There are many lessons learned from the five week trial I just finished. One of them was re-enforcement of the principle that a trial is not a battle of logic, but rather one of impression. We now know that well over 90% of our decision process is done at a level we are not even conscious about. Gladwell’s book Blink is one of the better recent books on this subject. What we know is that people’s opinion process is driven by two primary factors: significant life experiences and basic motivations such as survival and reproduction. When a trial is viewed through this perspective we see that the overall impression created is filtered through this process to a decision.
In the trial the issue of the defendant corporations conduct, motives and intentions were critical to the question of punitive conduct issues and general damages. Contrasting witnesses and evidence was offered. On the one hand key senior management people were presented by the corporate defense lawyers whose role was to show what nice people they were and therefore the corporation had to be as well. I strongly suspect each one of them had gone to "witness school" before testifying. They talked to the jury, smiled a lot and were calm rational people. The senior management witness was their star. He had refused to concede anything, even the obvious and admitted, at deposition. At trial, he was as personable a witness as you could find. He smiled, charmed the jury and otherwise gave the corporation actions the best possible spin.However, the CEO was another matter. His role was to tell the jury they admit they were responsible, were very sorry and just wanted to do the reasonable thing. He did that on direct, but not long into cross examination began to unravel. He wasn’t used to being challenged, hadn’t been prepared for the assault and wasn’t familiar with the incriminating documents. He quickly became defensive, then angry and then confrontational. The corporate lawyers left the CEO but brought the smiling corporate staff for final argument, sitting them in the front row. The corporate lawyer told the jury that these nice people were not malicious or people who would do punitive acts and they were the corporation.
So, what impression did the jury carry away from these corporate witnesses? They concluded that the top man in the corporation, the person who had the final say so, and the one who made all the final decisions was the correct face of the corporation. They didn’t like him and they didn’t like what he represented as a corporate representative. The buck stopped with him and not the corporate underlings who were brought in to put the best possible face on the corporations conduct.
Trials are battles of impression and not logic.