Jury Impact – Page 10

Longer Labor and Fewer C-sections – Challenging Conventional Wisdom

Jury Impact 12 March, 2014 no responses

During thousands of juror interviews for dozens of cases over the years, we have observed one of the most widespread – almost universal – juror preconceptions is a belief C-sections are a safe, easy alternative to a long, painful labor that can be dangerous for both mother and baby. Instead of appreciating C-sections as the risky, major abdominal surgeries they are, many jurors considering “bad baby” lawsuits suggest it would be safer to perform a surgical delivery the moment the road to delivery gets even a little a bit bumpy.

Fortunately, things are starting to change, and recent trends and hard data are providing more ammunition to defend doctors who opt not to perform a C-section – and to reshape juror perceptions that C-sections are a “sure thing.”

For starters, the American College of Obstetrics and Gynecology (ACOG) and the Society of Maternal-Fetal Medicine recently released new guidelines for how long mothers should labor before undergoing a C-section. Previously, labor was considered “active” at 4 cm dilation and mothers were only allowed to push for two hours maximum before a C-section was recommended. Under the new guidelines, active labor doesn’t begin until 6 cm and mothers can push for up to three hours (or more with anesthesia or other pain management). The reason for this change is simple: Longer labors often produce healthier babies as contractions do their work and squeeze fluid from the baby’s lungs to clear them for their first breath.

There has also been a drastic – and quite recent – decline in the rate of early C-sections(those performed at 37 or 38 weeks gestation for non-medical reasons). These births are down to just 4.6 percent in 2013 from 17 percent in 2010. Doctors are increasingly holding off on C-sections until they are medically necessary, in part because there is growing recognition that babies born early have more issues with breathing, feeding and staying warm.

The takeaway is clear: A new norm is emerging in which doctors and medical authorities prefer to allow longer labors and avoid unnecessary C-sections because it provides better outcomes for babies, not just fewer risks for mothers. This highlights the importance of educating jurors about these trends and helping them overcome decades of conventional wisdom about when a surgical delivery is appropriate.

If you have a birth injury case that could use a new perspective, contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net to find out how we can help.

Nurses Ace the Ethics Evaluation

Jury Impact 5 March, 2014 no responses

Gallup recently released its poll on honesty and ethicsratings in professions, and once again medical professionals topped the list. In fact, three of the top five professions Americans rated as most honest and ethical were nurses, pharmacists and medical doctors (grade school teachers and military officers were the others) – and nurses received by far the highest marks.

An overwhelming 82 percent of respondents rated the honesty and ethical standards of nurses as high or very high – a 12-percentage point lead over the second-highest profession – and 69 percent said the same of doctors. Interestingly, medical professionals rated highly across political party and age lines – divides where we often observe big disagreements among jurors.

This isn’t a guarantee jurors will believe the caregivers you’re defending and discount the plaintiff’s story – in fact, our own surveys have shown jurors tend to believe a patient’s version of events slightly more than caregivers’ – but we still recommend using this widespread positive perception of medical professionals’ ethics and morality to your advantage.

Beginning during voir dire, you might consider polling the jury pool about how honest they find medical professionals, and if they believe any have tried to act unethically toward them. Along with weeding out any potential jurors with axes to grind, you’ll use the power of peer opinion to make the point that doctors and nurses are widely trusted and respected. Asking jurors the reasons they tend to trust caregivers could elicit stories underscoring the fact that almost all doctors and nurses work tirelessly to do their best for patients.

Once you have your caregiver witnesses on the stand during trial, talk to them about why they got into medicine and the role of trust in the caregiver-patient relationship. This will help humanize your clients and reinforce the perception they’re honest and ethical, even if there are potentially lapses in care. Jurors are more likely to forgive an honest mistake if they have faith in the caregivers’ intentions.

Although Americans’ widespread trust in medical professionals is no advantage. If you have a case where honesty and ethics are a central concern – or you want to discuss jurors’ perceptions on other issues – please contact us at 714-754-1010 or cluna@juryimpact.net.

What Kind of Story Does Your Documentation Tell?

Jury Impact 26 February, 2014 no responses

We often work with hospital nursing and risk managers eager for tips about how to convey to employees the importance of documentation. Sometimes the old maxim, “If it isn’t documented, it didn’t happen” doesn’t fully resonate with caregivers until they’re suddenly on the wrong side of an overzealous plaintiff’s attorney or a suspicious group of jurors.

We encourage caregivers to think of the documentation as “the story” of the patient’s care – and, equally, the story of your care of the patient. Should someone months or years later want to hear that story, all the necessary pieces should be there in the medical record.

The question to put to caregivers is, “What kind of story do you want to tell?”

Medical records with gaps of several hours where nothing is documented can imply nothing happened and there was no care provided. But jurors should understand that even during relatively uneventful periods in a patient’s care, things are happening – vital signs are being taken, drugs given, therapies provided, doctors consulted and family members updated.

Documenting even seemingly routine events – such as a nurse sticking her head into a patient’s room to check in – tells the story of an attentive caregiver paying close attention to the patient. This documentation need not always be lengthy, detailed or time-consuming; sometimes noting a time and adding a few words are enough to fill in the blanks in the story and bolster a trial timeline.

Some may think of this type of practice as “defensive documentation” – and maybe it is – but this is the world we live in. If each patient’s medical record is a story, then failing to document the “routine” and the “minor” is like tearing out pages – and leaving the real story open to interpretation.

If you have a tricky case involving incomplete documentation, or would like to discuss how we can present to your group on this subject, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.

Body Language: When Every Juror’s An Expert

Jury Impact 19 February, 2014 no responses

We’ve written before in this space about how jurors’ experiences watching television shows such as Law and Order and CSIaffect their expectations about everything from DNA testing to courtroom procedure. It’s a dangerous phenomenon that makes jurors feel like they’re experts in how things should and shouldn’t work in a legal case.

We’ve recently noticed another less-than-helpful impact of jurors’ experience with these shows – the tendency to think they’re experts on body language and can “tell” when a witness is lying.

In a recent focus group, one juror watched two minutes of deposition video and proclaimed the witness a liar, saying: “I’ve watched a lot of CSIs, and when you’re talking, you should look at the camera.” During another recent session, a juror explained his low credibility rating for a witness: “He scratched his nose, and that’s indicative of lying.”

Or, you know, his nose itched.

Some people take this supposed ability to “read” body language too far, but there is no denying a person’s use of gestures and mannerisms affects whether they come across as credible. A recent study by psychologists at Northeastern University, MIT and Cornell found the frequent use of hand touching, face touching, crossing arms and leaning away – in combination – made people seem less trustworthy to their peers. Even a robot that engaged in these cues was judged as less trustworthy than a robot that did not. (Read about the study here.)

That’s why a significant part of our witness preparation process focuses on non-verbal communication – we know appearing honest and comfortable is as important as what the witness says. Although we don’t place too much faith in any one gesture – such as equating scratching your nose with lying – we strive to eliminate distracting mannerisms and help witnesses come across as poised, forthcoming and confident.

We’ve prepped hundreds of witnesses – from parking lot attendants to CEOs – for deposition and trial. If you’ve got a witness you think could use help, we’d encourage you to consider a preparation session before he or she commits a bad performance on videotape that can be shown to trial jurors. Please contact us at cluna@juryimpact.net or 714-754-1010 to learn more about how we can help.

PowerPoint Perils and Pointers

Jury Impact 5 February, 2014 no responses

Jury Impact is occasionally asked to speak at events and conferences to discuss our experiences, emerging trends and tips for effective trial and mediation strategy. We pride ourselves on our concise, informative – and, most of all, interesting – presentations.

However, anyone who has ever attended a trial lasting multiple weeks, a large industry conference or even a weekly staff meeting knows not all presentations are created equal. If you have ever instinctually cringed at the very words “PowerPoint” – suspecting a longwinded, text-heavy, monotonous slide show was coming up – then you understand the hesitancy some trial teams have when it comes to using presentation software and digital projectors.

So is it best to just avoid using PowerPoint to avoid the general loathing of “slide shows?” Not at all. In fact, we’ve learned jurors actually expect this technology in the courtroom, and we believe it’s an essential component of storytelling.

In a previous “Things…”article we mentioned a trial where plaintiff’s counsel, in an attempt to seem more “down home” and make the defense team seem like city slickers with fancy, big-budget tech gear, relied on archaic overhead transparencies and a disorganized pile of poster boards to present their theory. During exit interviews, jurors (most of whom owned “fancy” touchscreen smartphones) were shocked by the lack of technology, and said the defense team’s use of programs such as TrialMax and the ability to find, display and enlarge records, by contrast, seemed “forthcoming” and demonstrated they had “nothing to hide.”

When the bulk of the U.S. population has Internet access and many access it through smartphones, we have found there is no advantage to scaling back your use of technology to avoid seeming “intimidating.”

In fact, research has shown that not only do jurors appreciate when PowerPoint and other presentation programs are utilized, their verdicts favor the use of technology as well. This study revealed that when the plaintiff used PowerPoint and the defense did not, jurors tended to favor the plaintiff, and when the defense used it but the plaintiff did not, the jury favored the defense. However, when both sides used a PowerPoint presentation, the playing field evened out and this was not a primary factor in decision-making.

So, what’s the solution? We’ve found the key is treating programs such as PowerPoint and TrialMax as the side dish to your main course – you want your arguments and evidence to still be the primary focal point, and allow the slide presentation to enhance, and reinforce, what the jury sees and hears.

After monitoring many trials, we’ve had the chance to see what works and what doesn’t. Some tips: Keep the text on each slide as short as possible (one-line bullet points, for example).
Consider quality over quantity. After sitting (and slouching, and dozing) through multiple 80-plus-slide presentations during opening statements, we have found 30 to 35 slides is the maximum to maintain juror interest.
Use clear fonts without frilly edges (something like Arial or Helvetica is easy to see at a distance).
Make sure at least two or three other people edit your slides – even a couple of typos can be distracting and erode your credibility.
Skip the “funny” clip art and animations, and save them for snarky office kitchen notes.

If you would like assistance in creating a captivating, succinct trial presentation or would like to test the effectiveness of audiovisuals on a sample jury prior to trial, please email Senior Vice President Claire Luna at cluna@juryimpact.net or call 714.754.1010.

The Winning Game Changer in Your Case

Jury Impact 29 January, 2014 no responses

The Super Bowl is this weekend, and football teams and fans have seen some unexpected plays that have changed whether their teams made it into the playoffs. Interceptions, long field-goal kicks and last-minute touchdowns have all put fans and players on the edge of their seat this season. Even college football saw a miracle catch in November when Ricardo Louis of the University of Auburn caught a Hail Mary, 73-yard pass that bounced off a defender, and raced to the end zone for a 43-38 victory over Georgia State.

A single play can change the course of a game and give momentum to either side. The same could be said for your case. Oftentimes, there is one piece of evidence one side is holding onto that could change the way jurors look at a case.

The plaintiff may show a crucial note in the medical records that caregivers may have overlooked, or a company supervisor’s Facebook post that demonstrates a little too much affection for the physical attributes of the women who work for him. Jurors could easily see these pieces of evidence as red flags that an injury could have been prevented or someone should have been aware of ongoing harassment.

If you are going up against a plaintiff’s game changer, we recommend emphasizing actions your client did take with the information they had at the time. Educate jurors about the thorough investigation behind the complaint or the timeline of medical decisions caregivers made in response to a patient’s symptoms, despite a missing note in the medical records. This will help establish a pattern of reasonable actions, mitigating the “red flag” perception. And with the other example, note that this supervisor’s Facebook postings only became a matter of record after a lawsuit was filed, and none of his colleagues or supervisors were aware he treated women poorly.

However, there is also the strong possibility that what you believe is a game changer, jurors will care little about. That’s why focus group research can be so important in identifying what jurors tell us are the pieces of information that stand out. For example, participants in a recent focus group completely disregarded one piece of information we had predicted would be a key to the case – and then turned another fact we had previously assumed would have only minor impact into the defense’s best alternate causation story.

If you have a case involving some potential game changers and want our perspective on how jurors will evaluate them, please contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

Redefining the American Dream

Jury Impact 22 January, 2014 no responses

Last week The Onion published a satirical article suggesting the new “American Dream” is a substantial out-of-court settlement. Funny? Yes. Timely? Sure, although Martin Luther King Jr. probably wouldn’t have been happy about this development. But true? Absolutely – and more so than you might realize.

Last year, in our national survey of more than 1,200 jury-eligible respondents, six percent of Americans admitted they “actively look for opportunities in their daily lives to file a lawsuit.” While not a particularly riveting number on its own (we actually expected it to be higher, given the feedback gleaned during some of our focus group research), once we dug deeper into the data we found some demographic groups are much more inclined to look at a slip-and-fall or a scalding coffee spill as the key to a big payout and thus an easier life.

Breaking down the demographics showed us those most likely to be on the lookout for lawsuit opportunities in their daily lives were:

Male (10 percent agreed)
Have children at home (11 percent)
Live in an urban versus suburban or rural area (13 percent)
Hispanic (14 percent), followed by Asian and African-American respondents at 9 percent each
Younger than 40 (15 percent)
Currently serve in the military (an astounding 44 percent)

We also noted those who agreed with this question were also much more likely to display plaintiff-leaning tendencies in their responses to other questions in this survey, such as believing a hospital is responsible for any negative outcomes under its roof – regardless of whether there was negligence involved. Adding this question to jury questionnaires or verbal voir dire can thus be a helpful tool to quickly identify the most plaintiff-oriented jurors in your venire, as well as those most comfortable awarding money even if they aren’t convinced the defendants did anything wrong.

This analysis also demonstrates our ability to mine the data we collect and identify trends that may be useful to you as you analyze the jury pool for an upcoming case. If you’d like to talk with us about our observations and research findings for a specific area of the country or about a specific issue, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

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Author: Jury Impact