If companies are sued, they need to understand their potential jurors, consultant Ken Broda-Bahm told the Salt Lake Society for Human Resource Management at a lunch meeting Tuesday.
He projected a map of all the counties in the United States, and the map was shaded red and blue to represent the political persuasions of residents in different regions. It was a four-year-old map, dating back to the presidential race when John Kerry challenged President Bush, when Americans were described as living in conservative "red states" or liberal "blue states."
A jury consultant, Broda-Bahm told the human resource managers that if their company is sued, they need to study the map to get a glimpse of their potential jury: Jurors who live in blue counties will be more likely to sympathize with an employee suing a company for race or sexual orientation discrimination. Jurors in red counties don't believe in such discrimination and tend to favor companies.
Broda-Bahm and Shelley Spiecker senior litigation consultants for Persuasion Strategies, a jury behavior service of Holland & Hart LLP, a law firm with offices in Salt Lake City spoke about their research on jury behavior, and how human-resources personnel can help prevent a lawsuit or help sway a jury if sued.
Broda-Bahm warned that juries are more complex than a simple "red state/blue state" analogy. "Every trial strategy is going to be based on your own case and your own venue."
But most jurors are suspicious of large corporations before trials even begin, which can prevent fair trials for companies sued by current and former employees. Eighty-one percent of jurors surveyed by Persuasion Strategies, based in Denver, believed a company would lie if it could benefit financially.
Broda-Bahm called it an "anti-corporate bias."
Juries also still respect the rule of law. Human resources managers must show how their company's actions don't violate the law and are consistent over time.
To prevent litigation, companies need to apologize for mistakes against employees, Spiecker said. A study in the University of Michigan health system found malpractice lawsuits dropped by 50 percent when doctors were trained to apologize for mistakes.
"I think it disarms people," Danny Brand of the Marlin Co., an employee-communication services company, said about apologizing. "If you take responsibility, you have control."
However hard human resources managers may work to avoid lawsuits, Salt Lake attorney Ed Brass said that people have the right to seek redress through the courts."In our state constitution, there's certainly language that gives people access to the courts," he said.