Standard Blog – Page 26

Things That Make You Go Hmmm…March 2010

Jury Impact 16 March, 2010 no responses

Unless you’re a superhero masquerading as an attorney, chances are telepathy isn’t among your abilities. Instead, you’re stuck divining jurors’ thoughts by monitoring body language or note-taking – and assuming feverish writing is related to your brilliant cross-examination, rather than a grocery list or screenplay pitch.

Fortunately, more and more courts are allowing jurors to submit written questions to witnesses following the attorneys’ examinations. These questions provide a much better gauge of juror leanings during trial by revealing what made sense to them, what did not, and what else they want to know.

Although some lawyers may prefer the “ignorance is bliss” approach to trial – learning what the jury was thinking only when the verdict is read and not before – we respectfully disagree.

As we have observed during our focus groups and mock trials, the ability to identify and answer questions from the outset prevents the dangerous juror tendency to make up their own answers based on potentially inaccurate, pre-existing knowledge. Pre-trial jury research can help to eliminate and address the majority of likely juror questions, and allowing jurors to submit questions during trial adds another layer of proactive protection from harmful juror assumptions.

During a recent trial, juror questions were eye-opening. After nearly four hours of expert testimony explaining the plaintiff’s causation theory, a high-priced, self-important expert witness received the following query: “So I don’t understand…what exactly is your theory on why the plaintiff was injured?”

With that one question, from arguably the most intelligent juror on the panel, the defense knew the plaintiff’s “star expert” explanation had failed to resonate, and, most importantly, that despite four days of testimony, jurors were still observing the plaintiff’s case with a highly critical eye.

So until your superpowers include mind-reading, encouraging the court to allow juror questions can be a great way to get into jurors’ heads and adjust your case accordingly – before they announce a verdict you don’t want to hear.

-Claire Luna

Jury Impact’s 2009 Med-Mal Awards

Jury Impact 16 February, 2010 no responses

The “fashionistas” are out and E!’s “Red Carpet” is back, and that can only mean one thing – Oscar season. So in the spirit of the festivities we’re presenting our own “2009 Med-Mal Awards!”

Last year, we conducted research in med-mal cases nationwide. Despite radical differences in fact patterns and jurisdiction, similar themes–for the plaintiff and defense–always seem to register. We see it time and again…jurors “classify” cases into a few categories. That means common themes emerge. So which themes were juror favorites in 2009?

First, our award for Most Popular Plaintiff Theme. And the nominees are:

Delays in Care
Communication Breakdowns
Not Enough Tests
High-Risk Patients Deserve a Higher Level of Care
The Splash Effect: when jurors apportion responsibility to everyone
because they perceive negligence on one party.

And the award for Most Popular Plaintiff Theme goes to…“The Splash Effect!” In a whopping 38% of cases, we saw “splash” in one form or another.

Next, our award for Most Resonant Defense Theme. And the nominees are:

Credible Alternate Causes
Inevitable Outcome
Moment-to-Moment Care
Personal Responsibility: either failing to take care of themselves
and/or for not communicating with caregivers.

And the award for Most Resonant Defense Theme goes to…“Inevitable Outcomes.” In a massive 56% of our cases last year, jurors expressed the opinion that “outcomes were inevitable” because a pre-existing or rare condition prevented caregivers from effectively diagnosing or treating the patient.

Uh-oh, the band is starting to play. How close was the vote? To find out, or for more information about themes that resonate and the language we use to address them, please don’t hesitate to contact us.

-Stephen Duffy

Toyota’s Troubles

Jury Impact 11 February, 2010 no responses

In our automotive research experience, we’ve learned that just as Volvo is associated with “safety” and Mercedes-Benz with “luxury,” the Toyota brand carries incredibly strong connotations with “reliability.” Furthermore, many consumers agree Toyota’s sterling reputation for trouble-free ownership is worth a premium over other more “stylish” or performance-oriented brands.

Now, Toyota’s reputation for dependability is under siege. And from our perspective, the company mas made some crucial mistakes in addressing consumer anxiety.

In Jury Impact President Chris St. Hilaire’s upcoming book, The 27 Powers of Persuasion, three chapters specifically apply to Toyota’s current situation:

*Go on the Offensive
*Take Responsibility—It Will Be Assigned Anyway
*Release Bad News—All of It—Quickly

One of the most essential elements of any messaging campaign is going on the offensive. Whether presenting at trial, selling a product, or addressing public relations nightmares, we always stress to our clients the importance of going on the offensive. Toyota, on the other hand, seemed until recently to be taking a reactive approach to criticisms.

In September 2009, after concerns surfaced about accelerators sticking under floor mats, causing four deaths, Toyota recalled 3.8 million autos (this followed a 55,000-vehicle recall in 2007 for the same issue).

The first apology from CEO Akio Toyoda, when he reassured the public “we guarantee [our customers’] safety,” was on January 29 of this year. That four-month delay is hardly going on the offensive.

From a PR perspective, Toyota has seemed content trying to isolate its issues to a few specific models and fighting fires only as they flare up. Specifically, since the floor mat and sticky accelerator issues surfaced, a Toyota Prius and Lexus HS250h recall has been issued related to faulty brakes, and reports are now surfacing about steering problems with Corollas. Making matters worse, Toyota now admits it was fully aware of these braking problems yet chose not to issue a fix or recall.

This failure to act (including an early refusal to fix accelerators already at the dealership because, according to its U.S. Safety spokesperson, “Toyota continues selling models involved in the recall, expecting that they work fine because they are new and the throttles don’t seem to begin sticking until the vehicle ages”) has led to yet another PR-horror show as the National Highway Traffic Safety Administration has opened an investigation. Toyota’s piecemeal approach to revealing problems it was well aware of has drawn out what could have been one really bad news week into a months-long cascade of bad press.

This stresses the importance of releasing bad news—all of it—quickly. Toyota’s reactive, after-the-fact strategy for addressing problems puts the company at a disadvantage for several reasons: 1) It is spending too much time responding to new criticisms to get ahead of the bad news, 2) waiting for the attacks to come in before addressing known issues makes the company seem defensive instead of preemptive, and 3) there is a growing perception Toyota is are not proactively monitoring vehicle safety, and only addressing things for which it is “caught in the act.”

By waiting too long to go on the offensive, being slow to address new concerns, and failing to put all of the bad news on the table at once, Toyota has allowed the media to control the message, resulting in public relations nightmare and a piling-on effect.

In a February 9 Washington Post op-ed, Toyoda explained what the company is doing to prevent issues like these from arising in the future, specifically a “top-to-bottom review” of Toyota’s global operations. That’s great news, but a bit late. This apology, in which he concedes Toyota needs to investigate consumer complaints more quickly, comes after months of failing to investigate consumer complaints more quickly.

However, the company should be credited for finally taking responsibility. Some would say it’s a bold move, but based on our experience, responsibility will be assigned anyway—so if you’re aware of problems, it’s always better to admit mistakes as early as possible.

Which brings us to another crucial element to a successful communication campaign: presenting a cohesive, consistent message. Instead of creating new messages for each new problem, from early on Toyota could have been playing to longstanding predispositions about its product quality and presented a broad message to address the safety and reliability of the larger brand.

Consumers don’t care which models have steering issues, which are prone to floor mats jamming under the gas pedal, the parts supplier responsible for faulty pedals, or the intricacies of the dealership and factory fixes—they just want to be reassured the car they’re driving is safe. And that’s the big picture message that seems to only be coming out now in recent mea culpas, press releases, and television ads.

Considering Toyota lost $21 billion in market share in just one week, these blunders clearly aren’t minor. Instead, they highlight the consequences of failing to go on the offensive with a cohesive, consistent message. However, they will have fresh opportunities to apply these messaging principles, as CNN reports the lawsuits have already started in earnest.

We hope that Honda, which just issued a major recall related to airbags, will learn from Toyota’s missteps.

-Todd Fairbanks

Board Certification

Jury Impact 14 January, 2010 no responses

During a recent focus group involving hospital credentialing, 18 of 24 jurors said they believe doctors must be board certified to practice medicine.

Based on the frequency of similar responses, we began surveying on the issue last year during groups involving medical malpractice. So far we’ve asked 487 jurors: “Do you think your primary care doctor is board certified?”

Of those polled, 18.9% said “I don’t know” and an astounding 80.3% said “yes.” Perhaps most telling is that only four out of 487 said “no.”

This means that a vast majority of jurors from all regions, backgrounds, ethnicities, genders and incomes assume their doctor is board certified. Our experience tells us this confusion results from an assumption that board certification and medical licensing are one and the same.

Naturally, the question arises: if a doctor involved in a lawsuit is not board certified, how do you discuss the issue? Conversely, if a doctor is board certified, how do you use juror predispositions to your advantage?

Second question first – when doctors are board certified, you need to talk about it. Play to juror predispositions and highlight doctor education, training, experience, as well as the dedication it takes to pass board exams and establish oneself in a specialty. By playing to juror perceptions that doctors should be board certified (whether actually required or not), you establish and bolster their credibility.

Now to the tougher question where there’s no easy answer. When trying a case involving a doctor who is not board certified, you must recognize that jurors are going to perceive it as a net negative. We have tested many ways to address this issue during research, with limited success.

With that said, a lack of board certification makes contextualizing the rest of the doctor’s experience all the more important. We suggest spending considerable time talking about the education they do have, including the number of surgeries or other relevant procedures performed, specific qualifications, fellowships completed, and other credentials. Highlighting that experience can somewhat mitigate the negative biases seen in the above juror statistic.

During the coming year, we’re adding new questions to our Depth Charts to provide you with more quantitative data. If you have any suggestions for juror questions or things you’d like to know specifically, let us know. We’d love to hear them.

-Todd Fairbanks

Things That Make You Go Hmmm…

Jury Impact 4 December, 2009 no responses

Thinking about the 12 Days of Christmas reminds us of one of the most effective argument strategies we see: Use a couple of numbers.

Magazines are well aware of this approach. Just look at the monthly covers trumpeting lists such as “Top 100 colleges,” “400 richest Americans,” and the women’s magazine classic, “Seven Ways to Please Your Man!”

Recently we watched jurors deliberate a case in which a doctor failed to diagnose an extremely rare disease in an obese patient. The patient’s presenting symptoms: moderate muscle pain and high blood pressure. The doctor assumed a pulled muscle and too many Big Macs, and said to come back if the pain persisted. The true pain source turned out to be an extremely rare, deadly bacteria.

During discussions, plaintiff-leaning jurors zeroed in on the prevailing predisposition that “doctors are rushed and don’t spend enough time with patients.” Unfortunately, the initial pushback by defense-leaning jurors was weak: “Doctors can’t always diagnose these rare conditions right away.” The problem here was that plaintiff jurors simply could not understand just how little information the patient’s symptoms provided the doctor.

Adding a number helped change this. Jurors were introduced to some statistics: There are approximately 5,100 potential diagnoses for the combined symptoms of pain and high blood pressure. During deliberations, the defense-leaning jurors effectively adopted this number as their theme and supported it with another number: The disease occurs in no more than one in every 305,000 people.

Happy holidays and the very best wishes for the New Year.

Poll: Apparent Agency

Jury Impact 11 November, 2009 no responses

Agency claims are some of the most difficult to defend in medical malpractice work, due to jurors’ predisposition that if a medical mistake happens inside a hospital, then the hospital is ultimately responsible.

We tried to quantify this perception in a recent national poll, asking 1,001 Americans whether they agree or disagree with the following statement:

If a medical mistake occurs in a hospital, then the hospital is responsible for everything that happens under its roof. The results show that seven out of 10 jurors are likely to assume from the outset that a hospital is responsible for the actions of any and all doctors practicing within the hospital walls.

STRONGLY AGREE: 47.3%
SOMEWHAT AGREE: 28.1%
SOMEWHAT DISAGREE: 11.2%
STRONGLY DISAGREE: 9.2%
DON’T KNOW/REFUSE: 4.2%

In addition, these perceptions of blanket responsibility increase as jurors’ education and household income levels decreased. In fact, 63% of jurors with less than a high school education and 57% of those with only a high school education strongly agreed, compared to 46% of college graduates and 40% of those with post-graduate study or degrees. Finally, 64%of those with household incomes of less than $30,000 strongly agreed, while just 36% of those with household incomes of more than $100,000 strongly agreed.

Overcoming the predisposition is possible, but as you can see , getting the right jurors–and the right message–is key.

*The poll, conducted from July 24-27, surveyed 1,001 U.S. residents older than 18 and has a 3.1% margin of error.

The Dials Don’t Lie

Jury Impact 30 October, 2009 no responses

We always talk about the importance of third-party credibility in trial. Now watch us use it.

We recently conducted research for a bad faith case involving a significant jury award and an alleged failure to settle the claim beforehand. The plaintiff says the defendant insurer should have known a costly verdict was probable and ponied up more money to settle early. More specifically, the plaintiff says the defendant would have known about this risk if they had done a focus group or mock trial.

During our research, an argument testing the validity of focus groups as a method of assessing a case’s potential was the highest scoring among either plaintiff or defendant statements, with a score of 83.5. If you’ve seen our Instant Response dials in action, you know that’s a “home run” score.

Knowing the potential for a multi-million-dollar verdict in this county, [the insurer] should have engaged in jury research through a focus group or mock trial to determine what the potential was for a large verdict. Instead, they went into the trial “blind” and unprepared – placing the [client’s] reputation and resources in an even more vulnerable position.

AVERAGE ARGUMENT SCORE: 83.5

Now you don’t have to rely only on our (admittedly biased) opinion that focus groups are a good thing. Jurors think so, too.

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