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Huge damages and playground logic

Friday, May 6, 2011
posted by Douglas Keene

“It isn’t fair” is a cry we hear often from our playground age children emerging from a conflict. Oddly enough, it’s a refrain we often hear from jurors in high dollar disputes as well. We have been trying to share more of what we see and hear from mock jurors as we do pre-trial research. Gathering insight from small group research (focus groups and mock trials) is something we do frequently, and that work is heavily informed by the literature you read about routinely here on our blog.

One of the things we learned about 8 years ago when we moved from mainly working on personal injury suits to a focus on commercial and patent litigation is that the higher you go up the damages continuum, the more simple truths resonate. The life experiences and simple values of mock jurors become increasingly important as the dollar figures become increasingly tough to relate to by any ‘normal’ person.  It could be that the facts are so difficult for most people to relate to, that jurors evaluate the cases based on broad principles, rather than fact nuances.

A few years ago, we did a mock trial on an IP case where a smaller high-tech company (we’ll call them David) was suing a huge high-tech company (and you know we’ll call them Goliath) for ruining their business. In this instance we were assisting Goliath. What we found was really interesting.

Early on, jurors were asked who among them tended to ‘automatically root for the underdog’. Of the 8 jurors who acknowledged this tendency, seven were ultimately plaintiff jurors. In our report to the clients we wrote:

Only one other attitudinal question differentiated plaintiff and defense jurors; the question is one of perceived fairness. All defense jurors thought the world was “not fair”. All plaintiff jurors thought it was. The predominant undercurrent in plaintiff jurors’ responses throughout their written questionnaires is one of ‘Goliath’ not having been “fair”. Defense jurors, on the other hand, talked about ‘Goliath’ not being “nice” or “not communicating well” but focused on the right of any business to protect their intellectual property. For defense jurors therefore, the actions of ‘Goliath’ might not be right or moral but they were not illegal. For plaintiff jurors, the actions of ‘Goliath’ were unfair and caused righteous indignation as “the world should be fair”.

While most cases do not divide this neatly into plaintiff or defense juror orientations, it is intriguing when they do.  Even in cases with huge damage models, playground values (make it fair) predominate for some jurors.  In this case, while we were able to identify plaintiff and defense jurors relatively easily, both groups had sharp words for both ‘David’ and ‘Goliath’.  The difference was, Defense jurors accept the conduct as regrettable but inevitable, while Plaintiff jurors viewed it as reprehensible.  We see this sort of reaction a lot. Jurors choose between the lesser of two bad choices as they deliberate.

Here are some of their comments from that research project:

Remarks aimed at ‘David’:

Consider a more flexible parts/supply business model. Nice try on the patented part but your hand was caught in the cookie jar. Please prep and promo an excellent ethics policy.

Your business model was needlessly fragile. With a single point of failure for parts supply, you exposed your company and employees to an inevitable train wreck. In addition, your ethics leave much to be desired. In many ways, they helped to create this situation.

I empathize with what you’re trying to accomplish in your lawsuit but do not intimidate a major corporation without making sure you are completely in the right. You cannot have any black marks against you before starting lawsuits. If so, best of luck to you. I say this because I strongly believe if you are in the right, you should be able to stand up for yourself no matter what you’re up against.

I feel bad for you as a small business in seeing the horrible way Goliath handled their issue with David as a competitor and violator of their patents but they made their decisions based on credible evidence of actions by you and others that truly intended to violate patented parts.

You stood up to big business but next time have more ethics and understanding of patents and business practices.

Remarks aimed at ‘Goliath’:

It was poor and in part damaging to other members of your industry to promote and implement your policy without a phase-in period. Get better communication protocols and effectiveness in-house. Prepare an in-house protocol for development and implementation of all policies (including for processes with outside customers).

‘Goliath’ helped create this little fiasco through poor external communication and by not creating a roll-out plan internally. Your approach seemed arrogant and even left your end customers in difficult spots. Send your management to Communication school and learn to serve your customers first.

Clearly you have some personnel issues. Perhaps an ethics in business course, company-wide. And maybe brush up on communication skills.

Although I think the implementation of your parts policy was half-ass, I do respect the need to protect your IP.

You opened yourself up for this one. Prior to implementing any business policy it should be clearly written and communicated to employees first. Courtesy would dictate you give your purchasers advanced warning to cutting them off from supply to said parts. Why didn’t you see the business potential in front of you?


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