At trial, defense attorneys often wring their hands about whether to introduce evidence that calls into question plaintiffs’ character or truthfulness, such as criminal history, surveillance or social media postings.  The fear is that the defense might offend the jury by launching attacks they perceive as irrelevant or unfair, and that the backlash could manifest itself through the verdict.

We believe those fears can be overblown.  Anecdotally, we have observed for years during our focus groups that mock jurors generally adopt an attitude that “all’s fair” – within reason – in the context of a lawsuit in which the plaintiff is making serious accusations against defendants.  They believe defendants have a right to defend themselves, and examining the plaintiff’s credibility is a legitimate part of that.

This observation is now supported by hard data from a recent nationwide survey we conducted.  Among a sample of 500 jury-eligible participants, 57 percent agreed it is “fair game” to introduce evidence of an injured plaintiff’s past history of drug use or criminal activity, versus just 43 percent who said they would be offended.  Interestingly, those percentages were the exact same – 57 percent versus 43 percent – among older participants (45 years and older) and their younger counterparts (44 and younger).

The survey also asked about the appropriateness of conducting surveillance and secretly recording plaintiffs in public.  Fifty-seven percent of respondents said this was fair game, and 43 percent said it is not.  There was a slight age gap on this question, with respondents who were 45 and older being 5 percentage points more likely to say it is fair game than younger respondents (60 percent to 55 percent).

Lastly, we asked whether it is generally appropriate for defendants to use plaintiffs’ social media postings, positive or negative, as evidence to support the defense’s case.  A decisive 64 percent indicated it is appropriate versus 36 percent who said it is not appropriate.  There was a similar age gap for this question, with 68 percent of those 45 and older saying the defense using a plaintiff’s social media postings is appropriate compared to 62 percent of younger participants.

The takeaway is that, although there is always a risk, defense lawyers need not worry too much about offending jurors by delving into a plaintiff’s past or whether they are being truthful about their injuries.  But there are limits, of course.  For example, we have found during focus groups that jurors are much more critical of surveillance when the injured party is a child, and we believe any benefit of doing this is not worth the risk of coming across as distasteful or even creepy.

There is one important caveat: Just because jurors aren’t offended by surveillance or bringing up a plaintiff’s past doesn’t mean it will be effective in undermining their case.  Civil defense lawyers are often more conservative than the population as a whole, and activities they may find distasteful may not bother jurors.  For example, jurors might not consider a plaintiff’s minor drug charge or work as an exotic dancer to be relevant, depending on the jurisdiction.

Further, jurors may not be concerned if surveillance shows a supposedly severely injured plaintiff out and about, even going on international vacations, arguing instead that the person is just trying to live life as much as they can.  As one juror stated when discussing pain and suffering damages for a woman with Stage IV breast cancer who had posted Facebook photos from the Caribbean, “If she wants to enjoy her last few years in grand style, go for it.”  We believe you should always consider whether potentially controversial information will likely matter to jurors before you decide whether to risk bringing it up in court.

Our online survey tool is the perfect platform to test this type of issue with jury-eligible respondents in the actual trial jurisdiction.  For a reasonable cost, we can ask a statistically significant sample of participants whether a particular issue regarding the plaintiff would matter to them, and how.  It’s always better to know if something might backfire – and if the risk is worth it – before you trot it out during trial.

If you’d like to find out more about how our online research process can help you evaluate an aspect of your case, please contact Senior Vice President/Partner Claire Luna at cluna@juryimpact.net.

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Pivoting During a Pandemic

With all in-person projects postponed until May at the earliest, we have turned to web conference focus groups to address our clients’ research needs in a timely fashion.  Even while travel and courts are at a standstill, there is still a strong interest in developing case strategy – especially when mediation and settlement deadlines are looming this summer.

Through Zoom and our Instant Response technology partner, we have developed an effective and innovative way to conduct focus groups that allows the same kind of challenging, juror-driven discussion you love from Jury Impact but through remote technology.  Juror predispositions, case facts, arguments, witness videos and damages can all be tested while you observe and communicate with our backroom analysts to make sure the research stays focused on your priorities.

Jurors are craving both social interaction and financial compensation right now, and this format allows your trial team to safely explore their perspectives through virtual-only research.  Contact us for more information on this approach, or a no-cost webinar to see exactly how this works.