Like it or not, corporations are cold, emotionless institutions, yet legal counsel representing them during multimillion-dollar court battles know they must portray their clients in human terms if they are to win the favor of the jury.
One method of displaying the personality of a corporation is to call a CEO to the witness stand. Since most CEOs are used to espousing the virtues of their companies to stockholders and financiers, one would think that convincing 12 jurors of the solid character and merits of their corporations would be easy for them. Unfortunately, this is not so.
Instead of conveying a credible, likable image, without realizing it CEOS come across as omnipotent, cold and condescending. They must realize that a courtroom is not a boardroom and the attributes that led them to become captains of industry are not the characteristics that will score points during trials with juries.
For CEOs, time is money. With hundreds of decisions needing to be made every week, there is little time for them to nitpick the details, tolerate people with arrogant attitudes or put themselves in positions in which they are not in control. Yet this is exactly the courtroom setting: self-centered opposing trial lawyers ask for particulars in the most detailed cases, judges insist that the participants play by their rules and juries appear distant, uncaring or uninterested.
As a result, many CEOs appear to become impatient, even agitated with the trial process while on the stand. Jurors notice everything about a witness, and if they see this behavior they will invariably turn against the CEO. While jurors may not understand the intricacies of silicon chips or the complexities of multi-layered financing agreements, they quickly form opinions about the witnesses they like or dislike, believe or not believe.
In important cases, jurors are often interviewed after a trial to learn their opinions about the case and their perceptions of the various witnesses' believability. It is almost universal in cases in which a corporate entity lost and its CEO testified that the jurors remember the CEO as arrogant and unlikable.
This means the CEO must not only know the facts and nuances of a case but, more importantly, develop presentation techniques to be used during testimony that counterbalance the apparent mistrust created by CEOs for juries.
Often, a corporation's trial lawyers will conduct and tape mock trials , video taping the CEO's responses to possible cross-examination questions. Body language while answering questions can be just as important as the spoken word: when to fold your arms or cross your legs; when to smile or keep a neutral expression; when to lean forward or lean back, etc. All have subtle meanings and should be discussed and reviewed with legal counsel. Investing the time to evaluate the tapes and refine testimony and presentation skills is crucial and will make the difference in how the CEO is perceived the jury.
Entrepreneurial CEO
The entrepreneur CEO is usually a businessperson who has built a company from scratch and who now faces a major trial in which the opposition may have been responsible for devastating that business. This CEO is often very much involved in the facts surrounding a lawsuit and actively participates in the pre-trial and trial strategies. This kind of CEO's involvement can be helpful, since the corporation's attorneys can be confident that the CEO won't be tripped up by the opposing counsel over facts and figures.
The CEO's attention to detail, however, can easily be the case's undoing. Entrepreneur CEOs can be so zealous and completely convinced they are right that they cannot see the forest for the trees. Too, they may have been waiting for years to get their day in court, so when that day finally arrives, instead of rationally relating the facts with the right amount of emotion for effect, the CEO's zealousness may appear obsessive, vindictive or overbearing to the jury, thus eliminating any chance of portraying the company as a victim.
Entrepreneur CEOs like to think of themselves as "little guys" who unwittingly fell victim to an evil villain--the opposition at trial. A jury, however, will not normally accept this premise, believing that most CEOs who run successful operations have a high degree of intelligence and sophistication. This is especially true when the CEO has been in business for 10 or 20 years and has attorneys on retainer to provide legal guidance.
Entrepreneur CEOs soon become so involved in a case they stop listening to legal counsel and attempt to dictate trial strategies. It is the classic case of the patient telling the doctor how to operate. This is a particular problem faced by young attorneys who lack the experience to advise the CEO to play a lesser role, or by a "captured counsel," who does not have the guts to tell the CEO to back off out of fear of losing the corporation's business. Only if the trial lawyer is experienced and independent can CEOs like these be reined in and remain focused.
The Professional Manager
The professional manger CEO who is not the principal shareholder of a corporation brings yet another set of personality traits to the witness stand, many of which are the exact opposite of those presented by the entrepreneur CEO . Some of these CEOs consider themselves too busy to become involved in the day-to-day details of the trial. Preparing for trial to them means setting aside time the night before the trial testimony to bone up on the details--a deadly mistake.
The single most important factor in determining the CEO's success or failure on the stand is how much time he or she devotes to trying to understand the case. By not adequately preparing, this CEO is fair game for an experienced trial lawyer.
With the CEO fumbling over details, the opposing counsel can quickly dissolve any semblance of credibility or integrity of the CEO and the corporation. This allows the opposition to paint a picture of incompetence and mismanagement within the company, a picture that is unflattering at best.
Opposing counsel is also quick to expose a CEO's often sizable ego. A savvy trial lawyer will try to bait CEOs into making comments like, "I have 6,000 people working for me," or "I deal with $60 billion in assets." Though this kind of pontification is suitable for the boardroom or cocktail circuit, it is taboo in the courtroom, where a jury of Average Americans is unimpressed with this boasting. Modesty, humility and compassion must be the traits displayed during trial.
Clearly, with millions of dollars at stake, CEOs can ill afford to take a case against their corporation lightly. To do so could mean a major financial loss and negative publicity. Why spend thousands, perhaps millions, of dollars for advertising and have one blockbuster verdict for fraud destroy years of work to build a successful company image? It makes little sense, yet this scenario occurs all the time.
Trial Lawyers vs. Corporate Counsel
When a CEO must testify, legal counsel must adequately prepare the CEO to present the corporation's side and to fend off attacks by opposing attorneys. This same counsel in turn, should have the wherewithal to use the tactics necessary to attack the opposing CEO and to question his or her credibility.
Many CEOs, faced with a major trial, rely on their general counsel to recommend outside counsel to try the case. General counsel, in turn, usually calls their tried-and-true outside counsel, who service much of the company' transactional and general litigation needs . Although they may be excellent generalists, how are they in court during a two-to-six month trial? What is their track record? Some have not tried cases in years.
There is a huge difference between litigators and trial lawyers. A top-flight trial lawyer has built a team that specializes in sizable cases and has typically spent an entire career in the courtroom. Case loads often include several major trials a year.
In other words, if you need a heart transplant, you would not rely on your family doctor or the local surgeon to do it; you would seek out a top specialist. The analogy is the same for the trial of a major business litigation case, especially one in which the company's image and financial resources are on the line.
Preparing for the News Media
Depending on the nature of the trial and the players involved, the CEO may have to face another jury--the news media. They may want to report on the trial while it is occurring or on its outcome. The preparation and presentation skills developed for the courtroom can be invaluable when CEOs talk with the press. They should respond to media inquires with sincerity and conviction, as they should do when testifying.
The public forms much of its opinion about a company from the stories it reads, sees or hears. How and what the CEO says has a lot to do with how this opinion is shaped. Instead of just 12 jurors, in some cases, millions are watching. So the same demeanor that was developed for trial also applies to pre-, during and post-trial interviews.
CEOs must realize they have more responsibility than "just" running a corporation. They represent the heart and soul of the organization. If the CEO is perceived as heartless on the witness stand or in a newspaper or in a television interview, the corporation will be viewed the same. The results can mean not only a multimillion-dollar loss in court but also a loss in the firm's public image.