Preparing company witnesses for trial: Psychological insights and practical strategies

With nuclear verdicts on the rise the stakes have never been higher for corporate defendants. From 2020 to 2023, the median nuclear verdict in the U.S. rose from $21 million to $44 million. See "Marathon Strategies, Corporate Verdicts Go Thermonuclear," 2024 Edition; see also U.S. Chamber of Commerce Institute for Legal Reform, "Nuclear Verdicts: Update on Trends Causes, and Solutions," (May 2024). The frequency of thermonuclear verdicts (jury verdicts over $100 million) is also on the rise, with 115 such verdicts from 2013 to 2022 and a staggering 27 thermonuclear verdicts in 2023 alone. Ibid. Several factors contribute to these escalating verdicts, including growing societal skepticism toward corporations and the effectiveness of plaintiffs to tap into this sentiment, reinforcing and amplifying anti-corporate narratives.

For many defense attorneys, it's difficult to accept just how deeply ingrained corporate mistrust has become. Confirmation bias - the tendency to interpret new information in ways that reinforce existing beliefs - fuels juror distrust, creating an echo chamber that validates existing anti-corporate sentiment. Therefore, it's crucial to recognize that these biases are not just hurdles, they are pervasive forces that must be actively addressed in defense strategies.

Jurors evaluate corporate integrity largely through the testimony of company witnesses. A well-prepared witness projects responsible corporate conduct, while an unprepared one risks reinforcing unattainable safety expectations that increase liability and can lead to nuclear verdicts. Effective witness preparation requires more than legal strategy - it demands an understanding of psychology and juror perception. This article explores key psychological drivers of jury decision-making and offers practical strategies to help corporate witnesses present a credible and compelling defense.

Counteracting juror bias: Leveraging the availability heuristic

Jurors rely on heuristics - mental shortcuts that shape their decision-making. In the context of litigation, several key biases influence how jurors perceive corporations:

 Confirmation bias: Jurors who already distrust corporations will look for evidence that confirms their skepticism, making it crucial to present concrete examples of responsible corporate conduct.

 Negativity bias: Negative information, such as one product failure, is more impactful than hundreds of positive safety measures.

 Hindsight bias: Jurors overestimate how predictable an incident was after the fact. Without proper framing, jurors are likely to believe the company should have foreseen and prevented the incident.

It is imperative that corporate witnesses learn how to counteract these biases effectively rather than inadvertently reinforce them. Too often, corporate witnesses fall into the trap of making overly broad, idealistic statements such as:

"Customer safety is our highest priority."

"We take all precautions to make sure our products are safe."

"We do everything we can to prevent injuries."

These superlative statements create an unattainable standard, making them particularly problematic. Testimony suggesting an absolute ethical responsibility can trigger the "anchoring effect," causing jurors to unconsciously measure the company's actions against an idealized notion of safety rather than industry norms or reasonable expectations. Words like "always" and "everything" imply a level of perfection no company can achieve. Plaintiff attorneys strategically elicit such statements and then capitalize on their impracticality by highlighting any instance where the company fell short of this absolute standard. Additionally, terms like "safe" and "secure" are inherently subjective, creating ambiguity that plaintiff attorneys can readily exploit to bolster jurors' anti-corporate mindset.

Defense attorneys often attempt to counter opposing counsel's efforts to anchor jurors to unrealistic safety standards by eliciting testimony about the company's safety-driven philosophy. However, this strategy can backfire, as it provides plaintiff attorneys with opportunities to highlight any perceived shortcomings. The more effective approach is to prepare corporate witnesses to deliver fact-based testimony that jurors can visualize and remember. This strategy leverages the availability heuristic - a well-documented psychological principle in which people assess situations based on readily recalled examples. By focusing on specific, concrete actions rather than abstract assurances, defense counsel can shift jurors' attention to tangible evidence of the company's responsible conduct. This framework must be employed well before trial (preferably well before deposition) and reinforced throughout the litigation.

Examples:

Weak: "We always make safety our top priority when designing our products."

Strong: "Before this product was released, it went through over 100,000 hours of durability testing, including drop tests, extreme temperature simulations, and stress endurance trials."

Weak: "We follow all industry regulations."

Strong: "We comply with U.S. Consumer Product Safety Commission guidelines and conduct independent third-party safety audits annually to confirm compliance. For this product, we exceeded federal flammability standards by 20%."

Jurors are more likely to remember concrete examples of responsible corporate conduct rather than vague assertions of corporate integrity. Instead of relying on broad statements, corporate witnesses should focus on specific, verifiable actions that clearly illustrate the company's commitment to safety.   

Managing anchoring bias: Reframing the narrative

Opposing counsel will often introduce a number, phrase or assumption with confidence, expecting the witness to accept it without question. Once a witness concedes - even slightly - it becomes difficult to escape that frame. The key to effective testimony is recognizing these anchoring attempts and reframing the response. Instead of reacting impulsively, witnesses must learn to challenge misleading premises with deliberate, well-structured answers.

Example:

Opposing Counsel: "Considering your company made $2 billion in profits last year, you could have easily afforded a recall, right?"

Weak Response: "Uh, well, yes, we are a profitable company, but..."

Strong Response: "Profitability isn't how safety decisions are made. Recalls are based on scientific data and regulatory guidance, not financial metrics. The scientific data showed..."

The weak response validates opposing counsel's anchor and suggests profit-driven negligence, while the strong response disrupts the anchor and shifts the focus to the company's evidence-based decision-making.

Rather than engaging in abstract hypotheticals or accepting plaintiff counsel's false premises, a well-prepared witness consistently redirects to specific company conduct and clear fact-based decision-making. By recognizing and neutralizing anchoring attempts, corporate witnesses can avoid rhetorical traps and refocus the discussion on memorable examples of good company conduct.

Overcoming the illusion of transparency: Controlling nonverbal cues

A critical yet often overlooked aspect of witness preparation is the impact of nonverbal communication on juror perceptions. Many corporate witnesses, particularly those unfamiliar with testifying, fall prey to the illusion of transparency - the mistaken belief that their true thoughts and emotions are obvious to others. Psychological research demonstrates that people tend to overestimate how much others perceive their internal state. As a result, while a witness may feel nervous, uncertain, or frustrated, jurors may not recognize these emotions. Instead, they may misinterpret them as signs of evasiveness or dishonesty, even though the witness is telling the truth.

To mitigate this risk, counsel should work with corporate witnesses to project confidence through deliberate nonverbal communication. Sitting upright, keeping hands relaxed and visible, and maintaining an open stance convey confidence and credibility, while crossed arms, hunched shoulders, or fidgeting can signal discomfort or defensiveness. Eye contact and tone are also important factors. A steady, natural gaze fosters trust, whereas darting eyes or looking down may suggest uncertainty or concealment. Similarly, a steady, measured voice signals authority and composure, while a shaky or defensive tone can undermine believability.

Psychological studies show that repeated exposure to stressful situations reduces anxiety over time. By reinforcing these techniques through structured preparation, defense attorneys can help corporate witnesses overcome the illusion of transparency, manage their nonverbal cues, and project confidence and credibility to the jury.

Conclusion

Understanding psychological biases that influence juror decision-making is not a theoretical exercise, it is a strategic necessity in trial preparation. In today's litigation climate, pervasive anti-corporate skepticism poses a serious challenge, and poorly prepared corporate witnesses risk reinforcing these biases and increasing the likelihood of emotion-driven, oversized verdicts. By incorporating psychological principles into witness preparation, defense attorneys can effectively neutralize opposing counsel's tactics, enhance witness credibility, and shift jurors' focus away from preconceived notions of corporate wrongdoing. A confident, well-prepared corporate witness does more than simply answer questions - they actively counteract implicit biases, reframe the narrative, and demonstrate corporate responsibility and sound decision-making. This can be the difference between a fair verdict and a catastrophic jury award.