The recent trial and conviction of former Minneapolis police officer Derek Chauvin thrust the debate about policing and systemic racism back into the spotlight, but race in America has been a major issue in our national dialogue at least since George Floyd’s death last May.  During our live and virtual focus groups throughout the last year, we’ve learned that jurors bring their perspectives about this debate into the deliberation room.

Increasingly, we’ve seen that it’s not just jurors of color who factor the impact of race into their evaluation of a case – many white jurors do, as well.  Perhaps this shouldn’t be surprising, given the multi-racial crowds at protests last summer.  But what has struck us is the diversity of white jurors expressing such “woke” opinions.  It’s no longer just younger, more liberal jurors.  We’ve heard older, conservative men argue that police often don’t give Black men a fair shake, and we’ve seen white grandmas wearing Black Lives Matter T-shirts.

A number of polls conducted during the past year bear out these changing attitudes.  For example:

• A YouGov/UMass Lowell poll last August found that 51 percent of Americans – including 48 percent of whites – think Blacks are treated less fairly than whites in their interactions with police.
• A Wall Street Journal/NBC News poll last July found that nearly 60 percent agreed that Black people face discrimination.
• According to a Pew Research poll from March 2021, 80 percent of Americans – including 76 percent of whites – believe there is a lot of or some discrimination against Black people.  Seventy-six percent said there is discrimination against Hispanic people and 70 percent against Asian people.
• Last month, Gallup found that 48 percent of respondents say they worry about race relations a great deal, compared to 31 percent in March 2020 (before George Floyd’s death).

These attitudes extend beyond just criminal justice and policing and touch many aspects of American life.  For example, an October 2020 poll by The Undefeated and the Kaiser Family Foundation found that 41 percent of whites – as well as 70 percent of African-Americans and 43 percent of Hispanics – agreed that “our healthcare system treats people unfairly based on their race or ethnic background” very often or somewhat often.  Anecdotally, during focus groups for a recent construction-injury case, several jurors of various races commented that Hispanic construction workers are more likely to face unsafe jobsite conditions due to a reluctance to report problems because of immigration status concerns.

The fact is, race is increasingly an issue many trial lawyers must consider – even if your work doesn’t relate to hot-button issues like policing or criminal justice.  Although there is obviously no silver bullet to take racial factors out of a case, there are steps defense attorneys can take to blunt the impact:

• Don’t hide from it.  Many lawyers are understandably reluctant to even acknowledge race as an issue in a trial, but that does not mean jurors won’t still think it.  If you think it might be an issue, find a way to address it, ideally up front during jury selection.
• Educate about the reality.  We know that many people believe Black people receive substandard health care compared with whites.  We’ve heard hospital executives complain, “If only they knew how much free health care we give away…”  Well, tell them.  If a case involves an underprivileged Black plaintiff, educate the jury about the hospital’s outreach programs and efforts to provide low-cost care to those in need – and how a particular plaintiff may have benefitted.
• Highlight your witnesses’ character.  Racism is an issue of character.  Allow defendant witnesses to educate the jury about their character, including their backgrounds, values, community service efforts and life experiences.
• “I don’t see race.”  Everyone sees race.  Rather than having a defendant doctor, for example, deny that race is a factor in treatment decisions, lean into the issue by eliciting testimony that a patient’s race is relevant only insofar as some races are more prone to certain conditions than others.  Thus, instead of saying, “I don’t see race,” the doctor can say, “I do see race, and I account for how that might be a factor in an individual patient’s health.”
• Don’t pander.  There’s a fine line between not hiding from the race factor in a case and pandering, which will come off as inauthentic.  We can’t tell you what that line is, but consider discussing the issue with various coworkers – Black, white, young, old, etc. – and get their opinions about how to strike the right balance in your case.  For example, we have monitored several trials where one side will bring in a lawyer or client representative who never says a word, but just happens to be the same race (we’ve seen it with gender as well) as a key person in the case.  Jurors are observant, and they typically interpret this as offensive pandering.

There’s no doubt this is a tricky issue, and one that is becoming more and more important for lawyers to address as attitudes toward race change.  If you’d like our perspective on how to handle a racial element in one of your cases, contact Senior Vice President Claire Luna at cluna@juryimpact.net to find out how we can help.

We have found that in addition to photos and demonstratives, video can be a crucial, sometimes game-changing piece of evidence.  Therefore, it is crucial to test the impact, positive or negative, of this material when evaluating a case prior to mediation and trial.

As underscored in a recent AP article titled “Video dominates trial in George Floyd’s death,” video footage – including body cams, surveillance footage and video taken by bystanders with their phones – is one of the most important elements in that legal proceeding.  In fact, during the first few minutes of Derek Chauvin’s trial, the prosecutor played video for the jury, properly setting the stage for what they would be asked to focus on when arriving at a verdict.

During recent focus groups, one of the most striking findings was the effect that a 40-second Day in the Life video snippet had on the discussions.  Jurors were already sympathetic to the plaintiff’s cerebral palsy-related deficits after reading the Case Summary, and the brief clip of the child struggling to communicate and interact with his caretakers had a palpable effect on their opinions of the case – as well as their definition of “reasonable” damages.  As one participant articulated, “That changes everything.  I’m with the plaintiff on this one… Looking at the child, he’s obviously suffering.  I’m totally with the plaintiff, and I understand their perspective.”

Other respondents expressed that seeing the child suddenly “made things real,” creating a stark contrast between the opinions they formed after simply reading about his injuries, versus those shaped by actually seeing him on video.  As one juror tearfully explained, “[The video] makes it much more real and concrete than reading about what his life might be like and the care he needs.  It has a larger impact on me when I see it visually.  My award just probably doubled.”

So what happens if a Day in the Life video doesn’t exist or isn’t available for focus groups?  We have found that Facebook and other social media platforms can sometimes be good resources for finding footage to play during jury research.  Especially when evaluating damages, providing as much context as possible about an injured party’s condition is paramount, and even a brief amount of “day-to-day” footage – even captured with an iPhone – is enough to gauge its effect on juror sympathy.  It is worth noting that in some cases, participants tell us that an injured party “looked better” in the video than they were expecting, further highlighting the importance of testing this footage.

The same goes for presenting video from key witness depositions.  Although we always strongly recommend recording depositions on video, we understand this is not always feasible and that sometimes depositions are completed long before focus groups are even considered.  In these situations we like to point out that one of the good things about COVID has been the rapid adoption of Zoom and other video conferencing apps, which allow counsel to more easily reach witnesses and conduct quick “faux depos” – all without getting on a plane or consuming an entire day.  Even though these mock cross-examinations are not official depositions, focus group jurors still appreciate being able to see the witnesses and evaluate their credibility and effectiveness based on their facial expressions and demeanor.

Regardless of the type of case, video can be a highly effective way to provide important context.  For example, in a recent case involving a patient who claimed caregivers ignored her cries for help and alarms from her monitors, counsel went to the hospital and filmed the area outside the patient’s room, which showed just how close the nurse’s station was.  Based on this footage, the majority of jurors insisted someone would have heard the patient or the alarms.  Also, in a product liability case involving highly specialized equipment, video was crucial in helping jurors to understand how the machinery operated and what both sides were specifically claiming.  Furthermore, if you have different versions of videos or animations and want to know which are the most effective, or need input on what changes will make them more understandable, focus group research is the perfect venue.

The bottom line is that presenting video can be an incredibly important way to properly evaluate the strengths and weaknesses of a lawsuit, and there are creative ways to obtain it for research purposes even if discovery has already been completed.

If you want to evaluate a case, test key witnesses or learn more about your trial venue, please contact Partner/Senior Vice President Claire Luna at cluna@juryimpact.net to find out how we can help.

During recent virtual focus groups, plaintiff-leaning participants explained the reasoning behind their verdicts by citing three key arguments – each one simple, concise and highly logical.  The problem?  The plaintiff herself wasn’t actually making any of those arguments.

Although we repeatedly pointed this out to jurors, these same arguments consistently resurfaced.  Because participants found the plaintiff’s causation theory to be complicated and rather hard to follow, those intent on awarding money quickly came up with their own criticisms of the defendants that better fit what they believed the plaintiff’s case should be.

Without getting into specifics, our Zoom respondents viewed this situation as a classic “missed diagnosis” case involving doctors who failed to “dig deeper” to uncover a rare, underlying condition in time to prevent injury.  However, the plaintiffs’ experts all agreed this incredibly rare disorder could not have been diagnosed by the defendant doctors, and were only arguing that they should have “followed up more” with the patient’s primary care doctors about additional testing – an argument many jurors found tenuous at best.

During research for an array of cases, we have frequently encountered this juror tendency to come up with their own narrative – especially when the actual criticisms and/or storylines are unclear or vague – highlighting the importance of establishing early on not only what a case is about, but also what it isn’t about.

Based on our observations during Group One, for the second session we educated jurors up front regarding the fundamental plaintiff and defense arguments (basically miniaturized opening statements), and also clarified what both sides were not arguing, leading to a more streamlined discussion and, ultimately, a more focused and defense-oriented group.

Regardless of the type of case, before heading to trial it is crucial to understand how jurors view the facts on a gut level, and what kind of narrative they naturally gravitate to.  That way, your team has the opportunity to explain to trial jurors what they are truly there to decide, and develop a story that aligns with their gut-check perceptions.

Every case is different, just as every jurisdiction poses its own challenges.  We are busy conducting virtual and live focus groups, and are happy to help you with your case evaluation needs.

Pivoting During a Pandemic

We have resumed in-person research in some areas, but we will continue conducting virtual focus groups and witness preparation sessions in many jurisdictions into the fall and perhaps winter.  This includes areas with an older population that is higher risk, or places with extremely restrictive social distancing policies limiting the number of people in a room.

Our virtual focus groups have provided our clients a meaningful way to evaluate cases and develop mediation and trial strategy.  Through Zoom, we can conduct focus groups that provide 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 brief, no-cost webinar to see exactly how it works.

The release of the blockbuster musical Hamilton on Disney+ has been one of the few highlights of an otherwise gloomy summer.  Those who haven’t seen the production might not be aware that along with his role as a Founding Father, Alexander Hamilton was also a prominent New York City attorney who was part of the defense team for one of the nation’s first murder trials (which ended in an acquittal after only five minutes of jury deliberations).

Here’s a look at what Hamilton might have to offer in the way of lessons for lawyers practicing more than 200 years later.

Talk Less, Smile More

Alexander Hamilton was notorious for his mouth – he never knew when to stop talking (or writing).  That character flaw led him into numerous personal and professional predicaments and ultimately contributed to his downfall in a duel with Aaron Burr.  During one scene of the play, Hamilton admits that his rival Burr was a better lawyer because he was succinct and made every word count.

Being succinct is still an admirable quality in an attorney today.  Does your opening need to be an hour and 15 minutes, or might you accomplish just as much in 30 or 45 minutes?  Jurors have other places they’d rather be, and they appreciate lawyers who respect their time by saying only what they need to say.  Rambling and repeating yourself are sure ways to annoy jurors and test their patience.

The Room Where It Happens

One of the character Aaron Burr’s defining traits is his desire to be “in the room where it happens.”  We get it.  Everyone wants to be the center of attention from time to time, but consider that a trial isn’t about you – it’s about your client.  In numerous post-trial interviews we’ve conducted over the years, jurors have criticized plaintiff and defense attorneys for indulging their egos by grandstanding and engaging in excessive theatrics.  It’s fine to put on a little bit of a show for the jury, but it’s also easy to go overboard and come across as preening.  If you’re unsure of where that line is, we suggest running through your opening or closing with a colleague you can trust to tell you if you need to dial it back.

It Would Be Enough (Witnesses)

Along with knowing when to stop talking, it’s also important to avoid calling too many witnesses you don’t need.  We’ve monitored a lot of trials over the years, and too often we find ourselves toward the end of a trial thinking, “I’ve already heard this 10 times.  I get it.”  If witness testimony strikes us as repetitive, you can bet the jury thinks so, too.  Your trial strategy should involve a carefully thought-out plan for how many witnesses you really need and what you need to accomplish with each one.  Then, make sure to stick to that plan and avoid straying beyond the intended purpose of each witness.

Cabinet Battle

Hamilton contains a number of entertaining scenes where Hamilton and Thomas Jefferson engage in spirited verbal combat.  But you’re not a rapper, and jurors are unlikely to be entertained by bickering between lawyers.  In fact, one of the most frequent complaints about trial attorneys we hear from jurors is petty sparring.  It’s easy in the heat of battle to get riled up by your opponent, but we suggest you take the high road.  Make the legal arguments you need to make, but avoid comments that could come across as snide, personal or petty.

If You Stand for Nothing, Burr, What’ll You Fall For?

The musical’s Aaron Burr has no core values, and in fact changes parties to run for a former ally’s Senate seat.  Values matter to jurors, and we’ve observed that “fairness” is often more important to them than which side is legally correct.  In fact, jurors will sometimes twist the law and jury instructions to allow them to do what they think is most fair.  Without grandstanding, we recommend you incorporate elements of fairness and doing what’s right – even if it means asking the jury to find against a party who is likeable and sympathetic.

We’ve seen a lot of trial presentations, and we’d be happy to lend you our perspective.  We’re available for Zoom consultations to go over your trial opening or mediation presentation, and we can incorporate attorney presentations into our virtual focus groups to find out what real potential jurors think.  Contact Partner/Senior Vice President Claire Luna at cluna@juryimpact.net to find out how we can help.

Pivoting During a Pandemic

We have resumed in-person research this month in some areas, but we will continue conducting virtual focus groups in many jurisdictions into the fall.  This includes areas with an older population that is higher risk, or places with extremely restrictive social distancing policies limiting the number of people in a room.

Virtual focus groups have provided our clients with a meaningful way to evaluate cases and develop mediation and trial strategy.  Through Zoom, we can conduct focus groups that provide 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 it works.

Although many trial dates have been pushed back to later this year or well into 2021, discovery, mediations and case evaluations continue on.  And just like jury research has had to adapt to the new world of social distancing, so too has conducting depositions.

While attorneys participating in depositions over the phone is nothing new, what has changed is that many witnesses are now fielding those questions from their kitchens or bedrooms, rather than the conference room at a law firm.  And when conducting your depositions over Zoom, Skype or FaceTime, it is important to keep in mind that at some point these recordings may be shown during a focus group or mock trial, or even during a live trial – highlighting the need to ensure your witnesses come across as credible and effective, even though the backdrop is decidedly more casual.

Ultimately, the goal should be to impart on your witnesses the importance of treating a virtual deposition just like they would an in-person one.  The primary difference is that instead of having a professional videographer in the room, your witness is now responsible for framing the shot, setting up the lighting and positioning the camera – something that we are quickly learning doesn’t come easily to everyone.  As such, we have devised a list of basic recommendations to help you and your witnesses navigate this new format.

First, although there are distinct advantages to working from home, most of us would admit that no longer going to an office has resulted in dress codes being somewhat relaxed (and in some cases, extremely relaxed).  Although it may seem obvious to emphasize to witnesses that they need to dress the part regardless of whether the deposition is virtual or in-person, we have observed during the last few months that some witnesses clearly have a different idea of what a “professional appearance” looks like.  Don’t be afraid to provide specific clothing recommendations to ensure their appearance conveys a sense of confidence and professionalism – even if they are answering questions from their couch.

Second, even if a witness is professionally dressed, the wrong camera angle or location can create major distractions.  In case you missed it, recently a Good Morning America anchor failed to check his camera position and it was quickly revealed that below his professional-looking shirt and coat was a pair of shorts.  Not a good look.

In addition to ensuring the camera isn’t too far out since that can reveal more of the background and less of the speaker, it is also important to avoid extreme close-ups, which can be really jarring.  We have also noticed a trend of highly unflattering camera angles – especially low angles that focus on the chin.  Placing a few books under the computer, tablet or camera can do wonders in creating a head-on, from-the-chest-up of your witness.

Third, although a law office’s conference room has good lighting fit for a deposition, many people’s homes do not.  In addition to ensuring there is plenty of light to avoid the “floating head” phenomenon created by a dark background, it is important to remind witnesses not to sit up against a window or other light source since their face can easily be washed out.  Sitting in a non-swiveling chair up against a wall with even lighting will do just fine.

Fourth, witnesses need to be especially mindful of what, or who, is visible in the background.  During a recent virtual focus group, we showed jurors a clip from a key witness deposition, and several pointed out the presence of a man watching TV just off screen, which caused them to spend more time wondering what he was up to rather than focusing on the witness.  If there is a huge mess or people or animals moving around behind the witness, it can obviously create significant distractions for those viewing the footage.  Recommend to your clients to tidy up, or better yet just use a virtual backdrop.

Overall, the fundamentals of witness preparation have not changed – posture, eye contact, attitude and body language still matter.  But as more depositions and witness prep sessions are conducted virtually, there are clearly some new things of which you and your witnesses should be mindful.  We will add to this preliminary list of recommendations as time goes on, but in the meantime if you would like some help with live or virtual witness preparation and adapting to the new way of doing things, please reach out to us.  Partner/Senior Vice President Claire Luna can be reached at cluna@juryimpact.net or 949.735.1278.

Pivoting During a Pandemic

We have resumed in-person research this month in some areas, but we will continue conducting virtual focus groups in many jurisdictions into the fall.  This includes areas with an older population that is higher risk, or places with extremely restrictive social distancing policies limiting the number of people in a room.

Our virtual focus groups have provided our clients a meaningful way to evaluate cases and develop mediation and trial strategy.  Through Zoom, we can conduct focus groups that provide 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 it works.

During more than 15 years of conducting live (and now virtual) jury research for medical malpractice cases, one of the most common juror questions we encounter is, “Did the plaintiff have health insurance?”

This question is so common because of the strong perception among many jurors nationwide that a patient’s insurance status dictates the level of care they receive.  As such, in a medical malpractice case where errors are alleged, the patient’s insurance – or lack thereof – can provide jurors with an explanation for why the patient received a lower level of care and attention.

Especially given that an insurance card is one of the first things we are asked for when we go to a hospital or doctor’s office, this widespread juror predisposition about the importance of insurance is understandable.

The perceived importance of establishing one’s insurance status before any care is provided also feeds the misconception that all subsequent care providers must also be aware of that status – and therefore they factor it into what level of care they give to the patient.  Another common assumption we have observed among some jurors is that the decision whether to order certain tests, some of which can be expensive, is also based on the patient’s level of insurance coverage.

We have also learned that many jurors believe having “the right kind” of insurance can influence the quality of care.  Perhaps not surprisingly, those jurors who have been on county or state-provided health coverage are typically the most vocal in expressing a perceived bias within the healthcare system.

During recent virtual focus groups, some participants were familiar with the clinic where the plaintiff received her prenatal care, and its reputation for serving patients from a lower socioeconomic status.  As such, these jurors assumed caregivers from the defendant hospital, who knew that the patient had been sent there from that particular low-income clinic, were judging or looking down on the patient – which to them explained caregivers’ apparent lack of urgency.  It is notable that the plaintiff did not make any of claims of this sort – these jurors simply assumed, based on their own perceptions of the clinic, that this was the case.

Although we often have to explain to research participants that the plaintiff’s insurance status is almost never admissible and is not something they should consider, this does little to dissuade jurors from their underlying assumptions.  This highlights the importance of asking the right questions during voir dire, as well as taking the time to explain to jurors that treating caregivers are often totally unaware of a patient’s insurance status, and decisions about which tests to order are solely based on medical judgement – not what kind of insurance the patient has.

Like many of our findings from nationwide jury research, some of these observations are highly location dependent and perceptions about insurance informing care are more prevalent in certain jurisdictions.  When evaluating risk, it is vitally important to understand the predispositions and assumptions that are out there (whether rational or not), where they stem from and how they can affect juror interpretation of your case facts.

Although many courts are still closed, mediations are still happening and we are still conducting research.  If you want to evaluate a case, test key witnesses or learn more about your trial venue, please contact Partner/Senior Vice President Claire Luna at cluna@juryimpact.net to find out how we can help.

Pivoting During a Pandemic

We will be resuming in-person research later this month in some areas, but we will continue conducting virtual focus groups in many jurisdictions into the fall.  This includes areas with an older population that is higher risk, or places with extremely restrictive social distancing policies limiting the number of people in a room.

Our virtual focus groups have provided our clients a meaningful way to evaluate cases and develop mediation and trial strategy.  Through Zoom, we can conduct focus groups that provide 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 it works.

The world, and especially the United States, is in turmoil right now.  It’s hard to get a group of people to agree about virtually any meaningful issue.  But what has become clear, at least anecdotally through our recent research, is that opinions about medical providers have gotten better due to COVID-19.

During a recent virtual focus group with New York City residents, all but one agreed that COVID-19 has changed their views of healthcare workers, or at least strengthened their already-positive perceptions.  Although we have not yet fielded a national survey to get hard data about this issue, we anticipate seeing significant improvements in our next poll.

In our last survey, conducted in October 2019, 79 percent overall said they generally trust nurses and 76 percent indicated that they generally trust doctors.  There was a notable divide between age groups, however – 85 percent of jurors age 45 and older said they trust nurses, compared to 76 percent for those 44 and younger.  For doctors, 80 percent of older jurors indicate that they trust these providers, compared to 74 percent of younger respondents.

Based on our recent focus groups, we expect to see younger jurors’ numbers rising for both of these questions.  Perhaps most striking has been the increased empathy for caregivers related to the fact that they have chosen to subject themselves and their families to the risk of infection so they can care for their patients.

• “They’re literally putting their lives on the line.”
• “No doubt, everyone who works on the front lines is affected mentally and emotionally…. You really start respecting and caring for them more.”
• “It just made me respect the healthcare field a lot more…. It’s not all just giving people meds; it’s also keeping yourself safe and keeping those around you safe.”

It is difficult to tell whether this reputation boost will be permanent, or whether it will carry over to faceless but related entities such as hospitals or pharmaceutical companies.  But it’s clear that at least for now, juror sympathies lie with frontline healthcare workers.

Pivoting During a Pandemic (Updated June 1, 2020)

We plan to resume in-person research later this month in some areas, but we’ll continue conducting virtual focus groups in many jurisdictions.  This includes areas with an older population that is higher risk, or places with extremely restrictive social distancing policies limiting the number of people in a room.

Our virtual focus groups have provided our clients a meaningful way to evaluate cases and develop mediation and trial strategy.  Through Zoom, we can conduct focus groups that provide 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 it works.