be placing greater focus on ethics in thepost-Enron era than in previous years. In the mocktrial research that we had conducted before Enron,55 percent of mock jurors felt that, “when personalethics and the law conflict with one another, thelaw should be followed.” There was a statisticallysignificant shift in how mock jurors responded tothe same question in mock trial research conductedpost-Enron. Seventy-six percent of these mockjurors indicated that personal ethics should prevail;only 23 percent felt that the law should be fol-lowed. See the graph on page 87 for the pre- and

post-Enron comparison of responses to the issue ofthe law v. personal ethics.

For more than 20 years, numerous studies havepresented findings charging that juries are pro-plaintiff, are prejudiced against business, and per-form with a deep pocket approach in awardingdamages.2 Valuable insight into understanding howjurors treat corporate defendants appears inresearch conducted before the events of Enron.3

Valerie Hans, for example, discussed the findingsof her research on civil jurors in business cases in arecent interview:

When I looked at the impact of attitudes towardbusiness on decision making, these attitudes wereonly occasionally related to assessment of businessnegligence. Jurors do treat corporate defendantsdifferently than individual defendants, but not pri-marily because of anti-business prejudice or deeppockets. Instead, I found that many jurors heldhigh expectations of business litigants, and thesehigh standards were important factors associatedwith jurors holding businesses responsible.”4

The headline of an article in the National LawJournal years before the events of Enron read,“Jurors Do Not Trust Civil Litigants. Period.”5

Since October 2001, this message continues to gainmomentum and appears with increasing frequencyin such headlines as these: “Lawyers Find Jury PoolPolluted by Antibusiness Biases”6 and “TwelveReally Angry Men: The Parade of CorporateScandals Is Giving Jurors Plenty of Reasons toDistrust Big Companies. A New Study Suggests It’sOnly Going to Get Worse.”7 Most recently, theheadline of the cover story in the February 2003issue of Diversity and the Bar reads, “National JurorPerception Survey Warns that People of DifferentColor Have One Thing in Common: DistrustTowards Corporations.”8

Without question, jurors’ sympathy toward cor-porations has never been lower, but their scrutinyof plaintiffs and of their use of power and choicesremains high.

TURNING THE RESEARCH INTO PRACTICE

Given the combination of the “desensitizationeffect” and decreased corporate sympathy, you havemany choices in evaluating your own cases.

Combat Anticorporation Bias in Daily Practice• Unless a legal reason exists for not doing so, go

above and beyond the minimum required by acontract’s terms when dealing with parties toyour contract. Build a paper record of havingdone so. Jurors tend to reward a company forhaving gone beyond the prescribed minimum.Many find it novel that a company would exceedlegal expectations.

• Caution employees at all levels of your companyto refrain from making flippant remarks in emailsabout individuals or other companies. Jurors fre-quently find “truth in jest” and often take theseemails as an indication of the “real” dynamics ofa relationship between your company andanother party even when it may not be fair forjurors to draw that conclusion.

• Make sure that the employees in your companywho have the day-to-day responsibil-ity for implementing a contract knowthe contract terms and how they areto be fulfilled. Jurors tend to believedaily behavior over a corporate wit-ness’ statements about a company’sdaily goings-on. Truly, an ounce ofprevention is worth a pound of cure.• Because jurors seem to concludethat a company acts out of a profitmotive, your strongest posture in acase is to embrace that profit motive.To argue credibly that a priority onprofits motivated your company toact ethically, review your company’sroutine behavior through the lens ofconsistency in a profit-motivated,ethical mode.

Consider Anticorporate Bias in Trial Preparation• Objectively evaluate the otherside’s use of power and choice inyour case to determine how the“desensitization effect” might play.To attain the greatest benefit fromthis evaluation, conduct early focusgroup research before the completionof discovery rather than waiting todo a mock trial closer to trial. • Also assess in the focus groupresearch how factfinders could evalu-ate your company’s use of power andchoice against the other side’s uses ofthose factors.• Some in-house counsel have effec-tively used the preparation for focusgroup research to conduct a “peerreview” with the company’s manage-ment to apprise them of the

86 ACCA Docket May 2003

May 2003 ACCA Docket 87

strengths and weaknesses of the case. The peerreview process involves gathering a panel of busi-ness decision makers to hear and evaluate thecase against the company and its defense. Thepeer review panel should include business deci-sion makers who will be directly affected by theoutcome of the lawsuit, but if possible, the panelshould also include other business people whoare not familiar with the lawsuit and/or whohave no direct vested interest in its outcome.Ideally, these “neutrals” should be the “peers” ofthe directly involved business people, peers whocan encourage open and honest evaluation of thestrengths and weaknesses of the company’s case.In-house counsel should also be a part of thepeer review process to give the business peopleinformation about the trial preparation andprocess and their own evaluation of the case. During a peer review, the panel listens to an oral

summary of each side’s case as presented by inhouse counsel, outside counsel, or both. Followingthe presentation of the cases, the panel discusseswhat they see as the strengths and weaknesses ofthe company’s case, and each panel member recom-mends what amount, if any, he or she would bewilling to settle the case for, given the argumentsheard in the peer review. The peer review process isnot intended to produce a binding decision on set-tlement or trial strategy, but it offers in-house coun-sel, outside counsel, and business decision makersalike a somewhat neutral “practice run” on whichto test the strengths and weaknesses of the com-pany’s case and, if settlement is an option, to helpdetermine an appropriate settlement range.

Minimize Anticorporate Bias at Trial• When preparing oral argument for trial with your

trial team, have them avoid initially pointing thefinger at the other side. Jurors are sensitive tosuch “negative campaigning” and can stop listen-ing before hearing all of your evidence. Rather,lay the groundwork for jurors to conclude thatthe other side’s case is weak and then lead themto draw that conclusion first.

• Use a three-part approach to the defense of yourcase at trial to create the greatest persuasiveeffect for “desensitization effect” jurors:� First, have your trial team plan the case pre-

sentation around a primary focus on what your

company did well. Such an approach is highlyeffective for two reasons. First, it takes thehigh road and positions factfinders to beingpersuaded through the unexpected. (Manyjurors expect you to complain about the otherside first and often seem to be turned off bythat approach.) Second, you and trial counselwill lead from strength with a proactiveapproach whereby you characterize your com-pany’s effective use of power and choice.

� Second, within the case presentation, use asecondary approach that can work well if han-dled in a balanced manner. Consider whereyou might admit that your company may havemade less than perfect choices within the caseevents if you can do so sincerely and in a man-ner that takes appropriate responsibility with-out admitting fault.9

For example, one helpful technique is to focusthe jury on the idea that corporations are simply thesum of the people who act on the corporations’behalf and that all people make less than perfectchoices from time to time. This approach, however,requires the testimony of a company witness of anappropriate level in the company hierarchy. For thisapproach to be effective, the jury will need to hear

88 ACCA Docket May 2003

ONLINE:

• ACCA’s committees, such as the LitigationCommittee, are excellent knowledge networks andhave listservs to join and other benefits. Contactinformation for ACCA committee chairs appears ineach issue of the ACCA Docket, or you may con-tact Staff Attorney and Committees ManagerJacqueline Windley at 202.293.4103, ext. 314, or windley@acca.com, or visit ACCA OnlineSM atwww.acca.com/networks/ecommerce.php.

• Julie S. Congdon and Patricia M. Hamill,“Managing Outside Counsel in Litigation: APrimer,” ACCA Docket 21, no. 4 (April 2003):40–57, available on ACCA OnlineSM atwww.acca.com/protected/pubs/docket/am03/primer1.php.

ON PAPER:

• AUDREY CHIN AND MARK A. PETERSON, DEEP

POCKETS, EMPTY POCKETS: WHO WINS IN COOK

COUNTY JURY TRIALS (Rand Corporation 1985).

• Michael Freedman, Twelve Really Angry Men,FORBES, Oct. 14, 2002, at 52.

• Valerie P. Hans, The Illusions and Realities ofJurors’ Treatment of Corporate Defendants, 48 DE PAUL L. REV. 327 (1998).

• VALERIE P. HANS, BUSINESS ON TRIAL: THE CIVIL

JURY AND CORPORATE RESPONSIBILITY (Yale Univ.Press 2000).

• Valerie P. Hans and William S. Lofquist, Jurors’Judgments of Business Liability in Tort Cases: Implications for the Litigation ExplosionDebate, 26 LAW & SOC’Y REV. 85–115 (1992).

• Interview by Jeffrey T. Frederick with Valerie P.Hans, Ph.D. COURT CALL (American Society ofTrial Consultants), Winter 2003, at 10.

• Robert J. MacCoun, Differential Treatment ofCorporate Defendants by Juries: AnExamination of the “Deep-pockets” Hypothesis,30 LAW & SOC’Y REV. 121 (1996).

• Michael Orey and Milo Greylin, Lawyers FindJury Pools Polluted by Anti-business Biases,WALL ST. J., Aug. 12, 2002, at B1.

• Neil Vidmar, The Performance of the AmericanCivil Jury: An Empirical Perspective, 40 ARIZ. L.REV. 849 (1998).

• Bob Van Voris, Jurors Do Not Trust Civil Litigants.Period, Nat’l L. J., Nov. 2, 1998, at A24.

If you like the resources listed here, visit ACCA'sVirtual LibrarySM on ACCA OnlineSM at www.acca.com/resources/vl.php. Our library is stocked with informa-tion provided by ACCA members and others. If youhave questions or need assistance in accessing thisinformation, please contact Staff Attorney and LegalResources Manager Karen Palmer at 202.293.4103,ext. 342, or palmer@acca.com. If you have resources,including redacted documents, that you are willing toshare, email electronic documents to ManagingAttorney Jim Merklinger at merklinger@acca.com.

From this point on . . .Explore information related to this topic.

someone that they perceive to be “in charge” admit-ting the error and taking responsibility. In addition,before adopting this approach, recognize that thecompany witness will need to be very carefully pre-pared in order to present this testimony in a way thatgets the message across without sounding as if the

corporation is merely making excuses or, perhapsworse, trying to put the blame on its employees. � If your company made some errors that fall

short of negative, consider a brief “mea culpa”on a few errors. Jurors frequently appreciate asincere acknowledgement of imperfection

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rather than a strident denial of any wrongdoingwhatsoever. Once you have made that admission,make sure that you clearly explain why thaterror does not rise to a level of negligence.

� Once your company has established (1) what itdid well and (2) where it could have chosenmore wisely, jurors will likely be more recep-tive to hearing what the other side did poorlyin its own abuses of power and choice. Do notmisconstrue this tip as meaning that youshould aggressively go after the other side.Make this section your tertiary leg of the casepresentation. Rather, devise a checklist ofmutual responsibilities for plaintiffs and defen-dants. Then argue how your company met itsresponsibilities and how plaintiffs failed tomeet theirs. See the graph below for more onthis three-part approach.

• Subtly underscore the sophistication of the otherside. Rather than having trial counsel state thatthe other side was sophisticated, introduce tojurors the evidence that they need to draw thatsame conclusion themselves.

• Be alert to particular types of jurors who aremore resistant to the “desensitization effect.” Weknow that general juror demographics alone arenot reliable predictors of how your particular

case will be decided, but we also know that jurorattitudes and experiences are important factors toconsider when selecting a jury. Findings from ourmock trial research and posttrial interviews withactual jurors have indicated that jurors with thefollowing key attitudinal sets are likely to bemore dangerous for corporate litigants than otherjurors might be:� Jurors who are shocked at the corporate

choices leading to the Enron collapse.� Jurors who believe that corporations bear more

than a 50/50 responsibility for ensuring thatthe terms of a contract are clear.

� Jurors who believe that profit motivationinherently correlates with unethical businesspractice.

� Jurors who believe that ethics should super-sede the law.

� Jurors who believe that breaches of contractcan be equated with a moral violation—which,by the way, strongly correlates with high puni-tive damages.

� Jurors who believe that the fact of a lawsuitmeans that the case against a corporation musthave some merit.

� “Status inconsistent” jurors who have achieveda higher level of education but have chosen alower status occupation.

� Jurors who have no interest in serving in amanagement capacity.

CONCLUSIONAnticorporation bias does not automatically

translate into proplaintiff verdicts because jurorsare prone to scrutinize both the plaintiff and thedefendant in their respective uses of power andchoice. Even in light of a favorable bias toward theplaintiff, there are avenues that you can pursue asthe corporate defendant to mitigate the anticorpo-rate bias. A

NOTES

1. Litigation Insights, INSIGHT, June 20, 2002.2. See AUDREY CHIN AND MARK A. PETERSON, DEEP POCK-

ETS, EMPTY POCKETS: WHO WINS IN COOK COUNTY JURY

TRIALS (Rand Corporation 1985); Valerie P. Hans, TheIllusions and Realities of Jurors’ Treatment of CorporateDefendants, 48 DE PAUL L. REV. 327 (1998); Valerie P.

May 2003 ACCA Docket 91

Hans and William S. Lofquist, Jurors’ Judgments ofBusiness Liability in Tort Cases: Implications for theLitigation Explosion Debate, 26 LAW & SOC’Y REV.85–115 (1992); Robert J. MacCoun, DifferentialTreatment of Corporate Defendants by Juries: AnExamination of the “Deep-pockets” Hypothesis, 30 LAW

& SOC’Y REV. 121 (1996); Neil Vidmar. ThePerformance of the American Civil Jury: An EmpiricalPerspective. 40 ARIZ. L. REV. 849 (1998).

3. See VALERIE P. HANS, BUSINESS ON TRIAL: THE CIVIL JURY

AND CORPORATE RESPONSIBILITY (Yale Univ. Press 2000).4. In COURT CALL, Winter 2002, at 10, the quarterly publi-

cation of the American Society of Trial Consultants,Jeffrey Frederick, Ph.D., interviews Valerie Hans, Ph.D.,about her comprehensive research. See VALERIE P. HANS,BUSINESS ON TRIAL: THE CIVIL JURY AND CORPORATE

RESPONSIBILITY (Yale Univ. Press 2000).5. Bob Van Voris, Jurors Do Not Trust Civil Litigants.

Period. NAT’L L. J., Nov. 2, 1998, at A24.

6. Michael Orey and Milo Greylin, Lawyers Find Jury PoolsPolluted by Anti-business Biases. WALL ST. J., Aug. 12,2002, at B1.

7. See Michael Freedman, Twelve Really Angry Men,FORBES, Oct. 14, 2002, at 52, for a summary of findingsfrom a survey conducted by the Minority CorporateCounsel Association.

8. For a summary of the findings of a telephone surveyconducted by the Minority Corporate CounselAssociation (“MCCA”) and DecisionQuest in September2002, see Galina Davidoff, Ph.D., National JurorPerception Survey Warns That People of Different ColorHave One Thing in Common: Distrust towardCorporations, DIVERSITY & THE BAR, Feb. 2003, avail-able on the MCCA website at www.mcca.com/site/data/magazine/coverstory/jurorperception0203.htm.

9. In certain cases, of course, it may be wise to admit liability.The approach noted above is for those cases in which youfeel that an admission of liability would not be appropriate.