Jury Impact – Page 13

When Presenting to Jurors, Sometimes Less is More

Jury Impact 25 September, 2013 no responses

When putting together your case for trial, it can be tempting to squeeze in every piece of information you see as favorable (no matter how minor), on the theory that the more favorable evidence you present, the more the scales of justice will tip toward your side.

It’s a logical way to look at things, but that doesn’t mean it’s the most effective. In the real world of courtrooms, the side with the most facts doesn’t always win. Instead, it’s typically the side with the simpler story.

In fact, academic research and our own experience demonstrate you can actually hurt your case by following the “more is better” philosophy and trying to “win on points” by introducing evidence that may only be marginally or mildly favorable to your case.

That’s because research shows that audiences – whether jurors or consumers – don’t simply “add up” all the supposed favorable pieces of information presented to them. Instead, they average them, and weaker or less favorable ones bring the strong ones down.

In one consumer study, researchers ran two advertisements about the same hotel – one ad mentioned the hotel’s five-star pool, and the other mentioned the five-star pool and the three-star restaurant. Consumers who saw the ad mentioning only the pool said they would pay $109 per night for the hotel, but those who saw the ad mentioning the fancy pool and the three-star restaurant would pay only $92 per night for the very same hotel. What the marketers hoped would prove to be a small benefit – a three-star restaurant – actually detracted from consumers’ perception of the hotel based on the pool alone.

It works the same in the courtroom. Overloading jurors with mildly favorable or marginal evidence won’t necessarily have the additive effect you might hope for – instead, it could detract from the stronger aspects of your case and bring down your average. Alternatively, we recommend focusing on the big picture and the aspects of your case that resonate most strongly with jurors.

The most important thing is to present a clear, concise thematic umbrella under which jurors can place your strongest facts, numbers or arguments. A good presentation will arm jurors with a handful of quick and easily articulated points, which can come in handy when information overload inevitably strikes toward the end of trial.

That’s why a key part of our focus group and online research processes is to have jurors rate the effectiveness of your arguments. We want to identify not only the home-run arguments that should feature prominently in your case, but also the low-scoring ones that failed to resonate with jurors and could actually hurt you.

If you’d like to find out about research to identify your case’s “five-star pools” and “three-star restaurants” before trial, please contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

When It Comes to Damages, Sometimes Mum Is Not The Word

Jury Impact 18 September, 2013 no responses

A lot of defense lawyers we’ve worked with over the years are reluctant to suggest appropriate damages figures to jurors at the end of a trial, figuring that to do so could legitimize the plaintiff’s claim and lend it more credibility than it otherwise might have.

But if the opposition is going to offer the jury a suggested number, we highly recommend you do so, too.

A nationwide survey we conducted last year found 59 percent of prospective jurors believe plaintiffs almost always inflate their damages figures, and 60 percent agreed the defense almost always lowballs its numbers. The result: an astonishing 70 percent of respondents said they would handle this by simply averaging the two sides’ numbers.

This plays out in the real world, too. We have interviewed jurors after dozens of trials, and these jurors nearly always tell us that during deliberations, there are a few jurors siding with the plaintiff’s numbers and a few with the defense’s, so the final award is a number somewhere in the middle – even if the judge’s instructions explicitly forbade averaging individuals’ awards.

We’ve found most jurors don’t want to give plaintiffs an undeserved windfall, but if you refuse to play ball and insist “zero” is the number even if they find against you, you’re not giving them much choice. By offering a competing view of what would be fair and just, you can help limit the damages should the jury find against you.

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FYI, for those of you attending DRI’s Nursing Home/ALF Litigation seminar in Scottsdale this week, Jury Impact Senior Vice President Claire Luna will be presenting Thursday afternoon. Please make sure to attend her hourlong talk on the myths and realities of jury selection and demographics, with brand-new findings based on a national survey focused on assisted living facilities that we conducted just for this seminar.

If your organization is interested in inviting a Jury Impact staff member to speak at one of your upcoming events or through a webinar, please contact Claire at cluna@juryimpact.net or 714.754.1010.

Jurors Don’t Hate Insurance Companies As Much As You Might Think – And Other Assumptions We’ve Debunked

Jury Impact 11 September, 2013 no responses

We recently conducted focus groups for a case where one of the parties is an insurance company. Going in, the conventional wisdom was that due to extremely negative juror opinions of large insurance carriers, it will be nearly impossible to get the jury on their side. And especially given the sheer number of insurance policies the average person holds – some combination of auto, homeowner, life, health, etc. – it was anticipated that negative experiences and biases against insurance companies would overwhelm the discussion and prevent jurors from giving both sides a fair shake.

Furthermore, the case facts involved an insurance company engaging in what could be viewed as “stereotypical” insurer behavior (in this case, denying a large claim less than 48 hours after it was filed), but after digging deeper we learned something surprising. Although jurors’ negative experiences and perceptions of “insurance companies” in general were out in force, most indicated they were satisfied with their own insurers – and throughout the groups we observed their ability to remain equally open-minded to the insurance company’s story.

Although the majority of focus group participants found against the insurance carrier during final verdicts, the research confirmed it was not due to negative perceptions of insurance companies or dogmatic anti-insurance sentiment. In fact, the lowest-scoring defense arguments during both sessions centered on some form of “insurance bashing” that attempted to appeal what we had believed beforehand were jurors’ negative perceptions of insurance companies.

We’ve found this in recent healthcare surveys as well. Even jurors with negative opinions of monolithic health insurance companies – whether driven by horror stories in the press, personal experience or the ongoing debate over the Affordable Care Act – were generally happy with their own insurer/insured relationships.

The reason we highlight this seemingly counterintuitive disparity between people who hate insurance companies in general but love theirs in particular, is that it reinforces the importance of trial teams not assuming anything about your specific jury pool.

Whatever you think about the Affordable Care Act/”Obamacare,” it’s worth pointing out that one of the central themes of President Obama’s pitch was that those with health insurance could keep their existing policies, and patients could still see their own doctors. This is a key example of researching and understanding your audience’s pre-existing perceptions, fears, misconceptions and life experiences beforehand, and addressing them up front to ensure that audience keeps an open mind.

Whether your case involves a particular hospital or long-term care facility, a large corporation, a baseball team or even a cruise line, we believe it’s always worth digging below the surface of conventional wisdom to uncover biases and experiences that work both for and against your client, before ever setting foot in a courtroom.

If you’d like our advice on potential predispositions for one of your pending cases, contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

“Residents Aren’t Real Doctors”: A Real Juror Problem

Jury Impact 4 September, 2013 no responses

During our political focus groups, one of the ways we uncover subtle prejudices is to ask voters if they believe their neighbor would vote for a minority/female/gay/pro-choice candidate. Oftentimes, voters reluctant to admit their own biases will say something along the lines of, “Well, I don’t have a problem with _____, but I don’t think my neighbor would ever vote for something like that.”

The same holds true for juror feelings on resident doctors. Although jurors like the idea of teaching hospitals and residents in theory, when it comes to being treated by one they balk.

We see jurors all over the country refer to residents as “students,” “rookies,” “trainees” and, most troublingly, “not real doctors.” Since residents are oftentimes involved in the care provided at the center of the cases we work on, this can be a real problem.

An analysis of our focus group case history shows exactly how damaging this anti-resident bias is to the defense. Cases involving a resident (or fellow) were 1.5 times more likely to return a plaintiff verdict than cases that did not. These cases involving a resident returned a plaintiff verdict 58.8% of the time, as opposed to non-resident cases, which returned a plaintiff verdict only 37.8% of the time.

Case Verdicts

These numbers show experience and training matter to jurors, especially when it comes to patient safety. Jurors often have unrealistic expectations of care, and having a “trainee” or “student” doctor providing care falls below those expectations. They often believe an experienced attending might have made different decisions – especially in a “high-risk” situation – even if the evidence shows an attending doctor approved the treatment plan.

So how does one overcome this negative perception regarding residents’ experience and training? We suggest discussing just that – their experience and training.

An expert witness (who works as an attending) discussing the role of residents and their training could be a helpful way to mitigate the bias if you have a resident involved in your case. For first- or second-year residents, the expert can emphasize the number of years spent in medical school, the number of clinical rotations they participated in prior to receiving their license and the attending-resident relationship. For third- and fourth-year residents, it will be helpful to highlight the 80 hours per week of experience they have accumulated during their residency, the number of patients they have treated and any accolades they have received.

Depending on the situation, the resident doctor him- or herself may be able to assuage jurors’ concerns. Most residents will be seasoned attendings by the time a lawsuit makes it to trial, and the defense may benefit from seeing first-hand the doctor’s maturity, confidence and experience. The resident can also reassure jurors that he or she closely consulted the attending at all times.

Finally, we always suggest trying to turn negatives into positives. Often in the same breath jurors express concern about resident doctors’ lack of experience, we have also consistently heard praise for their enthusiasm, listening skills and up-to-date training. “They know all the latest medicine and understand the new technology,” one juror told us recently. “Those are huge advantages over an old-timer who thinks he knows everything.”

We have found negative biases such as those about resident doctors can be overcome if you identify them early and address them directly. Whether you’re concerned about negative juror predispositions or would like consultation on another aspect of your case, feel free to contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

They Can’t All Be LeBron: Reluctant Jurors Could Make or Break Your Case

Jury Impact 28 August, 2013 no responses

The Internet was abuzz recently with stories about basketball superstar LeBron James and Sen. John McCain reporting for jury duty in their hometowns. Both men said they were glad to do their civic duty (though neither was selected for a trial).

Unfortunately, the odds are any jury pool you face will have members who are not as civic-minded as LeBron and Sen. McCain – and some might be downright resentful about being there. How you handle these reluctant jurors during jury selection and trial (if they’re seated) could have a significant impact on whether you win or lose.

The numbers confirm what you already know – many potential jurors just don’t want to be there. A nationwide survey we conducted recently found that 54 percent of respondents said they would be happy to serve on a jury, 36 percent said they would fulfill their obligation only grudgingly and the remaining 10 percent would refuse to serve.

That means between one-third and one-half of your empaneled jury might be unhappy to be selected. A Pennsylvania woman recently was so angry upon getting selected that she cursed as she was walking to the jury box – and was promptly dismissed and fined $500 by the judge. Just last week, when we were assisting with jury selection in a case that ended up settling at the last minute, a woman refused to mail her questionnaire and instead sent an angry letter – and a copy of her Xanax prescription – accusing the court system of causing her anxiety levels to shoot through the roof.

There is even a whole article on the web site WikiHow about how to get out of jury duty, ranging from the routine (claim financial hardship) to the novel (refuse to take the oath to decide the case based only on the facts presented in court).

So what’s a lawyer to do? Through our years of helping choose juries and monitoring trials, we’ve assembled the following recommendations for dealing with reluctant or hostile jurors:

An angry juror is nobody’s friend – Jurors who are angry about being selected are unpredictable, and their attitude could poison the panel. Even if you think that juror might be likely to support your side, we recommend letting the juror go if you can.
Don’t be the one the angry juror blames – Reluctant jurors usually say things they hope will get them excused, such as professing bias. You may be tempted to rehabilitate a juror you think would likely support you, but that juror will likely blame you – and your client – for his inconvenience. If a juror is sending clear signs of a bad attitude, just let him go.
Don’t waste jurors’ time – Let jurors know you want to be respectful of their time. Don’t use an hour for your opening if 40 minutes will do. Don’t waste time with jokes or small talk with witnesses. Don’t object ad nauseum just because you can.
Shorten your case if you can – Attorneys often feel the need to have as many experts testify at trial as the opposition, but we encourage you to use as only many as you need and avoid repetitive testimony. More is not always better.

A final note – beware as well of potential jurors jumping out of their seats with eagerness to serve. A juror who really wants to be on your jury might really have a secret axe to grind, so it’s worth looking deeper into their motivations.

If you’d like our advice on what jurors might be best for your case and how to streamline your courtroom presentation, contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

Jurors Expect High-Tech Perfection in This Age of Technology Marvels

Jury Impact 21 August, 2013 no responses

A person’s entire criminal history available at the touch of a button. Surveillance video footage recorded around the clock – and kept for perpetuity. Medical records from multiple facilities in multiple states consolidated into one easy-to-review chart accessible by any caregiver who treats that patient.

These are the kinds of unrealistic expectations jurors have in this era of James Bond, smartphones and Mission Impossible, and trying to normalize whatever technology is available at your facility can further antagonize jurors who insist the failure to implement whatever key system they think you should have is negligence in itself.

During focus groups for a recent case, jurors faulted a company because its background check on a potential employee – who later committed a crime at the workplace – failed to uncover previous arrests that jurors believed were a “red flag.” Nearly all jurors agreed an adequate background check “should have” discovered this information, despite the fact many arrests don’t lead to convictions and aren’t reported to the databases used for background checks.

Similarly, jurors in a medical malpractice case faulted a hospital for not knowing about a patient’s previous medical condition (even though the patient and his family failed to disclose it to caregivers). These jurors erroneously believed caregivers could have used some mythical centralized database to access all of the patient’s medical records throughout his entire lifetime.

In both of these cases, jurors’ unrealistic expectations of information technology led them to believe defendants could and should have known things they had no way of knowing.

In other cases, these high expectations can help the defense. In one recent case, jurors faulted a parent for not bringing her child to the hospital soon enough when she started displaying symptoms they believed the mother should have recognized as dangerous – if she had “just Googled it.” In an era when there is so much information at our fingertips, jurors often expect plaintiffs to take the step of looking something up on the Internet or even emailing their doctor to ask a question.

Whether you’re representing a plaintiff or defendant, we believe it is important to address with the jury the capabilities and limitations of information technology. You may even need to rely on experts to educate jurors about how systems work and what they are and are not capable of. Whatever you do, you can’t assume jurors’ expectations are grounded in reality – not when movies and television are establishing the technology baseline, and those expectations are being reinforced by how much information actually is available at their fingertips.

If you’d like our perspective on how to manage juror expectations in your case, we’d be happy to help. Contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

We want to hear from you

All of our observations about jurors and trials come while working side by side with our clients. Now, we’d like to open this space up to you. Have a question you’d like our take on? Fire away, and we’ll print the question (anonymously if you wish) and our answer in an issue of this newsletter. Have you run across an interesting issue or made an observation you think your colleagues might like to hear about? Send it along and we’ll share it with our readers. Don’t be shy – we want to hear from you! Email us at cluna@juryimpact.net.

During Trial, You’re Never Off Stage

Jury Impact 14 August, 2013 no responses

We heard a funny story recently about a personal-injury plaintiff who lost his case because a juror saw him running across the street in the morning before court when he supposedly could only walk with a cane. It’s the kind of courtroom gold lawyers hope to find when they hire a private detective to tail someone from the other side.

But it’s worth remembering these revelations can go both ways, and jurors are watching the lawyers during trial as closely as they’re watching the parties. Once you leave your house to head to the courtroom that first day of trial, you’re never off stage.

Case in point: One of the best trial lawyers we know told us about the time he tried a case out of state against local counsel and brought his suitcase into the courtroom because he had a flight to catch. Opposing counsel spotted the offending luggage and later accused him of being a carpetbagger right in front of the jury. Our friend won that trial, but he hasn’t brought his luggage to court since.

Of course, every lawyer worth his salt knows all eyes are on him once he sets foot in the courtroom, or even in the hallway outside. But what about in the parking lot? You might want to think twice about cutting someone off for a parking space in the courthouse lot, because that person could be your foreman. And it would be a good idea to lay off the gas pedal since it could be a juror you’re tailgating.

These days, you’ve got the virtual world to worry about as well. A survey we conducted last year found 72 percent of jury-eligible Americans believe it is acceptable for empaneled jurors to do Internet research related to a case they are hearing, and you and your associates’ Facebook profiles could very well be among their destinations.

You’ve likely counseled the younger lawyers in your office not to post pictures of themselves partying or behaving poorly to the public part of their Facebook profiles – and if you haven’t, you should – but have you thought about the impression jurors could take away from a photo of you and your brand-new sailboat on vacation in the Bahamas? If you’ve made a lot of money through your work, good for you – but jurors don’t need to know that. Your best bet is to set your profile (including your profile photos!) to “private” so inquisitive jurors have nothing to find.

The same goes for your clients – tell them to make sure their Facebook profiles and other social media are set to “private,” and ask them to drive the family minivan to court rather than the Tesla. You never know who’s watching and what their biases are.

You may not even realize what information about you and your clients is there for the world – and jurors – to see. If you’d like us to conduct a social media audit and help you put your best foot forward ahead of your next trial, contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

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Author: Jury Impact