Is It Even Possible to Persuade a Biased Juror?

If you recently debated someone who adamantly supported a different candidate than you in the last presidential election, you have good reason to wonder whether there is hope of persuading someone biased against your position in a theft of trade secrets case. Fortunately, jury persuasion happens all the time (and is arguably easier than persuading a voter who holds entrenched opinions about a presidential candidate). You cannot talk a juror out of a deeply held value system; however, you can demonstrate how your case fits within it, and persuade the juror from that vantage point.

What Are the Characteristics of a Pro-Plaintiff Juror in a Trade Secrets Case?

The critical first step in persuading the pro-plaintiff juror to your defense perspective is to understand the key characteristics and value systems of that juror. Our experience with trade secrets cases at Perkins Coie has afforded us the opportunity to draw some significant conclusions. The following list is a short glimpse at what we have learned about the typical profile of a pro-plaintiff juror:

• Believes people “job hop” too readily for no good reason these days
• Feels a professional move to a key competitor is especially disloyal and potentially suspicious
• Feels it is unethical for a company to attain a strategic advantage when it hires an employee of a competitor
• Believes highly paid corporate executives possess less moral character than other people
• Scores lower on the Need for Cognition Scale (i.e., how much does the juror enjoy thinking?)
• Puts ethics ahead of the law when the two are in conflict
• Prioritizes “niceness in business” over an attitude that “business is business”

What Type of Theme Appeals to the Pro-Plaintiff Trade Secrets Juror?

Once you identify the key characteristics and values of the pro-plaintiff juror, your defense theme should be structured to appeal to these characteristics and values. Consider the following theme that questions a plaintiff’s ethics in filing suit against its departing employee:

My client is a loyal employee. But, by allowing these intolerable work conditions to continue, Plaintiff left her no real choice. She could have stayed and been unhappy or she could leave and take the risk that Plaintiff would follow through on his threats to sue. My client made the hard decision, but she remained loyal despite how she was treated. She took no trade secrets and she continues to honor and respect her former employer by strictly abiding by her legal and ethical obligations.  

The right theme should pull on the juror’s loyalty to, well, loyalty (now turned on the plaintiff). In addition, a strong theme can often serve as a pseudo-structure for the defense opening. This particular theme allows the defense to focus first on the unhappy atmosphere at the plaintiff’s company and, second, on the defendant’s feeling that she had no choice but to leave, despite knowing the jilted employer may file suit and frame her departure as nefarious.