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.
