3 Dirty Tricks Corporations Use to Avoid Accountability in Court
There is nothing large corporations fear more than the American jury.
Unlike lawmakers, whose loyalty can be bought through large campaign contributions, it is a crime to try to bribe any of the twelve citizens in the jury box. Contrary to what you’ve seen in movies, lawyers willing to represent even the most morally bankrupt corporations are unlikely to risk jail or losing their own law license to approach a juror with money, especially since that juror has the power to immediately report the bribe to the judge.
That’s the good news about the jury system. The bad news is that there are all kinds of “legal” ways in which corporations try to either avoid facing a jury at all or try to avoid justice.
Dirty Trick No. 1 – Avoiding the Jury Altogether
During the Reagan years in 1980-1988, a group of young conservative lawyers began trying to develop strategies to protect corporate America from being held accountable by 12 ordinary people.
This time period gave birth to the myth of the “litigation crisis” and the nationwide push for caps on damages and other “wrongdoers-don’t-pay” laws (aka “Tort reform”). Although the anti-lawsuit campaign was successful in some places, the success was incomplete. No matter how much publicity surrounded “frivolous lawsuits,” voters were reluctant to give up their own personal right to a jury trial and to hold corporate polluters, manufacturers of dangerous products and other corporate wrongdoers fully responsible for the death and destruction caused.
Some voters realized that caps on damages did not stop the “frivolous,” small damages claims that could be settled within the cap, but prevented the most seriously injured citizens from recovering the full damages for a death or injury.
What was a corporate lawyer to do to protect the big business client that paid his bills?
The solution was the arbitration clause.
The arbitration clause is the little box you now check every time you buy anything on line, whether a computer, a cell phone or almost any online product. By checking that box, you agree to give up your right to jury trial for anything related to the product you are buying–whether your claim is to get your money back because the product didn’t work, or if the malfunctioning heater you bought burned down your house and killed your whole family.
Hot for the newest iPhone, most of us never click through to read the pages of fine print to see that you are now required to present any claim you have against the company to an arbitrator or panel of arbitrators, often people who have some connection to the industry against whom you are making a claim.
Who were among the conservative leaders who helped come up with the legal argument that the constitutionally guaranteed right to a jury trial in the Seventh Amendment could be trumped by the constitutional right to contract (U.S. Constitution, Art. I, section 10, clause 1) through an agreement to an arbitration clause?
Among those conservative voices were two young lawyers who were members of the Reagan Justice Department, John Roberts and Samuel Alito, and a University of Chicago law professor named Antonin Scalia.
After those three lawyers became part of the Potomac Nine, is it any surprise that the current United States Supreme Court has yet to find an arbitration clause that does not supersede the right to jury trial? It does not matter that the parties to the contract–corporation vs. lone citizens–have unequal bargaining power or legal staff, that the poor consumer would have to read through pages and pages of legal gobbledygook to find the fine print arbitration clause or that the designated arbitrators are in league with the industry, this Supreme Court has said the little box you checked online provides greater protection to the corporation that right your right to a jury trial.
This is why, when the call goes out online for consumers to protest that a corporation is adding an arbitration clause to all its contracts, you should take the time to add your voice to those protesting them taking away your right to a jury of your peers.
Dirty Trick No. 2: Hiding the Evidence
If you have avoided signing an arbitration clause and get to file your lawsuit, most of the evidence you need to pursue your case is in the hands (or computer files) of the corporation. The corporation has control over things like:
the reports or testing records showing the gas tank of the Pinto in the back of the vehicle might cause a fiery conflagration in a rear-end collision, or that an airbag might unleash such force it would kill a driver or passenger
the letters from attorneys, claims and lawsuits showing that some of the company’s e-cigarettes have been exploding in the mouths of smokers
the videotape of the hospital waiting room where, over the course of an hour, a client’s mother approached the desk three times to try to get help for her son, who was having increasing difficulty breathing
Although the court system has discovery rules that theoretically allow lawyers to request and obtain corporate documents, corporations use their high paid army of lawyers to object to producing almost everything you request. It usually takes a dogged lawyer to file multiple motions to compel before a judge orders production of the information you need. From the date you request a piece of information you need until this order is finally issued often takes a year or more. Once you have finally won and obtained this order, what happens?
The corporation hides the evidence in a massive document dump.
In the old days, the corporation would empty all the documents out of its files, throw them all up in the air, stuff the jumbled mess back into boxes, then allow you into the warehouse where there were boxes stacked to the rafters. Only the most motivated of lawyers and their staffs could afford to spend the weeks or months it took to go through all the documents to find the smoking guns buried somewhere in the middle of the piles.
The digital age has made this easier to do. All the documents are scanned in random order and now, you get a hard drive or disc with thousands or millions of documents and no index. Your lawyer now has the choice of reviewing each individual document or trying to come up with a key word search that will hopefully locate the smoking gun e-mail or test result you need to prove the case.
Lawyering against corporations and their army of attorney is not for sissies.
Dirty Trick No. 3: The Shadow Jury
Once you get to trial, in addition to the phalanx of attorneys on the other side of the courtroom, the corporation may use a shadow jury.
A shadow jury is made up of individuals from the community who mirror the demographics of the real jury that has been selected to hear the case. Unlike the real jurors, who usually get only a small per diem of less than $50 per day, the shadow jurors are hired and paid $150 a day or more to come and sit in the back of the courtroom and listen to the entire trial.
In order not to skew their perspective, the shadow jury is not told which side has hired them. Because of the huge expense, if you are ever on a shadow jury, it is probably the corporation or its insurance company that hired you.
After each day of trial, the shadow jury meets with a jury consultant to give their impressions of the witnesses, evidence and attorneys. They are asked which way they are leaning and eventually, are asked what amount and kids of monetary damages they want to award.
After debriefing the shadow jury, the jury consultant meets with the defense lawyers and tells them how to tweak the witnesses or evidence, what arguments are working and what arguments are falling flat and which way the jury is leaning.
These insights from what is a real-time focus group gives the corporation and insurance company a tremendous advantage at trial. If there is an offer to settle pending and the insurance company learns that the shadow jury hates the plaintiff’s claim, the insurance company may withdraw the offer. Conversely, if the corporation learns that the shadow jury is turning against their case, they can make an offer to settle in the middle of trial.
Without the aid of a shadow jury, a lone citizen will only know how the jury is feeling when it returns a verdict. Until then, the poor citizen is left to try and read the faces of the jurors, which are often as inscrutable as tea leaves.