Wednesday, August 26, 2015

Follow the Leader

Among the lawyers we work with, and also on our own team, we have observed some ironclad “rules” for jury selection.  When it comes to cases where we are working for the defense, we always try to strike teachers.  We look critically at those who have filed a similar suit or have even thought about filing one.  One of us refuses to consider men with ponytails.

But beyond those rules, the other primary attribute we consider is leadership potential.  In fact, our juror “facesheets,” customized one-page summaries of individual jurors, include a box on top where we add a plus if we believe a person will likely be a leader in the deliberation room.  That plus goes right next to our overall juror rating, underscoring the weight we place on this trait.

Identifying the potential leaders in your venire is key, because the inclusion or exclusion of certain leaders can change the entire tenor of your trial and likely determine (or at least strongly influence) the outcome.  Whether it’s actual leadership experience such as being PTA president or head of a club or personal experience relevant to the case that might give the person knowledge of the subject matter, we have observed such people dominate a focus group conversation.  In this setting, our moderators are able to re-direct conversation to “spread the love” to the less vocal participants. 

But at trial, there may not always be a voice of reason in the deliberation room.  We have heard about leaders taking over the discussion and in some cases belittling or berating those who dare to disagree.  In the end, the verdict could very likely go the way the leader wants – regardless of whether it’s the consensus of the jury as a whole.

If you would like some guidance on the right questions to ask to identify the leaders in your venire, contact us at cluna@juryimpact.net or 714.754.1010.  We look forward to hearing from you.

Wednesday, August 19, 2015

Filing a Lawsuit Is Easy As Pie

It seems to surprise many Americans that running for president or any elected office is as easy as filing a form and meeting some minimal age and citizenship qualifications.  But that’s at least part of the reason why the current pool of presidential candidates is large enough to field two softball teams. 

It may be that the only thing easier than running for president is filing a lawsuit.  Where Jury Impact is based in Orange County, Calif., a civil case can be filed for just $225.  (The small claims filing fee is even less – just $30, or one-third the price of a ticket to Disneyland.)  But not everyone understands how simple it is to file a lawsuit, and the different perspectives on this issue can be surprisingly predictive of juror verdicts.

In research with more than 6,000 jurors around the country, one of the most striking correlations we have observed ties to responses to the question: Filing a lawsuit is a) too easy, b) just about right or c) too difficult.  Those jurors who believe filing a lawsuit is too difficult are 1.2 times more likely to find in favor of the plaintiff during our focus groups.  Those participants who consider it too easy to file a lawsuit are 1.2 times more likely to side with the defense.

Put a different way, 68 percent of those jurors who render a defense verdict believe it is too easy to file a lawsuit.  These jurors tend to believe there are too many frivolous lawsuits simply because the process is so simple, and they also are more likely to believe a plaintiff might be using a lawsuit to “game the system” or as a “get-rich-quick scheme” rather than a valid complaint.

In contrast, those jurors who believe it is too hard to file a lawsuit tend to also share the misconception that there is some “process” within the legal system that weeds out frivolous lawsuits.  This in turn creates an air of legitimacy around the lawsuits that do make it to the courtroom.  As many as 80 percent of jurors in our most challenging jurisdictions believe that if a case makes it to trial, it must “have merit.”

Next time you’re considering questions to add to voir dire, we would suggest asking about juror views on the ease or difficulty of filing a lawsuit.  The answers can be illuminating and, in many cases, predictive of juror behavior in the deliberation room.

To discuss other ways to elicit revealing information during jury selection based on our data, contact us at cluna@juryimpact.net or 714.754.1010.

Wednesday, July 29, 2015

Why Venue Matters

There are obviously many factors that go into evaluating a case and deciding whether to settle, battle it out at mediation, or go to trial – and how to identify and present the strongest arguments – but one of the most important aspects is trial venue.  We have found that no matter how good the science, documentation or the witnesses, sometimes the jurisdiction, combined with the type of lawsuit, can prevent jurors from viewing the case fairly and making decisions based solely on the evidence. 

This, of course, is the reason we fly on a weekly basis across the country to conduct research: Juror perspectives, life experiences, values and worldviews vary widely from state to state, county to county, city to city, and even neighborhood to neighborhood, and it is important to talk to members of the jury pool and understand how their unique viewpoints can shape their views on a case and affect defensibility.

For example, we do a lot of research in South Florida, and have noticed a widespread predisposition among residents that other drivers are “horrendous” and “god awful.”  (If you have ever driven the I-95 near Miami, you certainly understand this is not a radical opinion.)  However, when evaluating a case involving an auto accident, you can see how these gravely negative perceptions of the driving population could significantly affect how jurors view the case and the credibility of witnesses. 

In another example, certain areas around the country have become notorious for prescription drug abuse, and local news programs and articles frequently focus on this issue.  As you can imagine, that news coverage, in addition to personal experience with friends and family members struggling with pain pill addiction, can feed opinions among the local jury pool and automatically cause some jurors to view pain management doctors in a negative light due to perceptions they “overprescribe.”  Therefore, it is vital to gauge perceptions among the populace to understand if biases and personal experiences will cause a jury to ignore the law, increase awards or otherwise prevent the defense from getting a fair shake at trial. 

No matter what the lawsuit involves – breach of contract, accounting fraud, long-distance trucking, surgery-gone-wrong, car accidents, product liability, employee overtime disputes, sexual harassment – the trial venue can determine the difference between resolving it early or taking it all the way to the courtroom.  After all, our national survey data shows jurors in Buffalo are likely to view icy slip-and-falls differently than San Diego residents who have never seen snow in their lives – and it is beneficial to understand how geography can influence opinions, verdicts and damages.

If you want to understand how jurors in your particular trial venue for an upcoming case will view the facts, arguments, witnesses – and why – please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Wednesday, July 22, 2015

First Impressions Last


We’ve all been in the poor position of making a bad first impression, then spending hours or even years trying to dig ourselves out of that hole.  Recent research in an article from Forbes has confirmed the importance of making good first impressions, since people tend to view what they learn later about a person through the lens of what they initially believed.  Regardless of whether a person’s first impression accurately represents his or her character, humans by nature trust it.

First impressions also matter in the courtroom, where jurors will likely continue to refer back to the initial story you tell them for the duration of the trial.  We have worked on hundreds of cases and seen jurors sway back and forth between verdicts.  However, the vast majority of jurors reach a verdict that is consistent with their initial gut reaction.  Our research with more than 6,000 focus group participants shows an overwhelming 83 percent submit the same verdict at the end of the study that they reached after reading and discussing the initial case fact pattern.

That’s why it is so important to define your case’s narrative up front, establishing early on the most important themes and mitigating the most troubling opposing arguments.  Framing a compelling story that resonates with jurors’ perceptions is the key to ensuring they may interpret what they hear later in a way that benefits your client.

Additionally, humanizing your client on the stand could be the best way to change stubborn plaintiff-leaning jurors’ initial opinions.  Forbes explains first impressions can be overcome when the relationship is important to a person.  We suggest asking your client or other witnesses on the stand how they got started in their career, or include small details about their family life.  What some may view as minor or irrelevant can be crucial in creating juror appeal.

If you need help creating the best first impression for your jurors, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Wednesday, July 15, 2015

Overcoming Sci-Fi Expectations

We’ve written frequently about jurors’ elevated, unrealistic expectations for healthcare and medicine, but one area where we’ve seen this phenomenon rear its ugly head the most is related to hospital technology.  In short, jurors expect seamlessly integrated, technologically advanced hospitals like something out of a sci-fi movie or TV show rather than the imperfect reality.

For example, we’ve worked on several cases where different clocks set to different times several minutes apart gave the appearance in the medical record that inexplicable delays occurred while delivering critical medical care.  To a layperson, of course an institution as sophisticated as a hospital – where every minute counts – has all of its clocks synchronized through GPS or an atomic clock.  Right?

The reality – that MRI machines, heart monitors, wall clocks and nurses’ watches are all routinely different – surprises jurors, and they’re initially resistant to believing this is normal and acceptable at hospitals around the world and in the United States.

Similarly, we regularly encounter drug interaction or overdose cases in which it was later learned a patient had more in his system than he told caregivers.  On TV, criminal suspects and new patients alike have test results available seemingly within seconds of blood being drawn.  Surely the hospital could have run a simple tox screen and learned exactly what that patient had on board in just a few minutes.  Right?

Once again, the reality that tox screens – and many blood tests – are not routine and take several weeks to return results doesn’t meet jurors’ expectations, and they can end up holding the hospital to an artificial standard.

When expectations are so out of whack with reality, it’s an uphill battle to get jurors to accept that what you’re telling them is actually true.  To overcome this challenge, we’ve found that a two-prong strategy works best: 
  1. Rely on both sides’ experts.  Jurors know you’re paying your experts, and that you wouldn’t be paying them if they were going to say unhelpful things.  That’s why it’s so helpful to get the other side’s experts to corroborate what you and your experts are saying.  Although this can be challenging (depending on the issue), an expert can’t really avoid admitting that in fact it does take more than a few minutes or hours to get tox screen results.
  2. Repetition repetition repetition.  Entrenched beliefs are the hardest to overcome, which is why we recommend telling jurors over and over again about the reality that doesn’t match their expectations.  In the above example about tox screens, ask all of the witnesses about it, not just one.  If you’re dealing with an issue of unsynchronized clocks, hit on it in your opening, ask both sides expert witnesses’ whether their own clinic or hospital clocks are all synchronized (they’re not), and reiterate it in your closing.  By the end of trial, you’ll convince them that of course clocks aren’t all synchronized and tox screens take time. You’ve changed their expectations to match reality.
These are only two examples of how hospitals aren’t as high tech as jurors expect, and any med-mal lawyer or hospital risk manager can come up with many others.  But the principles of how to overcome them apply no matter what the issue.

If you have a case where you’re facing elevated, unrealistic juror expectations, we’d love to help.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 for more information. 

Wednesday, July 8, 2015

The Stickiness in Solidarity

We’ve all been there when deciding to go to a group dinner: one person wants burgers, one person wants tacos and someone else is on a diet.  Choosing a restaurant that all 10 friends can agree on seems like an impossible task. 

Yet, juries made up of strangers from different backgrounds are asked every day to come to a consensus when reaching a verdict.  Getting 12 people to agree on anything seems like a daunting task, let alone a complicated legal case with thousands of pages of documents.  

Although it’s not necessary in many civil trials to reach a unanimous verdict, examining how groups of people form a consensus gives us an insight to how jury deliberations work and how we should frame our cases.  So how exactly does a diverse group of people come to a unanimous decision?

California Institute of Technology research recently combined neurology and social science to examine the biology behind forming a consensus.  They hooked up one individual to an fMRI machine to examine his brain while he worked remotely with five other people (who were off site in a separate room) to make a group decision during various trials.  Researchers found participants’ choices were determined by their own preferences, the group members’ previous choices and the “stickiness” of group members’ choices.  “Stickiness” refers to the willingness of a group member to “stick” to his or her decision.  These aspects of the decision-making process were each highlighted in a different part of the brain and combined in another part of the brain, illustrating it is a combination of all three that leads to consensus decision-making.

This Caltech study shows there is a biological basis in forming a consensus.  Although jurors’ personal choice comes into play, a large portion of their decision is driven by the group’s mentality and the ability of others in the group to conform to the majority.  Therefore, if you have a juror who is dead set on a particular verdict, that juror can actually sway others to change their minds. 

That’s why understanding what jurors think of your case before it goes to trial matters so much.  It’s important to examine not only how jurors react to particular arguments, but also what kinds of jurors to look out for during voir dire. 

To assess potential jurors' “stickiness,” we suggest asking questions during voir dire that elicit a scaled response to gauge the strength of a person’s opinion.  For instance, on our questionnaires we ask participants, “Generally speaking, corporations deserve to be punished more harshly than individuals” with “completely agree,” “somewhat agree,” “I don’t know,” “somewhat disagree” and “completely disagree” as their responses.  Jurors who answer using “completely” are more adamant in their beliefs and are less likely to be swayed.  Those who answer in the middle of the scales are more open to changing their opinion.

If you want to discuss how our focus groups can identify the issues that will build consensus in your trial jury, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net

Wednesday, June 24, 2015

The Video Advantage

We’ve all seen them on TV: the bumbling, nervous, inarticulate spokespeople who make you not only question the content of their statements, but also the competence of the outfit that hired them.  We’ve also observed their polar opposites: polished, well-spoken representatives who also exude warmth and sincerity.  Either way, the messenger that an entity chooses oftentimes is the person by which that entire entity is judged.

Focus groups and online surveys are a great way to get juror feedback on central themes, language and arguments of your case and uncover the most effective messages for mediation and trial.  However, focus groups also provide an opportunity to gauge opinions on key witnesses and some of the messengers who will actually be delivering those messages at trial. 

The most effective way to do this is by presenting focus group jurors with short clips of witness depositions and asking jurors to rate their credibility and likeability, and articulate what stood out to them and what questions and feedback they have.  Knowing up front whether people in your trial venue view a certain witness as an effective and credible educator, or a shifty, shady question dodger, can help immensely in case evaluation and determining whether crucial fact witnesses will support or sink the defense narrative.  For example, a doctor with a thick foreign accent can play quite differently depending on the jurisdiction, and it is extremely helpful to gauge juror reactions before trial to determine whether underlying perceptions will negatively affect juror opinions about that doctor and his or her ability to communicate with patients.  

Not only does this deposition footage come in handy when testing juror perceptions of witnesses prior to trial, it is also more effective in the courtroom (if admissible) than reading transcripts aloud if that witness can’t make it to trial.  Therefore, we always recommend videotaping depositions whenever possible – especially the plaintiff’s, since her credibility is obviously central to their case, and therefore important to put in front of focus group jurors for evaluation.

However, we also understand that videotaping depositions is not always feasible, and in these cases we have recommended counsel meet with witnesses and record a “mock deposition” using nothing more than a few pseudonyms and an iPhone.  This footage, although not a formal deposition, still allows you to get important juror feedback on your witnesses and their strengths and weaknesses before ever setting foot in a courtroom.

Whether a videotaped deposition is already in the record, or the case is early and there is only an impromptu mock depo to play for jurors, we have found the feedback gleaned during focus groups can also assist in witness preparation sessions as trial approaches.  By understanding juror perceptions of overall demeanor and credibility, as well as reactions to how witnesses respond to tough questioning, prep sessions can focus on polishing strengths and trying to mitigate weaknesses. 

For example, during recent focus groups jurors articulated that although a particular surgeon came across as “arrogant” and “prickly” with a bad bedside manner, they conceded confidence and knowledge is what they would ultimately want in a surgeon performing open-heart surgery.  As a result, during pre-trial prep sessions we and the trial team focused on softening some of the harder (and somewhat distracting and negative) edges, and playing to this witness’ strengths and prompting him to talk about his experience and expertise as a surgeon – which became a major thematic element of his trial testimony. 

If you have an upcoming case that could benefit from witness evaluation, we are happy to discuss the various options and the benefits of this aspect of jury research.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 for more information.