Things That Make You Go Hmmm...

Thinking about the 12 Days of Christmas reminds us of one of the most effective argument strategies we see: Use a couple of numbers.

Magazines are well aware of this approach. Just look at the monthly covers trumpeting lists such as “Top 100 colleges,” “400 richest Americans,” and the women’s magazine classic, “Seven Ways to Please Your Man!”

Recently we watched jurors deliberate a case in which a doctor failed to diagnose an extremely rare disease in an obese patient. The patient’s presenting symptoms: moderate muscle pain and high blood pressure. The doctor assumed a pulled muscle and too many Big Macs, and said to come back if the pain persisted. The true pain source turned out to be an extremely rare, deadly bacteria.

During discussions, plaintiff-leaning jurors zeroed in on the prevailing predisposition that “doctors are rushed and don’t spend enough time with patients.” Unfortunately, the initial pushback by defense-leaning jurors was weak: “Doctors can’t always diagnose these rare conditions right away.” The problem here was that plaintiff jurors simply could not understand just how little information the patient’s symptoms provided the doctor.

Adding a number helped change this. Jurors were introduced to some statistics: There are approximately 5,100 potential diagnoses for the combined symptoms of pain and high blood pressure. During deliberations, the defense-leaning jurors effectively adopted this number as their theme and supported it with another number: The disease occurs in no more than one in every 305,000 people.

Happy holidays and the very best wishes for the New Year.

Poll: Apparent Agency

Agency claims are some of the most difficult to defend in medical malpractice work, due to jurors’ predisposition that if a medical mistake happens inside a hospital, then the hospital is ultimately responsible.

We tried to quantify this perception in a recent national poll, asking 1,001 Americans whether they agree or disagree with the following statement:

If a medical mistake occurs in a hospital, then the hospital is responsible for everything that happens under its roof. The results show that seven out of 10 jurors are likely to assume from the outset that a hospital is responsible for the actions of any and all doctors practicing within the hospital walls.

STRONGLY AGREE: 47.3%
SOMEWHAT AGREE: 28.1%
SOMEWHAT DISAGREE: 11.2%
STRONGLY DISAGREE: 9.2%
DON’T KNOW/REFUSE: 4.2%

In addition, these perceptions of blanket responsibility increase as jurors' education and household income levels decreased. In fact, 63% of jurors with less than a high school education and 57% of those with only a high school education strongly agreed, compared to 46% of college graduates and 40% of those with post-graduate study or degrees. Finally, 64%of those with household incomes of less than $30,000 strongly agreed, while just 36% of those with household incomes of more than $100,000 strongly agreed.

Overcoming the predisposition is possible, but as you can see , getting the right jurors--and the right message--is key.

*The poll, conducted from July 24-27, surveyed 1,001 U.S. residents older than 18 and has a 3.1% margin of error.

The Dials Don't Lie

We always talk about the importance of third-party credibility in trial. Now watch us use it.

We recently conducted research for a bad faith case involving a significant jury award and an alleged failure to settle the claim beforehand. The plaintiff says the defendant insurer should have known a costly verdict was probable and ponied up more money to settle early. More specifically, the plaintiff says the defendant would have known about this risk if they had done a focus group or mock trial.

During our research, an argument testing the validity of focus groups as a method of assessing a case’s potential was the highest scoring among either plaintiff or defendant statements, with a score of 83.5. If you’ve seen our Instant Response dials in action, you know that's a "home run" score.

Knowing the potential for a multi-million-dollar verdict in this county, [the insurer] should have engaged in jury research through a focus group or mock trial to determine what the potential was for a large verdict. Instead, they went into the trial “blind” and unprepared – placing the [client’s] reputation and resources in an even more vulnerable position.

AVERAGE ARGUMENT SCORE: 83.5

Now you don't have to rely only on our (admittedly biased) opinion that focus groups are a good thing. Jurors think so, too.

ARTICLE: Jury seated for Marianna home-invasion, murder trial

From David Angier at the Panama City News Herald, we learn of a juror dismissed because she might have, possibly, just maybe, had a wee bit of trouble remaining unbiased:

A prospective juror Monday in Howard Sullivan’s murder trial had a startling revelation about a potential witness in that case.

Prosecutor Greg Wilson was asking if anyone on the panel knew Lionel Crawford when a woman raised her hand. He’d gone through a list of potential witnesses and wanted to know if familiarity with a witness would bias a juror for or against their testimony.

"How do you know Mr. Crawford?" Wilson asked.

"He shot me in 2004," the woman replied.

"He shot you?" Wilson asked. After a long pause, he said, "Would it be safe to say you’d have a problem judging his credibility in this case?"

Congratulations, Mr. Wilson, you've just been nominated for Understatment of the Year!

CLICK HERE FOR THE ENTIRE ARTICLE...

Who Do You Trust?

In our 2009 medical malpractice research, we’ve been asking jurors who they trust more, doctors or nurses. The results are eye-opening:

Of the hundreds of jurors we interviewed nationwide, 63% of those who trust nurses more supported the plaintiff.

On the other hand, only 43% of those who trust doctors more end up siding with the plaintiff.

Jurors who trust doctors and nurses “the same” backed the plaintiff even less frequently—40%.

Incorporating this question into voir dire efforts could “red flag” jurors naturally predisposed to support plaintiffs in medmal litigation.

Contact us if you are interested in hearing more about this or other findings from our juror database. Or, if you would like a full, in-person presentation of our findings, let us know.

'Extremely Bored' Runaway Juror Faces Jail Time

According to the Denver Post, a juror came down with a case of "I'm boooooooooored-itis" and, well, just went home:

HILLSBORO, Ore.—A man who left jury duty after lunch because he was "extremely bored" will be back at the courthouse Tuesday to be arraigned on a charge of contempt of court. A police report said officers found the 25-year-old man near his home earlier this month and asked why he skipped out. He said he was bored, and "just couldn't take it" anymore.

Washington County Judge Gayle Nachtigal issued a warrant for his arrest.

Though she wouldn't discuss the specific case, the judge said the maximum penalty for missing jury duty is six months in jail. Penalties, however, are generally waived if the person agrees to perform their civic duty.

We've posted before about the tendency for younger (especially web-savvy) jurors lacking the attention span to make good jurors, but this kid is taking it to a new level.

Okay...

From The Smoking Gun, we learn of one Montana resident's particular--and quite graphic--aversion to serving on a jury. This desire to avoid his civic duties prompted him to whip up a signed affidavit explaining to the court just exactly what he would rather do with his time than sit in a jury box.



Says TSG:

Slye's caustic affidavit, which he prepared with help from his wife Jennifer, can be found below. The document, of course, did not sit well with court officials and led a judge to threaten to jail Slye. But after being summoned to court, Slye apologized for the affidavit and avoided being cited on a criminal failure to appear rap. And he also was excused from serving on a jury.

Success!

CLICK HERE FOR THE ENTIRE ARTICLE (AND THE UNEDITED AFFIDAVIT)...