Corporate Defense: Laughter as a "Defense" Mechanism
A lighthearted article in Legal Times by Michael D. Jones of Kirkland & Ellis, “When Faced With an Angry Jury, Laughter May Be the Best Defense,” acknowledges that this era of anger over Wall Street bailouts and rampant corporate greed or fraud is an especially bad one for counsel who defend corporations. The author offers a potential answer to juries’ outrage—laughter. The article notes the an anti-business coverage in the news media and a backlash by juries, citing a February verdict against Novartis in Alabama—a notorious pro-corporate state—for $78.4 million, including $50 million in punitive damages, for overcharging Medicare for prescription drugs.
The article cites a 2004 study which found that angry or irate jurors were the “least influenced” by the defense’s case, because such jurors tend to jump to conclusions and act on them. Such angry jurors are less likely to favor the less sympathetic party or the party with more nuanced arguments—which is frequently the corporate defendant. It continues to note that traditional assumptions regarding jurors may not apply in today’s anti-corporate climate, and that white-collar workers may be just as angry as blue-collar workers. In view of this reality, counsel with corporate clients must seek to diffuse or redirect this anger.
The author concludes that attorneys defending corporations should consider using trial tactics which include humor and emotional redirection. The American Psychological Association says that humor is a mechanism to control anger. The author notes that it is difficult for people to be angry and to laugh at the same time. Also, self-deprecating references by counsel force jurors to acknowledge counsel as a human being and in turn can generate more goodwill for one’s client
However, counsel considering injecting humor into a trial have to be careful that it does not backfire. Humor at the expense of a litigant or witness may cause the jury to sympathize with the opposing party. Timing is also critical, and joking during serious moments can have serious consequences.
The article also advocates emotional redirection techniques, such as persuading a jury which is determined to help a victim that there is more than one victim in the case. It concludes that in this time of anti-corporate anger, attorneys need to develop trial strategies for dealing with anger—advice not to be taken lightly.
