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Of course, conducting a community standards check is not a pat process. Just because one competitor has a specific security measure in place doesn't mean that it is reasonable for the business conducting the survey to have it. For instance, a certain trucking terminal might require special security measures because it deals with high-value, high-risk cargo that others in the community don't handle.
Jurors look favorably on evidence that companies are concerned enough to survey their environment and make sure that their security program passes muster. Moreover, these surveys may well pay for themselves if a premises liability lawsuit is initiated. Such surveys should take less than an hour and need not be more frequent than quarterly. The survey report does not have to be elaborate. A single page checklist should suffice in most cases.
Security Surveys. Experienced plaintiffs" attorneys invariably will ask whether security surveys have been conducted at the site of the event under litigation. They expect the response to be no. When the defense is able to document a self-inspection of the facility prior to the event, the jury tends to view the defendant company as a responsible entity, often assuming that recommended upgrading occurred (of course, businesses should not rely on jurors' making that assumption; the wise path is to correct any security holes revealed in the Survey).
Often in the minds of the jury--but not necessarily in fact--risk analyses by independent parties carry more weight than proprietary surveys. That's why it is often advisable to hire an outside expert, with the assistance of the internal security manager, to conduct the survey.
In many jurisdictions, police offer free security surveys of businesses. While these surveys can be superficial, documentation that such a survey was conducted can contribute significantly to the success of a defense, as long as recommendations were followed.
Crime statistics. Crime statistics are a double-edged sword: the same numbers in the hands of different attorneys can be manipulated to show that a given incident was either foreseeable or unforeseeable. The goal is for security experts to ensure that the defense is using these statistics in the most effective manner possible and to expose any misleading use of them by the plaintiff's experts.
Most jurors are unaware of the volume of crime in any given community. Even relatively low crime statistics may seem astronomical unless presented to them properly. Additionally, some trial lawyers and their experts will use voodoo statistics," such as public service responses that seem valid but are not, to distort the facts.
Jurors can't relate to statistics they don't comprehend. For instance, it is difficult for most people to understand the significance of 50 burglaries per 100,000 residents when the incident occurred in a village of 5,000. Presenting statistics in this abstract manner is a serious mistake often made by the defense team.
I have found that the best way to present statistics is by simply dividing the number of crimes in the relevant community into the population and terming the result the "risk factor." For instance, if there are 50 burglaries in a community of 5,000, the risk factor would be 100. It's easy for jurors to understand that 1 out of 100 residents of that community will be a burglary victim each year.
When the risk factor is determined and then charted along with risk factors in other communities known to the jury-both high crime and low crime jurisdictions-the jury gets a realistic picture of whether the event was foreseeable from a statistical standpoint.
Only statistics from years preceding the event should be used. Statistics from the year the event took place are irrelevant since they would not have been available for evaluation before the incident (except, of course, when the statistics pertain to the specific site itself, because those numbers would be available to the defense). It should be remembered that statistics provide only raw data, and it is often necessary to take the research another step.
One example of a plaintiff expert's attempts at statistical legerdemain occurred in a recent case in Traverse City, Michigan, a resort community with a reputation for low crime and safe streets. In that case, Jane Doe v.. Traverse Investments, filed in 1996, a young lady was raped in her apartment by an intruder. She subsequently brought suit against the apartment complex and others. During depositions, the plaintiff's expert cited crime statistics showing sixty-eight rapes in the county during a relevant year. The plaintiff's attorney argued that with such a high risk of rape, the apartment management should have implemented a high level of security.
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