Posted on February 11, 2015 by James Price
The 2015 Super Bowl between the New England Patriots and Seattle Seahawks is over, but the NFL’s investigation continues into whether the Patriots cheated by deflating footballs during earlier National Football League contests. There are lessons in this experience for those of us who handle environmental trials or advise clients in such matters.
“Deflategate,” as this incident came to be known, tapped into sportswriters’, NFL veterans’, and the public’s distrust for (and maybe even dislike of) the Patriots in general and Bill Belichick, in particular. Many critical comments referred back to the 2007 scandal in which Belichick and the Patriots were caught videotaping an opponent’s game signals.
Similar preconceived attitudes and prejudgments affect juries, and sometimes even judges, that are called on to decide environmental disputes. Polling regularly shows that protecting the environment is a goal approved by a large percentage of the public. Polling also shows that large percentages of potential jurors do not trust big business. Jim Stiff, a jury consultant from Dallas, Texas, has studied comments during many mock jury deliberations and reports that potential jurors expect large corporations to know the regulations to which they are subject. Jurors seldom give credence to a corporation’s arguments that the requirements were unclear, that the company thought it was complying when hindsight shows it was not, or that the company was doing the best it could in a difficult situation. Further, jurors often come to trial with a hindsight bias that leads them to ignore the evolution of environmental information and judge earlier conduct based on today’s knowledge.
With civil trials, if an individual or small business is alleging injury from a large corporation’s environmental activities, jurors may focus on the specific allegations of damage they can see or with which they can identify, in contrast to the more abstract arguments advanced by the defendant.
With environmental criminal trials, such difficulties are compounded by additional factors that can lower the thresholds of liability-creating activity and feed into jurors’ tendencies to reduce complex arguments into core principles they can grasp:
— Some environmental statutes impose criminal liability on the basis of negligent acts without requiring specific intent to commit a criminal act;
— Court rulings under other environmental statutes hold a defendant need only have intended to conduct the act at issue and not the resulting consequence of that act;
— Many environmental criminal cases include at least one count of failing to report an environmental event. Prosecutors try to reduce failures to report to a black-and-white analysis: The defendant did not report an event the statute required.
To counteract these attitudes, corporate defendants facing environmental allegations early on must develop themes that will appeal to juries (and judges, too) such as opponents’ overreaching and lack of harm. They may need to cultivate arguments surrounding the complexity of the issues in dispute, but they must also make their case and themes simple. They may argue that their actions were approved by environmental regulators, and, surprisingly enough, they should be prepared to demonstrate that the regulators have the public’s interest at heart and are not coddling the regulated community. They need to have witnesses who can clearly explain complex technical matters in a way those without technical degrees can understand. They will seek to exclude potentially prejudicial evidence of earlier events. They will want to develop a thoughtful and strategic approach to juror selection.
In the case of the Patriots, Bill Belichick gave a press conference a week before the Super Bowl in which he reported the Patriots had conducted experiments showing changes in weather and temperature could account for deflating the footballs. He did not provide any details. About the same time, physics professors and mechanical engineers reported online that the intrinsic physical properties of gases such as air are governed by a principle known as the Ideal Gas Law. They said that under such principles, when footballs inflated at room temperature are taken to cold, wet, outdoor weather, drops in PSI are inevitable. Most talking heads, however, seemed to brush off these assertions of physics properties and experiments.
All of the evidence in this matter is not in. Nevertheless, in the court of public opinion, a large number of well-informed and probably well-intentioned people have made up their minds. Maybe the Patriots did cheat. Maybe not. But the people who have already made up their minds, either way, might just be demonstrating the challenges corporate defendants face in environmental trials.