The era of Zoom is upon us.  If you hadn’t participated in a Zoom videoconference before the coronavirus pandemic, the odds are you have by now – or will be very soon.

In fact, a number of court jurisdictions at all levels – including the U.S. District Court for the Northern District of California – have begun holding court proceedings via Zoom, and the Collin County District Court in Texas will begin holding jury trials using the platform.

Although it’s fair to assume that live court proceedings are not suddenly a thing of the past, it also seems likely that Zoom and similar platforms will continue to have their place.  For example, witnesses who are older or otherwise high risk for the virus might prefer to appear virtually rather than spend hours in a public courtroom.  It’s also not hard to imagine that if there are future flare-ups of the virus, more courts might choose to hold trials entirely by Zoom rather than close down the courts for weeks.

Even after the coronavirus is a distant memory, it may be that Zoom becomes the preferred method to receive testimony from witnesses who can’t appear in person, eliminating the drudgery of watching a multiple-hour, prerecorded witness examination – which jurors call “nap time.”

As a communication tool, Zoom has its pros and cons.  Although it lacks the immediacy of seeing someone face to face, it also opens up new opportunities for savvy attorneys and witnesses to spice up the presentation of witnesses who cannot be in court in person.  For example, the screen-sharing feature could allow an expert radiologist to essentially project MRI images directly onto viewers’ screens and use the computer’s tools to call out areas of interest, which is preferable to projecting a grainy image onto a courtroom screen 30 feet away from the jury and highlighting with a shaky laser pointer.  Similarly, showing jurors documents could become more seamless and less clunky than it has sometimes been in the past.

However, not every witness is going to shine on Zoom.  The platform could accentuate the dullness of less dynamic witnesses, and the less technologically savvy could struggle to make his or her appearance as smooth and confident as you’d like.  When you choose expert witnesses for virtual testimony, you may want to pay more attention that usual to personal charisma and the ability to incorporate interesting visuals into a presentation.  You might even want to dig up old conference presentation videos to see who is more – or less – capable of being creative and holding an audience’s attention.

Change is never easy, but it always presents new opportunities to those who embrace it.  We’re here to help you adapt.  If you have witness video you’d like to test out with a Zoom panel of real jurors, or need to conduct a “dry run” with a witness via Zoom, we’d love to hear from you.  Contact Partner/Senior Vice President Claire Luna at cluna@juryimpact.net to find out how we can help.

Our Virtual Focus Groups Deliver Real Insights

One of our clients’ main concerns with virtual focus groups is that the discussion won’t be as deep or meaningful as you have come to expect from our research sessions.  However, we have found that jurors are just as eager to share personal information and nuanced opinions with others – even when those others are faces on a computer screen grid.

During a focus group last week with New York City residents, we asked if there are any good things that might come out of this pandemic.  Some of the participants’ insights were profound and revealing, as demonstrated in this two-minute clip.

If there are any concerns about the viability of in-person research, but you still have a need for research, please reach out to talk with us about our virtual focus groups.  Juror predispositions, case facts, arguments, exhibits, 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.

In baseball terms, “putting some mustard on it” usually refers to a pitcher adding some heat to his throws.  This term is also sometimes used in the real estate industry, especially in the context of a bidding-war situation in which a stronger offer is needed to make sure you get the house.  Conversely, as a home seller, including the appliances in the asking price can be a version of adding a little mustard to make the deal more attractive.

This phenomenon also applies to the courtroom, as jurors often add “extras” to their awards, resulting in amounts in excess of what the plaintiff’s attorney is actually asking for.  We recently conducted a national survey of 500 jury-eligible participants to explore the factors behind jurors’ desire to put some mustard on their awards.

We have found that most jurors assume plaintiff attorneys take roughly 30 percent of any monetary awards.  As a result, jurors intent on ensuring the plaintiff is truly “made whole” will account for this when coming up with their numbers.  In our nationwide survey, 67 percent of respondents said they would most likely award more money to compensate for attorney fees – which is highly consistent with our research and trial monitoring findings.

Furthermore, it is no secret that medical costs continue to increase, which jurors absolutely factor into their awards.  This prompts jurors to add additional money to ensure an injured plaintiff doesn’t run out of money due to medical cost inflation.  In our recent survey, a strong majority 70 percent said they would award more to a plaintiff “because medical costs are rising.”

We all know that as cost inflation marches on, so does the advancement of medicine.  Notably, 66 percent of survey takers said they would award more money “in case there are unexpected medical advances.”  This provides some quantitative backing to what we frequently see in focus groups and in the courtroom – if a medical breakthrough results in an injured plaintiff becoming eligible for a new, but very expensive treatment, jurors want to make sure that person will have the financial resources to benefit from it.

The bottom line is that when jurors find in the plaintiff’s favor, most of them understandably want to make sure their award accounts for the uncertainties of the future – even if that means awarding more than what the plaintiff’s economist determines is “enough.”  Notably, 64 percent of our survey takers indicated they would award more than the plaintiff’s attorney’s suggested amount for medical expenses to make sure the injured person is taken care of, or “just in case.”

Good plaintiff attorneys play to this and remind jurors that a trial is the only chance the plaintiff will have to get compensation for an injury, unlawful termination or a broken contract.   This helps to perpetuate the notion that jurors need to “make it count” and ensure they award enough to guarantee the plaintiff won’t run out of money.

During more than 15 years of jury research, we have yet to find a way to overcome this widespread juror desire to “put a little mustard on it” when discussing damages.  Obviously the best way to deal with this phenomenon is to avoid the damages phase in the first place – highlighting the benefits of conducting jury research to find the most compelling themes, language and arguments to play to jurors’ innate sense of fairness.

If you have an upcoming case that could benefit from focus groups (live or virtual), or an online survey, please Contact Partner/Senior Vice President Claire Luna at cluna@juryimpact.net to find out more.

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Our first virtual focus group sessions happened last week, and the client reviews were phenomenal.  This client – who has now observed both our in-person and virtual research sessions – told us he would “unequivocally” recommend this approach and that “virtually nothing” was lost in the transition from in person to virtual.  With four more of these projects set for the coming weeks, we look forward to talking with you about this research alternative.

With all in-person projects postponed until June at the earliest, we have turned to virtual 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.

Through Zoom, 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 with virtual 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.

One of the primary challenges of defending a hospital in a medical malpractice case is the unavoidable fact that jurors are being asked to take sides between a largely faceless institution and a flesh-and-blood plaintiff who is likely to engender sympathy.  It often feels like the defense is starting at an automatic disadvantage.

Almost overnight, we all noticed the language shift in the email subject lines in our inboxes.  Comfort and safety became common buzzwords, and “we’re all in this together” became a familiar phrase.  We received dozens, if not hundreds, of messages touting companies’ soft pants, cozy blankets or hygienic takeout options.  New words such as quarantini*, covidiot** and super-spreader*** became part of our everyday language.

When it comes to how potential jurors evaluate a hospital, our surveys have consistently shown that national rankings can be irrelevant.  What matters more is whether the healthcare providers actually show that they care about their patients.  Specifically, the factors that produce a positive opinion are good communication, cleanliness and even food – not whether the hospital is famous for research, sponsors a big fundraiser or has the newest MRI machine.

For example, in a recent statewide survey of medical facilities owned by one of our clients, we asked respondents to rate all hospitals in their area from a one (the lowest-possible score) to a five, based on experience and/or reputation.  The survey was fielded via smartphone, and anyone who chose a one or five was given the opportunity to record themselves on video explaining their score.

Aside from being shocked at how many men fill out our online surveys while shirtless, we were surprised to observe just how few actually mentioned specifics about their treatment or the hospital’s overall reputation.  Instead, participants focused on cleanliness (“The place was spotless!”) and food (“We spent a lot of time in the cafeteria, and really didn’t mind it”).  It was fascinating how much the non-healthcare aspects of a hospital shape opinions of a facility as a whole.  One man noted, “The facilities are extremely clean.  Even down to the food.  It goes to show that they definitely care about every aspect of their atmosphere.”

Still, the main component of juror opinions stemmed from the amount of attention caregivers provided to them or their loved ones.  Over and over, respondents either praised or criticized how healthcare professionals handled their concerns: answering questions, following up or simply spending time with them.  One respondent raved: “They are great!  They never make you feel like you’re being intrusive.  They take their time with you, they answer questions.”  Another added, “They’ve always treated me with the utmost respect.”

A woman who gave a specific hospital a rating of one was still angry about the care her grandfather had received years before: “There’s nothing but students.  They didn’t treat him very well at all.  Every time I would ask questions, they would just be all, ‘Um, um, um, let me find out.’  We would ask and never find out an answer.”

Perhaps because most people have such low expectations for the amount of attention a doctor or nurse will provide in a busy hospital setting, even five minutes of one-on-one time stands out.  This has been echoed during our focus group research when the issue of informed consent is involved.  Jurors are impressed when a doctor has documented conversations about risks that lasted at least 15 minutes.  Conversely, we have noted that discussions of 45 minutes or more can actually make participants suspicious of a caregiver’s records, since they are skeptical that any doctor would actually spend that much time with a single patient.

These facility opinions matter because they are the same perceptions that can directly shape how jurors feel about a specific lawsuit – even if the case facts are totally different than their own personal experiences.  A hospital with an average community rating of 2.5 or below is going to face an uphill battle in establishing that caregivers met the standard of care, whereas a facility with an average rating of 4.0 or more already enjoys an advantage in the courtroom.

If you’re interested in learning more about community perceptions of one or more of your facilities, your brand or jurors’ overall attitudes about litigation and damages in a specific jurisdiction, this is an ideal time to conduct survey research.  While safe at home and glued to their smartphones, jury-eligible respondents are eager to do something different and make a few dollars at the same time.  Contact Partner/Senior Vice President Claire Luna to discuss how a community survey may help guide your litigation strategy during the coming months and years to come.

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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.

It’s no secret that many jurors form opinions in real-life trials based on what they have seen on TV and in movies.  This can create some problematic assumptions and misconceptions that work against the defense.  Below are a few examples:

“That’s not how Dr. House did it.”

Based on years of watching medical dramas during which healthcare providers can solve even the most complex of medical mysteries in 43 minutes of airtime, jurors sometimes have elevated expectations for caregiver efficiency and expediency in real life.  Especially in cases involving claims of delayed diagnosis, jurors’ expectations for caregiver speed and accuracy – even when trying to diagnose extremely rare conditions – can be especially problematic.  Over the years, jurors have evaluated case facts based on what they saw on ER, then House, and more recently shows such as The Resident and The Good Doctor.  We doubt that networks will stop producing these shows anytime soon, so when preparing a case for mediation or trial you need to be aware of what your jury pool is watching, how the medicine is presented in those shows and how that affects lay jurors’ expectations for care.

“Where is the ‘You can’t handle the truth’ moment?”

When talking to research participants who have served on real juries, we have noted a common thread among those with real courtroom experience is that civil trials are vastly different from what is portrayed in movies and TV shows – primarily the slow pace of the proceedings and the lack of dramatic “gotcha” moments.  There often isn’t much you can do to make hours of testimony more exciting, but you can use technology and compelling demonstratives to keep jurors engaged.  We always advise clients not to shy away from using technology in the courtroom (whether out of fear of overwhelming jurors or giving the impression your client has more money than the other side) – because jurors absolutely expect it.  One of the benefits of live or online research is the opportunity to get early feedback on the most effective videos, animations and visuals for your case.

“Oh, so it’s like Bull!”

When conducting jury research, we have noticed that many participants mention how our focus groups and mock trials remind them of the CBS show Bull.  Whatever you think about that particular show, the fact is respondents get excited when they learn they are participating in something that can impact how real lawyers present their case, and the decision of whether the case even goes to trial in the first place.  In other words, not only is the process cool, it is important and it matters.  The same applies to trial jurors seated in the actual venire – if they feel invested in your case, the more engaged and open minded they will be.  Especially considering the proliferation of Reptile Theory arguments that push the notion that fairness and justice only apply to one side, getting jurors to care about your side’s evidence, witnesses, experts and narrative is especially important.

“There is always video.”

Speaking of Bull, given the level of technology the public is accustomed to seeing used on legal TV shows and movies, one of the first questions we encounter during live or online research is, “Where’s the video?”  Especially in medical malpractice cases, we find ourselves frequently explaining that having video cameras in operating rooms or recovery areas would be HIPAA violations, yet we are still met with deep skepticism regarding this “missing” footage.  The same applies to any premise liability case, even in locations such as a hotel or cruise ship where privacy is a priority.  We have learned that one way to address jurors’ expectation for “everything to be recorded these days” is to explain that both sides have a vested interest in obtaining such surveillance video, and if it was out there it would certainly be in evidence.

If you would like our help evaluating what kind of research is the best fit for one of your pending cases, we’d be happy to lend our perspective.  Contact Partner/Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out more about our services.

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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.

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.