Product Liability Cases: Earning Jurors’ Trust

The plaintiffs in a case alleged that a chemical company—the product manufacturer—had failed to adequately warn its customers of its product’s risks. The manufacturer’s customers were huge oil companies who were obviously sophisticated and who were themselves minor manufacturers of the product at issue. They clearly didn’t need to be warned about the risks of the product.

If you were defending the product manufacturer in this case, which of the following strategies do you believe would be more effective with a jury?

Strategy A: The manufacturer should argue the legal limitations of its duty to warn and then emphasize the sophistication of its customers.

Strategy B: The manufacturer should point out that it warned its customers even though they were sophisticated and it wasn’t legally required to do so.

In a mock trial of the case, the product manufacturer chose to adopt Strategy A; it defended itself by focusing heavily on the legal limitations of its duty to warn and on the sophistication of its customers: other large companies in the oil and gas industry. But was this strategy the right choice?

The simple answer is no. Strategy A was an unequivocal failure. Despite the company’s limited legal duties and the customers’ obvious sophistication, many surrogate jurors rejected the company’s attempt to highlight the limitations of its duty to warn and the sophistication of its customers. In fact, most surrogate jurors reached a verdict against the manufacturer. When interviewed, many surrogate jurors said they believed the manufacturer should have to warn its customers, even when its customers were highly sophisticated.

If you chose Strategy B, credit yourself with some evolved thinking. Jurors wanted the defendant manufacturer to demonstrate that it took product safety seriously—in this case, by warning even sophisticated users. Fortunately for the company, it had chosen to provide warnings to its customers—even though it was not technically required to do so—and thus at trial it could earn jurors’ trust by demonstrating that it had provided these warnings. This simple change in message (from arguing that the company wasn’t legally required to warn its customers to pointing out that it had warned anyway) dramatically changed jurors’ perceptions of the company and the verdict they returned. The company prevailed at trial because it found a way to earn jurors’ trust.

Persuading today’s jurors is all about earning their trust, rather than expecting or demanding it.

This is the first post in EDGE’s “Earning Jurors’ Trust” series. In our next few posts, we’ll examine ways manufacturer defendants can earn jurors’ trust at trial.

What do you do to earn jurors’ trust at trial?