Report Concerning Smoking and Health Issues Prepared by Consultants Engaged by RJR for the Purpose of Assisting Attorneys in Connection with Ongoing Litigation

This document from the R.J. Reynolds Bliley set shows the effort and detail that the tobacco industry puts into figuring out how to select favorable jurors (and determine persuasive arguments) for a product liability case. The document describes a mock-trial exercise that took place in 1988 and provides "an analysis of the reactions of four people identified as strong plaintiff jurors during a trial simulation for a hypothetical tobacco-product liability case." 96 mock jurors participated in the exercise. The jurors heard a judge's introduction and then the plaintiff's and defense's opening arguments to the case. The jurors were given hand-held meters with dials on which they were told to record their reactions (either favorable towards the plaintiff or favorable towards the industry). Charts were kept that showed at what points they reacted favorably or unfavorably to the proceeding, and exactly how far they moved the dial in a given direction. (The charts can be seen towards the end of the document).

After the exercise, particular attention was paid to the most pro-plaintiff jurors. These jurors' reactions to individual arguments were analyzed in detail to determine which arguments best neutralized or swayed their opinions. An attempt was made to determine whether these strongly pro-plaintiff jurors shared any particular characteristics in common. The exercise was designed to help tobacco industry attorneys learn how to select jurors who could most likely be persuaded to the industry's point of view, and determine which arguments are most likely persuade the jurors to their side.

Sample quotes from document:

The following is an analysis of the reactions of four people identified as strong plaintiff jurors during a trial simulation for a hypothetical tobacco-product liability case. The simulation took place on September 24 and 25, 1988 in Cleveland, Ohio; 96 mock jurors participated. The jurors heard a judge's introduction, the plaintiff's opening and the defense's opening. As jurors listened to the speakers, they indicated their reactions (who they were favoring, based on the information presented) on hand-held meters. Their reactions were recorded on video tape and computer.

The following analysis is based on the reactions of four individuals who showed very strong sympathies for the plaintiff during the deliberations following the presentation.

The purpose of this analysis was to discover if there were any common threads linking these four jurors...This report concludes with a brief summary of the findings.

[From Page 5, Bates No. 515793862]:

Willie's opinion remained neutral for the first seven minutes of the opening (see Figure 2A). As soon as he heard that "pesticides are...poisons, designed to kill, (A)" his opinion line jumped 40 points in favor of the plaintiff. There was a slight moderation of this opinion at the 15-minute mark, when the chemical Phuristan was mentioned (B).

It seems unlikely that the sentence "pesticides are poisons" was sufficient to cause Willie to change his opinion. Rather, the arguments and information preceding this point in the opinion were affecting him, and it took this catchy phrase to galvanize his thoughts. Up to the point he indicated his opinion change, he heard the plaintiff attorney say that: i. Harlan was addicted, and did not know about the pesticides. 2. Harlan had switched to Mayfair because they had filters,

3. A plaintiff cannot recover damages from a good product (i.e., from good tobacco),

4. A manufacturer is liable for a design defect,

5. Harlan knew he was taking a risk, and

6. Harlan justifiably expected National to minimize the risks of its product.

"Pesticides are poisons" was the straw that broke the back of his neutral opinion.

[From page 21, Bates No. 515793870]:

Willie:

For the first 10 minutes, Willie's dial stayed on 100; he indicated that he was completely pro-plaintiff (See Figure 4A). At about the 10 1/2 minute mark, his line fell to 30 -- a moderately pro-defendant position (A). At the time of this abrupt change, the defense attorney was talking about all the chemicals that compromise a typical cooked potato...

[From Page 25, Bates No. 515793874]:

The items of information that hurt the defense are:

C. That for those who smoke, the benefits outweigh the risks,

D. "95% of all smokers do not get lung cancer,"

F. For Harlan, the benefit outweighed the risks of smoking,

I. That cigarette companies have to balance safety with other customer demands,

K. Flavorings, like lemon essence, can be produced synthetically, and

M. There is no evidence that flavorings increase the risk of cancer.

Title	 Reanalysis of the Cleveland Metering Exercise: Reactions of Four Strong Plaintiff Jurors - June 1989 Author	 Public Response Associates Inc. Date	 19890600 Type	 Chart/legal-brief Bates	 515793850/3904 Collection	 RJ Reynolds Pages	 55 URL: http://legacy.library.ucsf.edu/tid/syj95a00