Standard Blog – Page 28

Exit Interview Tips

Jury Impact 17 April, 2009 no responses

About three days after we check out of our hotels, an e-mail containing a feedback survey pops up in our inboxes. Hotels use these questionnaires to learn what they did well and what could be done better. I guarantee that North Carolina hotel we stayed in a little while back will be much more vigilant about springing forward their clocks and stocking the bathroom with towels after the lambasting my co-workers and I provided in our responses.

Exit interviews with jurors can provide the same wealth of information, but oftentimes attorneys and their clients concentrate too much on the good or bad news of the verdict itself and not enough on the people who actually delivered it.

During the past three years, Jury Impact has refined its exit interview process to make it more consistent, comprehensive, and useful. As a former reporter for the Los Angeles Times, I was able to incorporate journalistic skills and techniques to make these interviews as powerful a learning tool as possible for our clients.

If lawyers decide to do the interviews themselves, the following tips can help:

A good first question asks jurors to describe what the case was about in one to two sentences, as if they’re describing the trial to their spouse or best friend. Not only will it make jurors comfortable because it’s an easy question, it will also provide you a great deal of insight into the direction of their answers to later questions.

Use the jurors’ answers to transition to other questions. This creates the perception the jurors are driving the interviews, not the other way around. For example, transition to another question by saying, “Going back to that point you made about the attorney being heavy-handed with that witness, tell me more about that…” This is key to making jurors feel like they are having a conversation with you, not like you’re peppering them with questions and not really listening to the answers.

Don’t be wedded to the list of questions. If a juror tells you, “The hospital killed that poor child and deserved to be punished,” don’t go straight to the next question. The follow-up question should be along the lines of, “What did the plaintiff say to make you think that?” or “At what point in the trial did you start to believe that?”

Know when to stop talking. Listen carefully and get into a conversational rhythm so that you know when jurors are pausing to collect their thoughts instead of simply not talking because they’ve finished answering the question. Don’t feel the need to fill every empty space with another question. Some of the best answers will come after you’ve paused enough to let the juror feel you want to hear more of what they have to say.

Oftentimes the best answers will come at the end of an interview, when a rapport has been established and the juror is relaxed. Save your most delicate questions for points, like, “Was there really anything the defense could have done to change your mind after you heard the plaintiff’s opening?” or “Do you think sympathy for the plaintiff affected your verdict?”

Avoid making statements during an interview that remind a juror which side you’re on. They are more likely to answer candidly if they’re not worried about offending you. At the same time, try not to get frustrated at a juror’s comments or take their words personally. Even if you can’t see the logic in a juror’s perspective, the fact remains that they feel this way and it is your job to find out why.

Take a few extra minutes during each interview to ask questions that aren’t on your survey sheet but show the juror you’re genuinely interested in their lives. If they tell you they wanted the trial to finish quickly because they had to get back to their job, ask what they do for a living, even if you already know. Sometimes this also provokes further insight into their thinking – “I’ve been fired myself so I knew what this guy was going through.”

-Claire Luna

Language Matters

Jury Impact 9 April, 2009 no responses

According to a recent Rasmussen Poll, 53% of Americans believe “capitalism” is better than “socialism.”

The telephone survey also revealed that 20% disagree and say socialism is better. Twenty seven percent couldn’t take a stand if they were buried ankle-deep in concre—ERRR…were not sure which is better.

Here are some demographic details:

Adults under 30 are essentially evenly divided: 37% prefer capitalism, 33% socialism, and 30% are undecided. Thirty-somethings are a bit more supportive of the free-enterprise approach with 49% for capitalism and 26% for socialism. Adults over 40 strongly favor capitalism, and just 13% of those older Americans believe socialism is better.

Investors by a 5-to-1 margin choose capitalism. As for those who do not invest, 40% say capitalism is better while 25% prefer socialism.

There is a partisan gap as well. Republicans – by an 11-to-1 margin – favor capitalism. Democrats are much more closely divided: Just 39% say capitalism is better while 30% prefer socialism. As for those not affiliated with either major political party, 48% say capitalism is best, and 21% opt for socialism.

The question posed by Rasmussen Reports did not define either capitalism or socialism.

But here’s the most interesting part:

It is interesting to compare the new results to an earlier survey in which 70% of Americans prefer a free-market economy. The fact that a “free-market economy” attracts substantially more support than “capitalism” may suggest some skepticism about whether capitalism in the United States today relies on free markets. (emphasis added)

See how a slightly different language choice can have a significantly different result? Although I disagree with their conclusion (“free-market economy” just sounds better than “capitalism,” which has had decades of negative connotations heaped upon it), this is a clear example of what we always preach to our clients:

Language matters.

Giving the Big Bad Wolf a Friendly Face

Jury Impact 6 April, 2009 no responses

This may come as a shock to you, but most of the companies that hire us aren’t typically viewed by jurors as the “warm and fuzzy” types. And you’d better believe the other side does everything they can to paint them as “greedy corporations,” “monstrous institutions,” or the “big bad wolf” salivating as it prepares to devour yet another vulnerable plaintiff.

Most often, these descriptions of “profit-driven corporate behemoths” help to paint a David-and-Goliath struggle, pitting plaintiff vs. defendant in a battle with seemingly impossible odds.

What the other side tends to forget is that there are a lot of friendly faces behind that so-called behemoth. No matter how big the hospital or the company, the fact remains that the people who work there – especially in healthcare – chose their careers according to what they believed would help other people. Nurses, especially, certainly aren’t doing it for the money or the easy hours.

We encourage all of our clients to do everything possible to humanize the defendants, to show that they are just as vulnerable as the sympathetic family in the Day in the Life video. Pictures of smiling nurses in an opening statement PowerPoint and, even better, those same compassionate nurses sitting in the courtroom audience day after day help to make the adversarial plaintiff-defendant relationship about people vs. people rather than people vs. “The Man.”

Even more can be done when witnesses are on the stand. Asking why nurses love nursing, especially labor and delivery, has evoked some powerful responses: “I treat them all like my daughters.” The same goes for doctors, although it must be said that knowing these responses in advance is key. We still shudder a bit when we remember the ER doc who reported choosing medicine because “nothing else seemed that interesting.”

Jurors don’t want to hear about caregivers who went into medicine by default – they want to hear about a passion for patient care. Our experience has taught us that along with that enthusiasm for helping people, jurors also respond well to credentials, experience, and training.

During a trial we monitored last year, simply labeling the labor and delivery nurses as “Level III” instantly established a credibility the plaintiffs couldn’t tarnish – and believe me, they tried their hardest.

So we urge clients to make every effort to humanize your organization – no matter if it’s an insurance company, hospital, or even a major financial institution – and demonstrate that just like the plaintiffs are people with families and feelings and dreams, the people who work there – espeically those who provided care – are as well.

-Claire Luna

ARTICLE: Austin ERs got 2,678 Visits from 9 People Over 6 Years

Jury Impact 1 April, 2009 2 responses

According to the Austin American Statesman, there appears to be a bit of ER abuse in its fair city. And by “a bit of ER abuse” I mean “rampant, out of control, why-has-taken-you-six-years-to-put-a-stop-to-this ER abuse.”

In the past six years, eight people from Austin and one from Luling racked up 2,678 emergency room visits in Central Texas, costing hospitals, taxpayers and others $3 million, according to a report from a nonprofit made up of hospitals and other providers that care for the uninsured and low-income Central Texans.

One of the nine spent more than a third of last year in the ER: 145 days. That same patient totaled 554 ER visits from 2003 through 2008.

“We looked at frequent users of emergency departments … and that’s the extreme,” said Ann Kitchen, executive director of the Integrated Care Collaboration, the group that presented the report last week to the Travis County Healthcare District board. “What we’re really trying to do is find out who’s using our emergency rooms … and find solutions.”

…

The ICC staff, meanwhile, has been gathering data so its members could learn more about the kinds of patients who use the ER.

The report that mentioned the nine high-frequency patients didn’t include reasons for all of those ER visits and didn’t identify the patients because of privacy laws. But Kitchen, a former state legislator from Austin, gave a sketch: All nine speak English; three are homeless; five are women whose average age is 40, and four are men whose average age is 50. Seven have a mental health diagnosis and eight have a drug abuse diagnosis. Kitchen said she did not know their citizenship status.

…

In a report last year, Austin-Travis County Emergency Medical Services said that 10 patients made up more than 1 percent of the system’s 130,000 contacts with patients in two years. The patients’ most common ailments were stomach or chest pains, injuries or respiratory problems.

In the comments section of this blog, a reader adds, “This means that, on average, each of the nine people visited the ER about once a week.” Wow.

Ask any juror in any city what their number one complaint about emergency rooms is, and you’ll hear “long waits.” And it goes without saying that these negative experiences reinforce predispositions about the quality of health care in the local area.

CLICK HERE FOR THE ENTIRE ARTICLE…

Professional Often Trumps Bombastic

Jury Impact 27 March, 2009 no responses

Perhaps it’s too many episodes of Law and Order on their DVR, but it seems like some attorneys we’ve observed during the past few years of trial monitoring are taking their cues from the bellowing, bellicose trial lawyers from TV and film. But from what jurors have repeatedly told us, that style is oftentimes is a big turnoff.

Exit interviews we’ve conducted this year following trials in two very different jurisdictions –one of which was in a large, fast-paced jurisdiction, where one might assume jurors expect at least a little flash – revealed that not only do jurors notice screaming, excessive sarcasm, sotto voce asides, petty objections and witness badgering, most of the time they can’t stand it.

Consider the plaintiff’s attorney in one of the cases we monitored. We watched him badger nurse after nurse, prompting all five involved to cry on the stand. He thrived on disrespecting opposing counsel in front of the jury, at one point saying, after she objected to a leading question, “If you hate it so bad, how come you do it so much?”

While we developed an immediate aversion to him on the first day of trial, we’ll let the juror comments after the trial speak for themselves:

“Did you see me rolling my eyes at him? I tried to control myself, but he was just so horrible.”
“This is the epitome of a sleazy, weaselly lawyer.”
“That ‘why is everyone so stupid except for me’ mentality got really old. The little comments he made under his breath were really insulting to his professionalism.”

To a juror, no one could stand this guy.

We had the good fortune of working with lawyers who, in contrast, jurors described as “professional,” “efficient” and “courteous.” Don’t mistake these descriptors as synonyms for boring. On the contrary, jurors appreciate examinations that move along at a good clip, using well-chosen questions in conjunction with well-placed “a-ha” moments to establish or undermine credibility.

Not only is this approach consistently more appealing, jurors understand that bombastic lawyers consume a lot of courtroom time with irrelevant asides and argumentative, often repetitive lines of questioning. When jurors’ time is on the line, and they’re looking at the clock thinking about kids who need to be picked up or work that needs to be caught up on, they want every minute in that courtroom to be used effectively.

And as entertaining as the buildup to a “You can’t handle the truth” climax is in the movies, in real life, jurors are usually looking for something much more straightforward.

-Claire Luna

ARTICLE: As Jurors Turn to Web, Mistrials Are Popping Up

Jury Impact 18 March, 2009 no responses

Remember when we said technologically-proficient, web-savvy people tend to make worse jurors?

Well, by way of the New York Times, here’s another example:

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment against it after a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded that the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a “big announcement” was coming Monday. But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based only on the facts that the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web, or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from point A to point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

“It’s really impossible to control it,” said Douglas L. Keene, president of the American Society of Trial Consultants.

…

The technological landscape has changed so much that today’s judge, Mr. Keene said, “has to explain why this is crucial, and not just go through boilerplate instructions.” And, he said, enforcement goes beyond what the judge can do, noting that “it’s up to juror 11 to make sure juror 12 stays in line.”

It does not always work out that way. Seth A. McDowell, a data support specialist who lives in Albuquerque and works for a financial advising firm, said he was serving on a jury last year when another juror admitted doing a Google search on the defendant, even though she acknowledged that she was not supposed to do so. She said she did not find anything, Mr. McDowell said.

Mr. McDowell, 35, said he thought about telling the judge, but decided against it. None of the other jurors did, either. Now, he said, after a bit of soul searching, he feels he might have made the wrong choice. But he remains somewhat torn.

Here is my favorite part:

“I don’t know,” he said. “If everybody did the right thing, the trial, which took two days, would have gone on for another bazillion years.”

Forget about the law, America’s Next Top Model is on tonight! And we end on this gem:

Mr. McDowell said he planned to attend law school in the fall.

Off to a great start, pal!

CLICK HERE FOR THE FULL ARTICLE…

Trial Tip: The Details Matter

Jury Impact 27 February, 2009 no responses

An Eagle Scout pin on a lawyer’s lapel.

A Day in the Life video briefly showing a Mercedes SUV in the garage of a plaintiff’s family claiming financial hardship.

The attorney whose objections are only sustained one time out of a dozen.

Jurors notice all of these things, and more. To them, what they observe and analyze in a courtroom is so much more than what the witnesses are saying on the stand. As their attention and focus spread beyond testimony and case facts, jurors’ observations of seemingly inconsequential details can be a powerful tool in shaping their opinions of the lawyers, parties involved, and the merits of the case itself.

Consider a recent five-week medical malpractice trial we monitored. As much as we noted about courtroom events and the jurors’ reactions, it turns out the jurors were just as attentive to the most minute details, including those described above.

Although they were quick to say during exit interviews that they didn’t arrive at a verdict based on any of those observations, it was clear that the lawyer with the Eagle Scout pin quickly gained credibility among the panel – and that his slightly unkempt suits stood in sharp contrast to the other side’s bespoke ensembles.

Also evident to these jurors was the fact the plaintiffs involved “weren’t hurting for money.” In addition to the pricey SUV, jurors also noted the large house (and were critical that the plaintiff’s young son with cerebral palsy had a room “barely bigger than a walk-in closet”) and the father’s tendency to wear designer Polo shirts in the courtroom. “I kept a tally, and I saw that little horse every day,” one juror told us. “Those shirts aren’t cheap, so I didn’t think they should be crying poverty.”

One thing our clients learned during this trial was the importance of paying as much attention to detail as the jurors. After one expert was finished testifying, a gleaming black town car was waiting outside the courthouse to take him to the airport. Not a good way to connect with the jurors–especially the farmer who gawked as he puttered by in his battered 1970s pick-up truck.

Because strong case facts and concise, effective themes are the cornerstone of any good trial presentation, it’s sometimes easy to overlook details. But jurors are watching, and consciously or not, their observations of the little things are helping to shape their impressions of the big picture.

-Claire Luna

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