The whole world seems to be wishing right now that when times were better and employment was secure, they had socked away some extra funds.  The idea that people should have a reserve of extra money for a rainy day, whether due to pandemic or something more mundane, is one of the strongest contributors we have observed jurors use to justify giving big awards – sometimes even more than the plaintiff attorney asked for at trial.

When we asked during our most recent national survey who would be inclined to award more than the plaintiff attorney’s suggested amount for medical expenses “just in case,” 64 percent of the respondents said yes.  This quantitative data confirms what we have seen more and more during our focus groups – jurors who give more than the plaintiff’s demand because they are concerned that the plaintiff may run out of money to fund necessary treatment or cover unexpected emergencies, such as expenses related to COVID-19.

We saw further evidence of this trend when we gave respondents a sample case scenario in which a child was injured following a medical procedure and the plaintiff asked for $60 million.  Just 19 percent indicated they would give $60 million or less, while a full 81 percent wanted to give more.  (Shockingly, 33 percent voted to give the single plaintiff at least $120 million – double the number the plaintiff attorney had proposed.)

Interestingly, we often see during our sessions that jurors typically believe the plaintiff’s figures are exaggerated and the defense numbers are too low.  Yet when push comes to shove, when forced to name a number, they err on the side of favoring the plaintiff because, as they put it, “you never know” what could happen to a plaintiff or their family members down the road.

This perspective can be compounded when the defendant is a large corporation, or assumed to have insurance to pay an award.  With this in mind, jurors oftentimes consider damages from a “why not” outlook: “Why not give more in case there is some huge medical advance?”  “Why not give more in case a judge reduces it later?”  “Why not give more in case the family runs into hard times and needs the money?”  Frustrating, to be sure, but also helpful to recognize in advance in order to prepare yourself for a large verdict and try to inoculate the jury in advance to such arguments among the panelists.

Although this trend was consistent across gender lines, we did note some interesting demographic correlations.  The jurors most likely to award even more than the plaintiff attorney’s suggested amount “just in case” shared the following characteristics:

• Agrees that caregivers are responsible for any negative or unexpected medical outcomes that happen to a patient, regardless of whether these outcomes are due to mistakes or negligence
• African American
• Strongly supports or somewhat supports a program in which the government provides free college education to American citizens (1.5 times more likely)
• Would strongly consider awarding an amount equal to the plaintiff’s medical bills even if they don’t believe the defendant is at fault in a personal injury lawsuit
• Indicate that sympathy for an injured plaintiff might affect their verdict even if a judge tells them it shouldn’t (1.5 times more likely)
• Ages 18-44

Those more inclined not to award more “just in case” shared the following traits or beliefs:

• Would not consider unexpected medical advances, attorney fees or rising medical costs in an award
• Would not want to 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” because medical costs are rising (3 times more likely)
• Would probably not or would definitely not consider awarding an amount equal to the plaintiff’s medical bills if they don’t believe the defendant is at fault in a person injury lawsuit
• Disagrees that caregivers are responsible for any negative or unexpected medical outcomes that happen to a patient, regardless of whether these outcomes are due to mistakes or negligence
• Does not believe the hospital is responsible for any mistakes the doctor makes while treating patients at that hospital, regardless of whether a doctor is a hospital employee versus an independent contractor
• Homeowner
• Caucasian
• Wouldn’t conclude a plaintiff’s case has merit just because it makes it to the trial stage
• The defendant’s status as a large corporation would not affect their award

If you would like to discuss these survey findings further or how we can apply our research to one of your pending cases, please reach out to Senior Vice President Claire Luna at cluna@juryimpact.net or 949.735.1278.  We look forward to hearing from you.

***

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.

Friends of Jury Impact,

As the world continues to learn more about COVID-19, the health and safety of our team as well as our clients and participants are front and center in our minds and actions.  We have postponed all in-person research through mid-April and continue to monitor guidelines and restrictions in determining when to resume those projects.

In the meantime, we want to make sure you are all aware of our alternatives to in-person research.  The list below is not exhaustive – we are happy to discuss any of your pending cases and what approach will be the best option to obtain helpful feedback.  During this challenging and unprecedented time, our goal is to continue to serve our clients however we can in a creative, safe and meaningful fashion.  Once we deem it safe to resume travel, rest assured we will be back on the road and eager to see all of you in person.

We have also taken this opportunity to resume writing our articles based on recent jury research and current events.  We have many new findings from a recent survey on damages that we look forward to sharing with you.  Let us know if there are any topics of particular interest to you and we will try to cover them.  Thank you for your continued support, and stay well.

Online surveys: Our online survey process lends itself well to simpler cases or studies focused on specific and limited aspects of a case such as damages, whether a defendant should admit negligence or how aggressively the defense can argue contributory negligence.  We have successfully tested cases online involving claims of medical malpractice, product liability, premise liability, maritime law, dram shop law, inmate healthcare and many other issues.

Videoconference focus groups: We can conduct live focus groups and broadcast them remotely via videoconference, allowing jurors to provide the nuanced feedback you have become accustomed to through our in-person research.  You are able to guide the discussion, provide information and ask jurors questions via an Instant Messenger system connected to our staff.  We suggest this approach for cases with more complexity, higher exposure and/or those where you want to effectively gauge the effect of “groupthink” on juror perspectives about a case.

Witness evaluation: Our online process allows us to quickly survey 50-plus participants in your trial jurisdiction about their perceptions of the credibility and likeability of crucial witnesses, including corporate representatives and key fact witnesses.  Jurors view a video clip from an actual or mock deposition, then provide immediate ratings and open-ended feedback about the witness’ verbal and nonverbal performance.  This data can be used internally to evaluate how a trial jury will view your witness and can factor into decision-making about who should sit at the counsel table during trial.

Witness prep: Prep sessions can be conducted via videoconference, allowing one or more of our trained consultants to observe and provide real-time feedback about a witness’ overall performance and ability to present the defense messaging and story.  This can be done in conjunction with a witness evaluation survey so that witnesses better understand real jurors’ perceptions of their presentation style and can make strategic changes accordingly.

Exit interviews: If you have had a recent adverse, unexpected verdict at trial, exit interviews can provide insight into jurors’ decision-making regarding liability and damages.  This process can be especially useful if it is a “bellwether”-type of case that is the first of many on that issue or involves the same defendant.

Jurors Assume Doctors are Hospital Employees

As we all know, jurors are not experts in medicine, the law or the judicial system.  As such, their own preconceived notions, personal experiences and misconceptions often influence how they interpret case facts and arrive at a verdict.

During more than 15 years of medical malpractice research one of the most common – and troubling – juror assumptions we encounter is that doctors caring for patients in a hospital are direct employees of that facility.  In fact, Jury Impact’s most recent nationwide healthcare survey, fielded in October 2019 with 500 jury-eligible respondents throughout the United States, revealed that almost 80 percent believed most doctors are hospital employees.  As you can imagine, this widespread assumption creates an uphill battle when defending hospitals against claims of ostensible agency/vicarious liability.

When conducting focus group and online research for cases involving ostensible agency, we have observed that even after educating participants that most doctors are in fact independent contractors, their perceptions regarding the facility’s accountability for doctors’ actions do not waver.  This tendency is consistent with the results of our national survey, in which jurors were asked: “Regardless of whether a doctor is a hospital employee, versus an independent contractor, do you believe the hospital is responsible for any mistakes the doctor makes while treating patients at that hospital?”  In response, 78 percent voted yes.  As one participant expressed during a recent focus group, “It’s kind of like a rent-a-hospital, and I do think the hospital is responsible because [doctors] are under the umbrella and they are responsible for how they represent the hospital.”

Furthermore, 76 percent of nationwide respondents agreed that a hospital should be held responsible for any issues or complications that happen under its roof, regardless of whether the person making the mistakes is a hospital employee.

As daunting as these findings are, it is important to understand the drivers behind them.  Ultimately, we have learned that jurors simply don’t like the idea of a hospital vetting and performing background checks on a doctor, ultimately allowing that doctor to treat the hospital’s patients, then avoiding all responsibility when that doctor harms a patient.  This boils down to a fundamental issue of fairness, and a resistance to the general premise that a hospital can escape liability for “its” doctor based on a perceived technicality.

We have also learned that jurors rarely buy into the notion that a consent form trumps all.  Research participants often point out that patients cannot receive care until they sign the forms that are pushed in front of them, often during a time of considerable stress and trauma.  A common refrain is that since patients and their loved ones sign consent forms “under duress,” it is not reasonable to expect them to fully understand the technical aspects of the doctor/hospital relationship, and patently unfair to hold them to the terms included in the fine print.

Although we have yet to find a “silver bullet” argument to convince jurors that hospitals are not ultimately responsible for independent contractors’ actions, we have noted several helpful education points:

• Doctors bill separately for their services. This is especially helpful because many jurors have experience receiving separate bills from the hospital and the doctor.  Playing to this personal experience can be a way to create separation between doctor and hospital.
• Hospital administrators don’t have any say over doctors’ medical decisions. In our experience the vast majority of jurors believe this is how it should be, and helps to support the theme that independent doctors are responsible for their independent decisions.  However, we frequently hear the counterargument that since doctors are subjected to the hospital’s policies and rules, the hospital does still have some sway over doctor’s actions and therefore shares responsibility for poor outcomes.

Ultimately, every case is different and when deciding whether to pursue a jury trial it is important to first understand the worldviews and beliefs among your venire.  It is especially vital to determine whether jurors’ deep-seated predispositions can be overcome with education, or whether their core beliefs would prevent them from siding with the defense – even if the medicine or technicalities of the agency issue are on your side.  If you have an upcoming case that could benefit from jury research, please feel free to contact us.

If you’d 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.

As we discussed in our previous Things article on August 8, it’s no secret the American public is more skeptical now than ever.  Distrust of institutions – the federal government, media and medical authorities, to name a few – is at a global all-time high.  Whether contemporary events have produced this distrust or it has been a long time in the making, one thing is clear: Jurors are less likely than ever to trust witnesses based simply on their employer’s reputation or educational background.

This is especially true for millennials.  The younger generations, who are skeptical of everything and everyone, also tend to be overly confident in their ability to determine what information has merit and what is fake or meaningless.  Unfortunately, what this means in the courtroom is that if a younger juror doesn’t buy into your expert’s testimony, they are likely to hold steadfast by that opinion regardless of credentials or what other jurors say.

Although we would never assert that younger jurors are worse at making judgment calls on credibility, their generally negative view of institutions means they are even more likely than older jurors to dismiss traditional witness credentials in favor of other qualities when determining witness legitimacy.  That is because instead of just trusting the authorities, today’s most skeptical jurors – millenials and Gen Zers – want to be convinced that an expert is credible.  We have found the best way to do this is by highlighting an expert’s experience and ability to communicate clearly.

In our own nationwide research, only 6 percent of respondents said having a famous employer (such as Harvard or Stanford) was among the most important factors in how credible they find an expert witness.  Likewise, the same number of respondents chose the number of awards the expert has received as a top credibility indicator.  Most respondents instead placed weight on years of experience (75 percent), followed closely by the ability to explain things in simple terms (71 percent).

From our perspective, these findings should play into both how you choose your experts and how you present them at trial.  In medical cases, it might be better to choose a local doctor who’s been practicing in the community for 30 years and excels at talking to regular people than a big-name university hotshot with no bedside manner.  When presenting your witness at trial, don’t gloss over that person’s experience in favor of chairmanships and accolades – let that witness talk about the thousands of patients he or she has treated, their daily experience in the field (we have seen credibility jump when a doctor reports delivering a baby just hours before coming to the courtroom) and the reasons why he or she chose and enjoys that particular specialty.  And it may even be necessary to “re-train” experienced witnesses on the importance of using clear explanations with minimal jargon.

If you’d like our help evaluating your witnesses and helping them appeal to today’s juries, 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 witness evaluation and witness preparation services.

In this era of “fake news,” alleged Russian influence in elections and increasingly polarized political views, it is becoming more and more difficult for people to determine what “the truth” really is.

According to a recent Axios/SurveyMonkey poll, 72 percent of respondents believe traditional news outlets “knowingly report false or misleading stories at least sometimes” (among Republicans and Republican-leaning independents, this number was an astounding 92 percent).

And of course, we have never had more access to information (and disinformation, according to many) – further confusing the picture of who and what to trust.  When even longstanding, established facts are suddenly viewed as “facts,” at a certain point some people start to question everything around them.  In this confusing and uncertain environment, perhaps it’s unsurprising (but no less disturbing) that in 2018 there is an actual debate about whether vaccines are beneficial and whether the world is flat or round – everything must be questioned now.

A growing mistrust of large institutions only makes things worse – especially among millennials.  In 2016, Ernst & Young and the Economic Innovation Group polled 1,200 American millennials (18 to 34 years old) and found that only 27 percent expressed a great deal of confidence in banks (perhaps not surprising considering many came of age during the Great Recession), a dismal 20 percent had confidence in corporate America and two-thirds said they lack confidence in the criminal justice system.

We have found this inherent tendency to “distrust everything” can carry over into the courtroom.  When the plaintiff and defendant disagree about fundamental facts and issues, some jurors assume both sides are just selling their biased spin, and the truth must lie somewhere else.  This results in jurors creating their own causation theories, going down factual rabbit holes (based on an assumption that one or both sides must be “hiding something” from them) or deciding cases based on arguments that neither side is making.

For example, we conducted focus groups for a personal injury lawsuit stemming from a car accident.  There was an overwhelming amount of disputed facts and conflicting eyewitness testimony, and instead of scrutinizing those issues, jurors during both research sessions spent a disturbing amount of time discussing testimony that one of the drivers had stopped at a bagel shop prior to the accident.  Was she eating the bagel at the time of the crash?  Was she distracted because she was trying to put cream cheese on it?  What kind of wrapper was the bagel in?  Could the bagel have rolled under her feet?  Why was she even stopping for a bagel in the first place if she was late for an appointment?

It’s amusing now, but it just goes to show that sometimes when jurors are bombarded with too much information they tend to distrust everything and instead pursue tangential or irrelevant topics in an effort to “crack the case.”  In other words, “We’re not getting the whole story from either side, so it’s up to us to find out what’s really going on.”

Therefore, it can be helpful to focus jurors on aspects of the case on which both sides agree.  Admittedly, these points of agreement can sometimes be rare, but it is still important to establish which facts are not in dispute, to help narrow jurors’ focus to the issues they are actually there to decide, and avoid distractions by non- issues.

Online research, live focus groups and mock trials are highly effective at identifying key misconceptions, crucial education points to corral wandering minds and effective ways to steer jurors back to the key issues at hand.

To discuss how we might evaluate one of your cases, reach out to Partner/Senior Vice President Claire Luna at cluna@juryimpact.net.

After more than a decade of jury research, plenty of times we have seen an otherwise solid, highly defensible case unexpectedly go down in flames during focus groups and mock trials.  In some instances the science was airtight, but jurors just found it too complex and favored the plaintiff’s simpler explanation.  Sometimes the case facts were straightforward and reassuring, but the witnesses were terrible and caused jurors to question the credibility of the entire defense narrative.  Other times the causation evidence was incredibly strong, but participants still found for the plaintiff based on their desire to hold the defendant accountable for overwhelming negligence.  There are many factors that can unexpectedly sink a case that looks good on paper, and it is much better to identify these potential issues and pitfalls before ever setting foot in a courtroom.

For example, sometimes the jurisdiction can be an impeding factor, regardless of the merits of the defense story.  We conducted focus groups for the same birth-injury cases, but recruited from two different counties in the same state (at the time there was a question of which venue the case would be tried).  The two sets of jurors differed considerably regarding household income, level of education, political affiliation and white collar vs. blue collar.  Despite presenting the same fact pattern, arguments and expert testimony, the focus group results were wildly different.  When the client learned that the case would be tried in the less-favorable venue, it completely changed their evaluation of the case.  In the end, it doesn’t matter how strong your case is if the jurors deciding it aren’t receptive to your narrative.

Which brings us to the defendant’s reputation in the community.  We conducted research for a personal injury case where a hospital was being sued but the caregivers did everything by the book (participants noted that even the plaintiff’s experts didn’t have many legitimate criticisms of care, mostly nitpicking).  However, jurors indicated from early on that the hospital in question had a horrible reputation in the community, including a nasty nickname that we won’t repeat here.

When jurors during both sessions expressed some form of “I wouldn’t take my dog there,” we immediately knew the defense was at a severe disadvantage.  In fact, even though the focus group respondents largely agreed caregivers in this case acted reasonably, they couldn’t get over their deep-seated, negative predispositions about the hospital and concluded this particular instance was likely an anomaly to what they “knew” typically went on at this facility.

We have also seen that sometimes the plaintiff’s extent of injury is just so devastating that jurors immediately want to try to find a way to award money.  For example, cases involving “locked-in syndrome” are particularly prone to sympathy since these patients understand exactly how impaired they are.  Sometimes jurors want to avoid leaving the plaintiff “high and dry” – even if the evidence clearly shows the defendants did nothing to cause the injury.  Over and over again we have observed focus group participants and trial jurors succumb to their desire to “take care of” the plaintiff and award money, even if they weren’t convinced the outcome was a result of negligence.

Overall, certain cases, regardless of the strength of the evidence, the favorability of the facts or the sterling credibility of the testifying witnesses, have underlying issues that can greatly decrease the chances of a favorable verdict.  This highlights the importance of conducting research before your case goes in front of a mediator or a trial jury, to help identify these obstacles and explore whether or not they can be mitigated, or whether they will present an insurmountable hurdle in a seemingly defensible case.

To discuss how we might evaluate one of your cases, reach out to Partner/Senior Vice President Claire Luna at cluna@juryimpact.net.

During jury selection, a person’s political leaning has always been one of the foremost predictors of whether they’re more likely to support the plaintiff or defense.  Generally speaking, liberals and Democrats have been more likely to support plaintiffs and conservatives and Republicans have been more likely to support defendants.

In the age of President Donald Trump, that rule of thumb has been turned on its head.  Although the trend may still largely hold true, it’s nowhere near as reliable as it used to be.  During our focus groups, we’ve observed that participants who identify as Trump supporters are not always as defense-oriented as Republicans have been in the past.

So what’s going on here?  It’s no secret that Trump isn’t exactly your typical Republican.  As former House Speaker John Boehner noted recently, Trump isn’t an ideological Republican in the Reagan mold – he’s primarily a populist.

One of the hallmarks of Trump’s presidential campaign was a populist theme that the little guy is getting screwed by the elites, and it’s time for the little guy to fight back.  This allowed Trump to appeal to down-on-their-luck, blue-collar types in a way that “Country Club Republican” candidates such as Mitt Romney never could.

Trump’s populism, you may notice, echoes one of plaintiff attorneys’ favorite themes – standing up for the little guy who’s being taken advantage of by the rich and powerful (be it a person or corporation).  It’s not surprising, then, that voters who responded to Trump’s rhetoric might also be receptive when it’s on behalf of a wronged plaintiff.  While “Country Club Republicans” still overwhelmingly favor defendants, the same can’t be said of Trump Republicans.

So what’s a lawyer to do?  It’s not as simple any more as trying to load the jury with Republicans if you’re a defense lawyer and avoiding them like the plague if you’re representing a plaintiff.  We’ve found that two main attributes can help you distinguish the classic defense-friendly Republicans from the more populist variety: income and education.

In our experience, jurors who have lower household incomes (less than $50,000) and less education (a high school diploma or less) are more amenable to the populist, anti-elite themes preferred by some plaintiff attorneys.  By contrast, wealthier, more educated jurors tend to identify with those elites more so than with aggrieved plaintiffs.

Of course, trends are imperfect predictors, and it is still necessary to question potential jurors closely during voir dire.  A few of the questions we recommend to help identify those with populist leanings include:

• Generally speaking, do you think corporations should be punished more harshly than individuals for similar actions?
• Do you think corporations tend to take advantage of “the little guy”?
• Do you believe hospitals and other corporations put profits ahead of people?

Every case is different, and populist themes may resonate more strongly in some venues than others.  That’s why all of our focus group reports include a detailed demographic analysis tailored to the specific case and trial jurisdiction.  If you’d like to find out more about how our research process can help you identify favorable and unfavorable demographics, please contact Senior Vice President/Partner Claire Luna at cluna@juryimpact.net.

If it’s broke, they’ll fix it.

That seems to be the mentality of many focus group and trial jurors when it comes to awarding damages.  They assume that if they award too much money, there is some mechanism within the legal system to “correct” their verdict.  We observe this same mentality when it comes to the common juror assumption that if a case makes it to trial, there must be some merit to it – otherwise, the system would have thrown it out along with other “frivolous” lawsuits somewhere along the line.

With damages, this perspective is particularly troubling since the tendency is virtually always to award more rather than less.  For jurors, the concern is that if they do not award enough money, the plaintiff will “run out” and might be stuck with no way to pay for medical care or other expenses.  This predisposition creates particularly fertile ground for the plaintiff attorney arguments that jurors often hear during closing – that this is the plaintiff’s only opportunity to recover money, so the panel has to make it count.

Unfortunately, it doesn’t go both ways, meaning we rarely see jurors award small amounts thinking it will be increased later.  We believe this is because judges can and do throw out “excessive” jury verdicts and either reduce the award themselves or grant a new trial.  Last October, a Los Angeles County Superior Court judge threw out a $417-million verdict against Johnson & Johnson – the largest talcum powder verdict in history.  In granting a new trial, Judge Maren Nelson determined “there was not convincing evidence that Johnson & Johnson acted with malice and the award for damages was excessive.”  Further, she noted the jury engaged in “serious misconduct.”

In 2016, another judge – also in L.A. County Superior Court – voided a $7.1-million award to a former Los Angeles Times sports columnist who had sued the paper claiming age and disability discrimination.  In doing so, Judge William A. MacLaughlin determined that based on what he heard during the trial, plaintiff T.J. Simers was not entitled to recover anything for lost earnings or emotional distress.

Although rare, these events garner enough media attention that jurors understandably assume judges do this far more often, and that regardless of the frequency, a judge has the power to “correct” a jury’s decision.  This leaves jurors wondering, why does our verdict matter? 

During our focus groups, we have started using different language to preface our damages discussion, emphasizing the seriousness and importance of the jury’s decision and the need to award an amount that is fair and reasonable for the injuries claimed rather than simply “whatever the plaintiff asks for.”  We also inject some lighthearted but crucial context for the kinds of numbers they might discuss, so participants understand their award shouldn’t be large enough to fund an aircraft carrier.

For example, that $417-million verdict in the Johnson & Johnson case?  That award could have purchased 2,000 Ferrari convertibles like the one in “Ferris Bueller’s Day Off,” two Boeing 777 airplanes or the Leonardo da Vinci depiction of Christ that recently fetched the world’s highest price for a painting.  When viewed in this light, even the most zealous plaintiff juror will struggle to justify such an award for one person.  It is no wonder that Los Angeles judge determined the jury’s verdict for a single plaintiff was excessive. 

If you have a case coming down the pike that has any chance of reaching runaway verdict status, reach out to Senior Vice President Claire Luna at cluna@juryimpact.net to discuss how we can help you better evaluate what jurors will think of the claim and refine the language you use in your arguments.