Over the years, we have received questions about how to select a corporate representative to sit at counsel table during trial. All eyes are on the corporate representative. He or she represents the company – everything they do and say reflects back on the culture, philosophy, values and mission of the company. In post-verdict interviews, trial jurors have told us their different reactions to corporate representatives and how those attributions have impacted their views of the company and the case. In this issue of Insights, we summarize the key criteria that jurors have said they focus on when evaluating a corporate representative. We hope it will help to inform your future decisions regarding corporate representatives.
Characteristics Identified by Jurors
Jurors have told us that they watch corporate representatives from the moment they park their cars, through discussions with their attorneys in the hallway, to their time sitting at counsel table. Panelists scrutinize a corporate representative’s behavior to determine if his heart, mind and testimony will align with the company. Jurors tell us they expect representatives to exude the values of their companies. For example, jurors quickly notice if a company representative is doodling, and they tend to draw negative inferences from that behavior. Based on our research, the critical behavioral and verbal characteristics for any company representative are highlighted below.
- Look Engaged. Jurors have told us in our post-verdict interviews that they watch the corporate representative at counsel table. Many have told us it reflects negatively on the company when the representative appears disengaged. For instance, they are not taking notes, but instead are doodling, looking down, on their Blackberry/Smartphone or having trouble staying awake. Moreover, if you have someone who is worried about their sales numbers or other work, it will be difficult for them to stay focused and engaged.
|Recommendation: It is critical for corporate representatives to be invested in the content of the trial. To appear engaged, they should watch and listen to the proceedings and provide an occasional note to counsel.|
- Avoid Inappropriate Nonverbals. If your corporate representative shakes her head, makes an audible noise or makes a facial expression in response to testimony against your case, her behavior won’t help your case for the most part, and it can undercut her own credibility. However, remaining completely stoic is another extreme to avoid.
|Recommendation: Your corporate representative should strike a balance between keeping a poker face for testimony that isn’t complimentary to your case and remaining professional and engaged through her facial expressions.|
- Sound Compassionate. If the corporate representative is also a testifying witness, the manner and tone of her voice will reflect on the values of the company. If she fights back or shows little to no compassion, it is likely that behavior will negatively affect jurors’ attributions of the company. Therefore, a corporate representative takes on the higher duty to exemplify the values, mission and philosophy of the company.
|Recommendation: The corporate representative should show, for example, humility, strength and compassion in a non-argumentative manner. This demeanor will speak volumes to jurors and no doubt impact their assessments of company’s ethics and values.|
- Don’t cover your face. A corporate representative in one of our recent cases had a habit of covering his mouth while listening to testimony. In exit interviews, trial jurors told us this behavior gave a negative impression of the representative and his company. They thought it meant the representative was “afraid” to show his reaction to the testimony because he didn’t believe in his company’s case. This example illustrates that you can’t anticipate how jurors will interpret the slightest behaviors, but you will be better off if you educate yourself on what behaviors may draw their attention.
- Enhance Credibility. As noted in our Witness Characteristics Insights (June 2009, Issue #13), it is important for a company witness to maintain his credibility by providing testimony that, in the words of one juror, “gives the good with the bad.” If a corporate representative only provides a rosy picture of the company and its policies, jurors will view such testimony as biased since no company is perfect. Consequently, jurors may believe the representative fears he will lose his job if he tells “the truth.”
|Recommendation: To help bolster a corporate representative’s credibility, he needs to concede some small point that is not flattering to the company (e.g., Yes, there is racial tension on the docks, but we respond to all complaints in a timely manner, as we did in this case”). Jurors will respect the representative’s honesty and give greater weight to his testimony.|
Questions to Consider When Identifying Your Corporate Representative
When you’re seeking the best corporate representative candidate, take into consideration jurors’ feedback as reviewed above by asking yourself these questions:
- Will she be called to testify?
- Are you concerned he may be called to testify? Why are you concerned? Do you believe that his own personal agenda may appear to be at odds with the company’s values?
- What position does she hold? Does her presence throughout trial convey the company is giving this the appropriate attention?
- Will he be able to focus on the trial or will he be worried about their sales numbers or other aspects of the business?
- Will she be invested in the content of the trial? That is, is she a retired employee? Or an employee/partner that is being let go in a month?