Wednesday, September 10, 2014

De-Stressing the Courtroom

You’re driving through an intersection with a green light and suddenly a car rushes in front of you running the red.  Most people would immediately judge this person as reckless with no regard for others, or someone who believes the rules don’t apply to them.  However, if you were in their shoes, it's possible they were rushing a child to the hospital or had some other emergency situation and they believed they could make the light.

At some point, we’re all guilty of this situational bias, also known as fundamental attribution error or FAE.  Described another way, it’s a person’s tendency to place undue emphasis on a person’s internal characteristics – or personality – in a given situation rather than considering alternate external factors.

National Geographic recently wrote about a study by authors from University of Chicago and New York University that found stress exacerbated FAE, making subjects more likely to judge harshly.  National Geographic noted this could come into play in the courtroom where jurors are under stress and forced to make judgments in a new and uncomfortable situation.

We believe that as a result of this stress-induced FAE, jurors could judge your client with a negative bias before all the evidence is even presented.  In order to combat FAE in your case, we suggest mitigating the amount of stress placed upon jurors in a few simple ways.
  • Clear, concise explanations – When discussing the details of your case, be as clear as possible so jurors don’t have to spend extra time processing what you mean in order to keep up.
  • Simple, organized visuals – As we have discussed in previous Things… articles, featuring clear visuals and simple fonts helps jurors understand what you mean and eliminate potential confusion.
  • Respect their time – Part of the stress of jury duty is the time taken away from their other responsibilities.  By explaining things clearly and efficiently, you show the jury their time is valuable. 
We believe humanizing your client and explaining situational factors at play can also mitigate FAE.  Asking a doctor or nurse why they went into the field can help a jury understand their personality better and begin to realize there could be more factors at play rather than judging them on a fundamental level.

If you need assistance creating a clear and concise case message, please contact Senior Vice President Claire Luna at 714-754-1010 or

Wednesday, August 27, 2014

Female vs. Male Experts: Who Has the Head Start With the Jury?

Old stereotypes die hard.  No one knows that more than a woman in a male-dominated field – including the law, although that is slowly changing.

We’re sure we’re not the only ones who have noticed male expert witnesses in litigation vastly outnumber female ones.  But is there any real reason for this?  Are there times when juries might receive men better and other times they might prefer women?

That’s the question two researchers – both women, we’d like to note – set out to answer in a recent study published by The Jury Expert, an American Society of Trial Consultants publication.

For better or worse, they found gender stereotypes are alive and well when it comes to how juries see expert witnesses – a conclusion you might want to consider when both selecting and presenting your experts.

For example, these researchers reviewed a previous study that found jurors viewed male experts as better witnesses when the case involved traditionally “masculine” fields such as construction or finance, whereas women were perceived as better witnesses in cases involving “feminine” areas such as children or sexual assault. 

Perhaps not surprisingly, jurors were harshest on witnesses – particularly women – who violated societal expectations of gender-based behavior.  One study found “unlikeable” female witnesses were judged more harshly than “unlikeable” men. 

From our perspective, it is worth considering these findings as you work up and prepare cases for trial.  We’d recommend ensuring male witnesses will come across as authoritative and direct rather than meek, and suggest to female witnesses they should avoid appearing unnecessarily combative (frankly, we believe male witnesses should also strive to be pleasant rather than confrontational).  

It is also worth considering the field in which your expert will be testifying – finding the most-qualified and personable expert available is always the goal, but there may be a disconnect for some jurors if you bring in a man to talk about a topic more associated with women, or vice versa.

Of course, the jurisdiction and make-up of your jury also matter.  A jury in a liberal area or with several younger, well-educated members may appreciate an assertive female witness, whereas it might not fly in a conservative area with a jury comprising older white men.  We’ve monitored trials in the past where the defense successfully appealed to young female jurors by having older female witnesses talk about the challenges they’ve overcome to get where they are.  As with all things in trial, context matters.

We’d like to think society is moving past gender-based stereotypes, but your client is paying you to win a case, not make the world a fairer place.  As long as those stereotypes exist and affect how jurors see witnesses, you’d do well to pay attention to them.

If you’d like our help in preparing a witness appeal to your jury, we’d love the opportunity.  Please contact Senior Vice President Claire Luna at or 714.754.1010 to find out more about our witness preparation process and how we can help you evaluate how your expert will come across to jurors.

Wednesday, August 20, 2014

Selling Experts in a Skeptical World

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 an all-time high.

With the public so skeptical of traditional authorities, Internet resources have become a frequent first stop when people are looking for answers – whether the question is something as routine as “Can I ignore my check engine light?” or as potentially life changing as “Do I have cancer?”

Just last week, we were fascinated to read about a new website called CrowdMed that outsources your medical diagnosis to the public.  You submit a description of what’s ailing you, and the site’s “medical detectives” will do the sleuthing to figure out your condition.  The surprising part is CrowdMed’s detectives don’t need to be doctors or nurses, and it brags that it doesn’t care about their formal credentials – all that matters is whether they can figure out the patient’s problem.

In the courtroom, we believe the public’s widespread skepticism has important implications for expert testimony.  In a world where, thanks to the Internet, everyone’s an expert and the influence of traditional authorities is eroding, why should a jury simply accept the word of your highly paid expert?  Why is your Harvard professor’s opinion more valid than that of any schlub who can navigate over to WebMD? 

Perhaps it’s time to rethink what makes a good expert witness.  Although affiliation with a prestigious institution and winning awards are always nice qualities in a witness, they matter less in a world where the public is skeptical of those institutions.  In fact, a nationwide survey we conducted last year revealed that only 6 percent said having a famous employer (such as Harvard or Stanford) was one of their most important factors in how credible they find an expert witness – the same number who chose how many awards the expert has received.

Instead of just trusting the authorities, today’s skeptical jurors want to be convinced that an expert is credible – and nothing speaks to these jurors like experience and clear communication.  In our survey, the number one factor survey respondents said they look for in an expert testimony is years of experience (75 percent), followed closely 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 and the reasons why he or she enjoys that particular specialty.  And it may even be necessary to “re-train” experienced witnesses on the important of explaining things clearly with a minimum of 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 Senior Vice President Claire Luna at or 714-754-1010 to find out more about our witness evaluation and witness preparation services.

Wednesday, August 6, 2014

There’s No Question: Allow Juror Questions

The Boston Globe reported recently that jurors hearing a federal public corruption trial submitted an astounding 281 questions of witnesses through the presiding judge.  Based on that news, the ABA Journal posed a “Question of the Week” to its readers about whether the practice of allowing jurors to submit questions should be permitted.

This ignited a heated and sometimes nasty debate between those in favor and those opposed to the practice.  Our two cents?  In most circumstances, we enthusiastically favor juror questions.  A few reasons why:
  • Clarity – In our experience, most juror questions are simply seeking clarity on a confusing or incomplete aspect of a witness’ testimony.  We believe allowing questions helps ensure your witness has gotten his or her point across in a way jurors understand and keeps the jury from deciding a case based on misinformation.
  • You can be too close to the case – When you’ve spent months or years working on a case, sometimes you can “lose the forest for the trees” and misjudge what will be important for jurors.  Juror questions act as a safeguard in case you and your witnesses don’t recognize what jurors will find really important and want to know more about.
  • The Googling epidemic – Our research has shown repeatedly that jurors think it’s OK to use the Internet to do research about a case they’re hearing, especially if it’s just for educational or clarification purposes.  The problem, of course, is you have no idea what they’ll find.  By answering jurors’ questions during trial, you can head off their impulse to do outside research.
  • Questions are valuable intel – You can tell a lot by jurors’ questions – what they’re skeptical about, what they don’t understand and sometimes even which way they’re leaning.  These questions are the only real-time, concrete feedback you can get during a trial, and this information can help you adjust your strategy or shore up weak aspects of your case before it’s too late.
Based on the Globe article and ABA Journal debate, it seems the most common objections to allowing juror questions are that it encourages jurors to become advocates for one side or the other before the they hear all the evidence, and it takes the control of how the case is tried away from the attorneys. 

For the first criticism, we think simple procedural safeguards can prevent inappropriate advocacy.  For example, jurors should submit individual questions only (to avoid jurors discussing the case with each other) and should write their questions down for the judge and attorneys to consider.  That way nothing inappropriate or unduly biasing gets read in front of the jury.

Regarding lawyers controlling how the case is tried, we believe the modest amount of control you will give up by allowing questions is more than compensated for by the significant advantages of knowing what jurors want to hear and supplying them with the facts they need to come to an educated decision.  Just because you came into the trial with a plan and a strategy doesn’t mean it’s written in stone.

From our perspective, one of the great advantages of conducting focus group research before trying a case is it allows you to learn ahead of time what questions a jury might have and proactively answer them before jurors even ask.  If you’d like to learn more about our focus group process, or our online research process for lower-exposure cases, contact Senior Vice President Claire Luna at or 714.754.1010.

Wednesday, July 30, 2014

Answer the Demand – Don’t Attack It

We have long noted in our focus group research that jurors’ awards often skyrocket once they learn the plaintiff’s demand, and it’s not unusual for a juror to award $100,000 in damages prior to hearing the demand and then $5 million afterward.  From our perspective, the old plaintiff lawyers’ adage that “the more you ask for, the more you get” is absolutely true.

Legal scholars call this the “anchoring effect” because it effectively anchors the award to the plaintiff’s demand, and a recent study by researchers at the University of Denver and University of Arizona law schools found the effect to be dramatic.

In the study, mock jurors were presented with identical cases – except one group was presented with a non-economic damages demand of $250,000 and the other was provided a demand of $5 million.  Alarmingly, jurors presented with the higher demand awarded amounts that were 430 to 823 percent higher than those presented with the lower demand – that’s four to eight times higher – even though the facts and presentation of the case were identical.

The bad news is that none of the defense strategies tested – ignoring the demand, countering it with a much lower number or attacking it – erased this anchoring effect.  However, it’s not all doom and gloom, as the study revealed some glimmers of hope for defense lawyers.

First, proffering outrageous demands appeared to hurt the plaintiff’s credibility and chances of winning the case, as jurors who heard the high demand found for the plaintiff about 20 percent less of the time compared to those who heard the more moderate demand.

In terms of what you can control – how you respond to a plaintiff’s excessive demand – countering the demand with a more reasonable amount was significantly more effective than either ignoring or attacking it – and attacking it was easily the worst option.  

Defense attorneys are sometimes concerned that offering an alternative number might seem like an admission of liability, but the study found countering the demand actually led to more wins for the defense.  By contrast, ignoring the plaintiff’s demand reduced the defendant’s success by 6.6 percentage points and attacking it reduced the win rate by 14.7 percentage points.

Moreover, countering the plaintiff’s demand with a more reasonable suggestion of $50,000 reduced the average damages by between 9 percent and 41 percent (depending on the scenario details), confirming our long-held observation that jurors often find a number somewhere between the plaintiff and defense suggestions.  As with liability, attacking the plaintiff’s demand was the worst option, resulting in the highest average award in all scenarios.

Although scholars clearly have more research to do in this area – particularly by looking at real trial outcomes – this study demonstrates that offering a reasonable alternative to the plaintiff’s non-economic demand offers the best chance for success on both liability and damages.  It may be tempting to get on your high horse and attack the plaintiff’s outrageous demand, but the research shows this is not the way to go.

If you’d like to explore how jurors react to a damages claim in your case, we can help with either focus groups or an online study.  Contact Senior Vice President Claire Luna at or 714.754.1010 to find out more.

Wednesday, July 23, 2014

Is Personal Responsibility Dead or Alive? Depends Who You Ask.

Just like buying real estate, evaluating lawsuits is primarily about location, location, location.  As many of our clients know, a trial with the exact same case facts can produce extremely different results depending on the jurisdiction in which it is tried.  Sometimes, just being one mile on the other side of a county line can make an enormous difference regarding the decision to try a case or avoid a jury trial altogether.

During 10 years of jury research we have learned that one of the biggest differences between favorable and problematic jurisdictions is how the jurors view the concept of a plaintiff’s personal responsibility.  In some of the more conservative jurisdictions, a pregnant plaintiff who misses a handful of prenatal appointments becomes the primary focus of criticism, whereas in more plaintiff-friendly venues, a plaintiff who started prenatal care at eight months creates an increased expectation for caregivers to "do more" to ensure a healthy baby is delivered.

Likewise, a medical malpractice case involving a patient who smoked against doctors’ orders and refused to make diet changes can prompt divergent interpretations depending on the makeup of the jury.  After all, in certain jurisdictions where many of your jurors are themselves smokers, don’t count calories and have never heard of CrossFit, they are less likely to be receptive to arguments that the plaintiff’s own health choices led to a poor outcome. 

A more recent example of how perceptions of personal responsibility affect opinions is this ABC News article reporting that a Brooklyn jury just awarded $510,000 to Kevin Jarman, whose ankle was injured during his arrest for shoplifting.

Now, when you just read that article, what was your reaction?  It could probably fit into two general opinions:
  1. If Mr. Jarman hadn’t been stealing, he never would have been injured so he shouldn’t blame others for his injury, or
  2. Regardless of what Mr. Jarman was doing, the police hurt him and it’s only fair to compensate him.
In the comments sections of various news sources, these competing takes on personal responsibility are on full display (with one side being more strongly represented depending on the news source and its readership, as you can imagine).  Some commenters express their outrage that “crime really does pay,” while others argued out-of-control police departments are the problem and these lawsuits keep them in check. 

The point of all this is that every audience is different and it is always to your benefit to know what kind of audience you’ll be facing, as well as their experiences, outlooks and mindsets, before setting foot in a courtroom.  If you have an upcoming case and want to better understand the worldview of your particular jurisdiction, and how it could affect your case, please contact Senior Vice President Claire Luna at or 714.754.1010.  

Wednesday, July 16, 2014

Taming of the Juror

Teenagers are notorious for being rebellious and ignoring what authority figures tell them.  There are even online “survival guides” to help parents deal with defiant teenagers.  The problem is teenagers often still defy the rules, no matter what tactics are employed.

In our experience, there are some jurors who will behave just as defiantly as teenagers.  They may not disrupt the courtroom with outbursts or talk back to the judge, but they are likely to disregard the judge’s instructions in pursuit of what they think is right or fair.

This was borne out by a national survey we recently conducted of more than 800 respondents examining perceptions of the courtroom.  The results were alarming, and we found people with pro-plaintiff attitudes answered “yes” or “most fair” consistently to all of the following questions:
  • Even if a judge tells you that it shouldn’t, do you believe sympathy for an injured plaintiff might affect how you decide a case?
  • If the judge told you specifically not to consider lawyer fees, would you still consider lawyer fees when deciding on the amount?
  • Even if you don’t believe the defendant is at fault, would you consider awarding an amount equal to the plaintiff’s medical bills as damages in the case? 
  • Even if a judge tells you not to do outside research during trial, would you do it anyway?
  • Would you decide a case based on the letter of the law, including the judge’s instructions, or based on whatever you think is most fair?
This correlation indicates that if a juror is prone to ignore the judge’s instructions regarding one aspect of the case, they’re much more likely to disregard the judge’s instructions on something else as well, making them especially worrisome.

One way to mitigate this issue is through voir dire.  When we looked more closely at the data, we were able to identify those who had the strongest tendency to ignore a judge’s instructions across the board, and many of them shared the following characteristics:
  • 18-29 years old
  • Not registered to vote
  • Receives government assistance
  • Student
  • Democrat
  • Single
  • Rents rather than owns property
If you would like assistance in how to identify rebellious jurors or fine-tune the “fairness” message you present, please contact Senior Vice President Claire Luna at or 714-754-1010.