We tell our clients all the time that it’s much easier to convince someone of something they already believe.  Recent research is backing up this fundamental finding, with science showing the human brain actually processes information differently depending on people’s preconceived notions.

Researchers conducted a study where people were briefed with an introduction of two causal theories, one plausible and one implausible, so they were primed to believe one theory.  Participants were then given information supporting either theory to test how they interpreted the different evidence.

MRI imaging showed when people were presented with evidence consistent with their beliefs, the brain region associated with learning and memory was activated.  When they were presented with evidence that was inconsistent with their beliefs, the brain region associated with error detection and conflict resolution was stimulated.  Researchers concluded people’s beliefs act as a “biological filter” when processing information.  (Read the full article here: http://rstb.royalsocietypublishing.org/content/359/1451/1749.full.pdf)

This means that during trial, jurors may not know the degree to which their beliefs are impacting the way they interpret evidence.  When jurors hear or see something that doesn’t coincide with their beliefs, the brain will activate error detection instead of their memory, causing them to discredit the information from the outset.  This “biological filter” makes it difficult for jurors to remain unbiased and set aside their beliefs as they judge causal events in your case.

Overcoming biology may seem like a daunting task, but understanding these beliefs before trial will help you find ways to present your evidence so it aligns with your jurors’ preconceptions.  The science – as well as our own experience – shows us it’s easier to convince people of causal claims if it’s something you want to support rather than discredit.

One example of this is if you have a case involving the decision to perform a C-section.  Rather than focusing solely on mitigating the preconceived notion many jurors hold of performing a “routine” C-section “just in case,” play to the other common predisposition that “all surgeries carry some risk” and “there are too many C-sections being performed today.”  By reiterating the risks of all surgeries, jurors’ brains will interpret it as learning why doctors waited to perform a C-section until it was absolutely necessary to do so rather than detecting an error that C-sections are “routine” and the doctor’s actions were negligent.

The takeaway is to find what aspects of your case already resonate with jurors’ pre-existing opinions and present the evidence in a way that bolsters those opinions rather than opposes them.  If you’re looking for ways to present your evidence in a way that will overcome these “biological filters,” contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714-754-1010.

There are perhaps no two words that strike fear in a med-mal defense lawyer’s heart like the phrase “never event.”  The message is clear – these events should “never” happen, and if they do, it’s your client’s fault.

Defending a case involving “never events” is a tall order, in part because so many of the “never events” listed by the National Quality Forum (NQF) and Centers for Medicare and Medicaid Services (CMS) – the two primary organizations that publish the lists – are truly events that should never happen, such as performing surgery on the wrong patient or discharging a newborn to the wrong person.  The fact the complication involved in your case – whatever it may be – is on the same list as these obviously negligent mistakes allows a plaintiff’s lawyer to paint what happened in your case in a very unflattering light.

Of course, you know several so-called “never events” are not always preventable and don’t necessarily indicate anyone was negligent.  This is particularly true of relatively common occurrences such as pressure ulcers, patient falls and post-surgical infections.  Patients with poor circulation who are immobile for long periods of time will sometimes get pressure ulcers no matter what preventative steps are taken, just as surgical sites will sometimes get infected.

We often find during focus groups that with bad medical outcomes come the criticism that “more tests” would have been the solution.  With the benefit of hindsight, jurors insist doctors should have had enough foresight to predict an extra test would have provided the answer, and at the very least could have provided a solid defense if something were to ultimately go wrong.

As we have observed across the country, jurors tend to favor defensive medicine and the idea of “just ordering more tests,” but rarely consider the potential drawbacks.