by: Dr. Kevin Boully
The declining public opinion of many facets of American government was broad and deep during President Bush’s second term.[1] Despite some indications of a rebound early in the Obama administration, publicly salient government officials and federal agencies continue to suffer public disapproval. For instance, after a troubling 2008 and a handful of highly visible scandals, the Securities and Exchange Commission (SEC) is the most negatively viewed federal agency of the six included in our National Juror Survey, with 55% of respondents expressing an unfavorable opinion, compared with 46% of respondents expressing an unfavorable opinion towards the always-hated Internal Revenue Service (IRS). The percentage of potential jurors with unfavorable opinions has increased almost 20% from 2006.
Today, the SEC is in the process of a crucial “rebranding” that includes a more aggressive approach, and improved public relations, described well in Michael MacPhail’s recent presentation to the Securities Docket. Critics such as Mr. MacPhail argue that this more aggressive approach goes too far in negatively impacting defendants’ rights. At the same time, and in spite of anti-corporate sentiments and negative public attention for the banking industry, business and banking executives are enjoying relatively stable public perceptions that compare favorably to government officials.[2]
In litigation against the federal government, companies and individuals can take advantage of the widespread criticism of government officials and federal agencies like the SEC. Here are a couple of helpful litigation strategies.
(1) Understand baseline perceptions. Encourage jurors, judges and arbitrators to question agency officials’ use of resources by highlighting how your clients made good and fair use of the resources at their disposal, acted in good faith, and attempted to remediate any problems.
(2) Don’t assume that it is sufficient to comply with the law. Low opinions of agencies and officials generally accompany low opinions of minimum standards (represented by the applicable law) that most believe corporations and other actors ought to exceed. Demonstrate how internal standards of conduct go above and beyond government minimums, and reflect a “best practices” approach to compliance.
[1] For instance, public confidence in primary government institutions like Congress, the presidency, and the U.S. Supreme Court declined significantly from 2004 to 2007: http://www.gallup.com/poll/1597/Confidence-Institutions.aspx
[2] Favorable opinions of government officials declined consistently from 2003 (56%) to 2006 (40%) to where they remain in 2009 (43%). Opinions of business executives have remained stable since 2003.
