Friends of Jury Impact,

As the world continues to learn more about COVID-19, the health and safety of our team as well as our clients and participants are front and center in our minds and actions.  We have postponed all in-person research through mid-April and continue to monitor guidelines and restrictions in determining when to resume those projects.

In the meantime, we want to make sure you are all aware of our alternatives to in-person research.  The list below is not exhaustive – we are happy to discuss any of your pending cases and what approach will be the best option to obtain helpful feedback.  During this challenging and unprecedented time, our goal is to continue to serve our clients however we can in a creative, safe and meaningful fashion.  Once we deem it safe to resume travel, rest assured we will be back on the road and eager to see all of you in person.

We have also taken this opportunity to resume writing our articles based on recent jury research and current events.  We have many new findings from a recent survey on damages that we look forward to sharing with you.  Let us know if there are any topics of particular interest to you and we will try to cover them.  Thank you for your continued support, and stay well.

Online surveys: Our online survey process lends itself well to simpler cases or studies focused on specific and limited aspects of a case such as damages, whether a defendant should admit negligence or how aggressively the defense can argue contributory negligence.  We have successfully tested cases online involving claims of medical malpractice, product liability, premise liability, maritime law, dram shop law, inmate healthcare and many other issues.

Videoconference focus groups: We can conduct live focus groups and broadcast them remotely via videoconference, allowing jurors to provide the nuanced feedback you have become accustomed to through our in-person research.  You are able to guide the discussion, provide information and ask jurors questions via an Instant Messenger system connected to our staff.  We suggest this approach for cases with more complexity, higher exposure and/or those where you want to effectively gauge the effect of “groupthink” on juror perspectives about a case.

Witness evaluation: Our online process allows us to quickly survey 50-plus participants in your trial jurisdiction about their perceptions of the credibility and likeability of crucial witnesses, including corporate representatives and key fact witnesses.  Jurors view a video clip from an actual or mock deposition, then provide immediate ratings and open-ended feedback about the witness’ verbal and nonverbal performance.  This data can be used internally to evaluate how a trial jury will view your witness and can factor into decision-making about who should sit at the counsel table during trial.

Witness prep: Prep sessions can be conducted via videoconference, allowing one or more of our trained consultants to observe and provide real-time feedback about a witness’ overall performance and ability to present the defense messaging and story.  This can be done in conjunction with a witness evaluation survey so that witnesses better understand real jurors’ perceptions of their presentation style and can make strategic changes accordingly.

Exit interviews: If you have had a recent adverse, unexpected verdict at trial, exit interviews can provide insight into jurors’ decision-making regarding liability and damages.  This process can be especially useful if it is a “bellwether”-type of case that is the first of many on that issue or involves the same defendant.

Jurors Assume Doctors are Hospital Employees

As we all know, jurors are not experts in medicine, the law or the judicial system.  As such, their own preconceived notions, personal experiences and misconceptions often influence how they interpret case facts and arrive at a verdict.

During more than 15 years of medical malpractice research one of the most common – and troubling – juror assumptions we encounter is that doctors caring for patients in a hospital are direct employees of that facility.  In fact, Jury Impact’s most recent nationwide healthcare survey, fielded in October 2019 with 500 jury-eligible respondents throughout the United States, revealed that almost 80 percent believed most doctors are hospital employees.  As you can imagine, this widespread assumption creates an uphill battle when defending hospitals against claims of ostensible agency/vicarious liability.

When conducting focus group and online research for cases involving ostensible agency, we have observed that even after educating participants that most doctors are in fact independent contractors, their perceptions regarding the facility’s accountability for doctors’ actions do not waver.  This tendency is consistent with the results of our national survey, in which jurors were asked: “Regardless of whether a doctor is a hospital employee, versus an independent contractor, do you believe the hospital is responsible for any mistakes the doctor makes while treating patients at that hospital?”  In response, 78 percent voted yes.  As one participant expressed during a recent focus group, “It’s kind of like a rent-a-hospital, and I do think the hospital is responsible because [doctors] are under the umbrella and they are responsible for how they represent the hospital.”

Furthermore, 76 percent of nationwide respondents agreed that a hospital should be held responsible for any issues or complications that happen under its roof, regardless of whether the person making the mistakes is a hospital employee.

As daunting as these findings are, it is important to understand the drivers behind them.  Ultimately, we have learned that jurors simply don’t like the idea of a hospital vetting and performing background checks on a doctor, ultimately allowing that doctor to treat the hospital’s patients, then avoiding all responsibility when that doctor harms a patient.  This boils down to a fundamental issue of fairness, and a resistance to the general premise that a hospital can escape liability for “its” doctor based on a perceived technicality.

We have also learned that jurors rarely buy into the notion that a consent form trumps all.  Research participants often point out that patients cannot receive care until they sign the forms that are pushed in front of them, often during a time of considerable stress and trauma.  A common refrain is that since patients and their loved ones sign consent forms “under duress,” it is not reasonable to expect them to fully understand the technical aspects of the doctor/hospital relationship, and patently unfair to hold them to the terms included in the fine print.

Although we have yet to find a “silver bullet” argument to convince jurors that hospitals are not ultimately responsible for independent contractors’ actions, we have noted several helpful education points:

• Doctors bill separately for their services. This is especially helpful because many jurors have experience receiving separate bills from the hospital and the doctor.  Playing to this personal experience can be a way to create separation between doctor and hospital.
• Hospital administrators don’t have any say over doctors’ medical decisions. In our experience the vast majority of jurors believe this is how it should be, and helps to support the theme that independent doctors are responsible for their independent decisions.  However, we frequently hear the counterargument that since doctors are subjected to the hospital’s policies and rules, the hospital does still have some sway over doctor’s actions and therefore shares responsibility for poor outcomes.

Ultimately, every case is different and when deciding whether to pursue a jury trial it is important to first understand the worldviews and beliefs among your venire.  It is especially vital to determine whether jurors’ deep-seated predispositions can be overcome with education, or whether their core beliefs would prevent them from siding with the defense – even if the medicine or technicalities of the agency issue are on your side.  If you have an upcoming case that could benefit from jury research, please feel free to contact us.

If you’d like our help evaluating what kind of research is the best fit for one of your pending cases, we’d be happy to lend our perspective.  Contact Partner/Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out more about our services.