Every year, Dictionary.com chooses a word of the year based on the current cultural climate and increased searches on its website. In 2018, the website chose the word ‘misinformation,’ to highlight increasing concerns regarding the spread of misleading or false information in the public sphere.
When coupled with public opinion polls, the prominence of this term highlights a trend both in the United States and globally: People are trusting others less. And this lack of trust extends into many facets of everyday life. Trust in government is down. Trust in media is down.
And trust in business is down. According to the Edelman Trust Barometer [PDF], only 68% of people globally trust business. Further, Pew Research has found that 53% of Americans believe large corporations have a negative impact on the way things are run in the United States. Meanwhile, the public’s expectations for corporations and business executives have increased, with 76% of people globally saying that CEOs should take the lead in creating positive change, such as fighting for equal wages.
So as trust in corporations dwindles and expectations for their behavior increase, what does this mean for a corporate representative on the witness stand?
The Importance of a Corporate Representative
Selecting the right corporate representative can have a significant impact on the outcome of your case. The representative effectively becomes the ‘face’ of the corporation, and anything he or she does or says reflects on the company and how jurors perceive it.
With the steady eroding of public trust in corporations, this is truer than ever. When jurors come into the courtroom with pre-existing distrust, they will be monitoring your representative very closely for any signs of dishonesty or evasiveness. To put this in perspective, according to a 2018 Gallup poll, 32% of individuals rate the honesty and ethics of business executives – one of the most likely corporate representatives – as low or very low. So not only are jurors watching for dishonesty, nearly a third of them expect it. And if jurors detect dishonesty in a corporate rep, they’ll perceive the corporation as dishonest, too.
You may ask yourself, if a representative is judged so closely by jurors, do I need to have one at all? According to Thimsen, McGorty, and Bornstein (2011), yes, it is generally better to have someone in court as a representative of the corporation, particularly if your corporation is the defendant. In their study, jurors tended to perceive companies more positively when they had a representative at trial. Further, when a representative was absent, jurors speculated about why this was – including whether the company was attempting to hide something by not having a representative.1
So if having a corporate representative in court is preferable,2 but jurors will be making credibility judgments about that representative, the question becomes: What can you do to help build jurors’ trust in your rep?
Building Trust with Corporate Reps
Beyond selecting the right corporate representative, preparing him or her for trial is the second-most important step. Here are some useful pointers:
- Be sure the rep realizes that, at every point in time, at least one of the jurors is likely to be watching. Therefore, it’s important to keep facial expressions and body language under control. Oftentimes, corporate representatives think they are being helpful when they scoff at untruths or shake their head in disagreement. However, jurors tell us this usually comes off as over-acting and disingenuous (i.e., “thou doth protest too much”) – even when it’s not. A representative who makes good eye contact and remains calm in the face of criticism exudes confidence that the corporation acted appropriately.
- Being on one’s best behavior extends beyond the courtroom. As with attorneys, corporate reps should be aware of impressions created in public spaces where they may cross paths with jurors, e.g., the parking lot, elevators, bathrooms, and hallways. Someone who presents well in the courtroom but is viewed as rude, upset, or nervous elsewhere will only reinforce jurors’ preconceptions of dishonesty among those in business. Jurors have told us they remember which trial team members hold the elevator door for them and which do not. Your corporate rep is “on” at all times, inside and outside the courtroom.
- No one wants to be sued, but representatives need to show they are proud to be there on behalf of the corporation and believe the case is important to defend the company’s integrity and clear it of wrongdoing. Representatives who show up late, miss several days of trial, or are constantly looking at the clock (or worse, checking a cell phone) send the message that the lawsuit isn’t worth their time. From a juror’s perspective, it can appear that the person thinks his or her time is more valuable than the jurors’. Be sure that your rep is someone who takes the case seriously and will be attentive and engaged throughout the trial.
- When the representative is deposed as the person most knowledgeable about the corporation, substantial preparation is a must. Not only should the person be able to quickly recognize and explain the corporate documents and company policies, but he or she needs to be able to do so succinctly and confidently. For the former, a session with counsel and consultants in theme development can help witnesses hone their messages into pithy statements and phrases that will stick with a jury. For the latter, the more a witness practices both direct and cross-examination, the more he or she will be confident in the responses – and the more confident in the response, the more honest he or she will appear to the jury. Therefore, we strongly recommend conducting repeated mock examinations so that witnesses can learn to respond to the difficult questions without skipping a beat. Videotaping the sessions can also help witnesses get comfortable responding before a camera, and allows them an opportunity to observe their nonverbal behaviors and make corrections to things that may undermine their credibility.
- When it comes to the content of the testimony, jurors expect more from corporations today than in previous eras. While making a profit is the goal of any business, a corporate representative needs to display additional motives beyond profit for why the company is in business. Typically, pride in delivering a quality product or service is a good place to start. After all, having satisfied customers who will continue to patronize the business and refer it to others is the best way to ensure profitability. The rep might also have a personal story for how he or she got into a particular line of work. To the extent possible, try to draw this out during your examination.
- Lastly, your corporate representative needs to show the company took prompt and serious action when something went wrong. Most jurors have an “actions speak louder than words” mentality toward corporate acts, so showing your jurors just what steps the representative and the company took to solve the problem creates a positive perception of the business.
Some jurors with negative preconceptions of corporations may never be convinced, but the majority of jurors are open to the concept that not all corporations are bad or dishonest. A well-prepared corporate representative can help demonstrate that your client is the exception to the “rule.”
For further assistance with preparing your corporate rep for trial or deposition, consider working with one of our communications experts.
By: Katrina Cook, Ph.D. – Consultant
1 Thimsen, S., McGorty, E. K., & Bornstein, B. H. (2011). Putting a Face on the Corporate Defendant. Jury Expert, 23, 36.
2 However, there’s one time you don’t want your corporate rep in the room: during voir dire.