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When are jurors more apt to blame the ‘rogue employee’ than the corporation?

Monday, January 9, 2012
posted by Douglas Keene

This past year, we’ve been intrigued several times to have mock jurors give large corporations a pass and instead place blame on individual employees. While they, in every case, understood that corporations are responsible for the behavior of their employees, they wanted to make it clear they did not blame the company. In a sense, they sympathized with the company for being responsible for a reckless maniac in their workforce.  Actual (and exemplary) damages were lower. We’ve watched it happen with major banks, oil and gas companies, high-tech companies, and manufacturers. If the conduct of the employee can be disconnected from the corporate culture, the impact is mitigated.

Mock jurors are not naive. One recent two-day exploratory project resulted in memorable quotes from two older (salty Texan) female jurors:

Look. We’re [both sides in the conflict] all whores. And we all know we’re all whores. And every single one of us came to the party.”

Oh, please. They’re all filthy from playing in an ethical pigpen and now they’re whining because they didn’t get kissed before they got screwed?

It is as though there is a corporate variation on the reaction we often see in family law cases where jurors throw up their hands and say “a pox on both your houses”. We never rely on this happening–but when it happens, teasing out the dynamics that result in that happy outcome for the defendants is always intriguing. And when our client is the plaintiff, that dynamic analysis is even more important.  And–‘research to the rescue’–we have evidence that our insight has a lofty foundation. An explanation with 6-syllable words.

Researchers were curious about when people would be more likely to blame bad behavior on the group rather than on individual members. They explored the perception of a “group mind” (i.e., group members simply follow directives from above) and “individual mind” (i.e., group members make up their own minds). They also looked at cohesion of the group and had some very simple but effective animations to illustrate a high cohesion group [of fish] and a low cohesion group [of fish].

Their findings were intriguing:

The more people judge a group to have a mind, the less they judge a member of that group to have a mind and vice versa. Attributing more mind to a group is linked to judging the group–and its members–to be more responsible for the group’s collective actions.”

In other words, when people see the group (whether it be a corporation, a professional sports team, a collection of professionals, or a cult) as highly cohesive–they will see the individual member of that group as thinking less for themselves and behaving more like lemmings in response to group directives. And they will blame the group “mind” rather than the individual employees–who, after all, are only responding to directives.

If, conversely, they see the group (again, whether it be a corporation, a professional sports team, a collection of professionals, or a cult) as not cohesive, they will focus more on the ‘rogues’ (thinking and acting on their own) rather than blaming the entire group.

The applications to litigation are straight-forward.

If you are defending, you want to show low cohesion in your client’s organization. This will, based on this research, result in juror’s blaming the ‘rogue’ employees and likely in reducing damages–both actual and punitive. The ideal way of achieving this is through positive values, e.g., a) the employee was granted independence, b) based on trust, that they would c) uphold the ethical standards of the corporation.

If you are plaintiff, you want to show indications of high cohesion which will result in jurors having more tendency to blame the group and likely increase damages. Dismiss the corporate vilification of the employee as CYA, as throwing the worker under the bus, and describe how warmly that employee was treated as long as they were making money for their employer.

Don’t just assume it will happen–but build these factors into your case presentation so that, if it does, jurors supporting your case are prepared to support you in deliberations.

Waytz, A., & Young, L. (2011). The Group-Member Mind Trade-Off: Attributing Mind to Groups Versus Group Members Psychological Science DOI: 10.1177/0956797611423546


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