Making white-collar defendants blue-collar friendly

Bruce Collins, who represented former CEO Ken Lay during the Enron scandal, shared that in cross examination of him, the prosecution was allowed to veer from the relevant facts of the case to exploit class differences, dwelling on Lay’s compensation, expensive purchases and the money he borrowed from his company as it headed toward bankruptcy.Collins believes that the contrast created between Lay’s situation and the hardship of his employees was perhaps what hurt his case the most.

Collins shared his experience representing Lay and other white collar executives in “Keeping it Real: Making White-Collar Defendants Blue-Collar Friendly,” a teleconference sponsored by the Section of Litigation and the ABA Center for Continuing Legal Education.

Federal prosecutors often favor blue-collar jurors when defendants are white-collar professionals. The greater the contrast of wealth and power, the less likely jurors will empathize with defendants. Moreover, blue-collar workers often hold senior executives to high standards of accountability for the actions of others in their company, panelists revealed. How can lawyers combat the mindset of a jury that seems predetermined to loathe your client?

White-collar executives are successful in the business world because of high confidence and other characteristics that make them seem superior to others. But in trial, these attributes can alienate a jury. Panelists suggested that lawyers find common ground between the defendant and the jurors and build rapport with the jury.

Practice examinations with an objective observer to ascertain how the client will come across to a jury can help in preparing the defendant. An outsider can provide especially good feedback since the lawyer may have a skewed perspective because of his relationship to the client.

Panelist Alison Bennett, a litigation consultant with Tara Trask and Associates, finds that jury consultants are useful in preparing white-collar defendants for trial. Consultants examine body language, identify executive jargon to avoid and point out ways a defendant can find commonalities with jurors.

Collins cautioned that using a jury consultant can also have negative consequences. He recalls a trial in which the prosecution pointed out to the jury that a consultant trained the defendant to answer questions, thus casting the client as fake and unreliable.

Other thoughts from the panel include:

• Financial ambition is a strong American value. Jurors are not quick to penalize the wealthy. Rather, juries tend to see wealth as a possibility for themselves someday. Don’t hide wealth, but show its positives, such as philanthropic efforts.
• Many blue-collar workers feel relatively powerless and can be harsh critics of white-collar defendants who misuse power for personal gain. Creative voir dire can help identify them.
• Jurors expect leaders to have their fingers on the pulse of their companies. “I don’t know” or “someone else did that” does not fly with jurors.
• CEO’s often think they can own the room. Rather, the room owns them. Defendants should straight shoot with the jury.
• Expressing to the jury that the defendant is out of his normal environment may help to humanize the defendant and mitigate possible undesirable client behavior on the witness stand.

In addition to Collins and Bennett, the panelists included Michael Barta, Baker Botts LLP. Amy Davis, Hermes Sargent Bates LLP, moderated the session.

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