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 cluna@juryimpact.net 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 cluna@juryimpact.net 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 cluna@juryimpact.net 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 cluna@juryimpact.net 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 cluna@juryimpact.net or 714-754-1010.

Wednesday, July 9, 2014

Googling Gets the Green Light


Mug shots, unsavory posts, silly “likes” and embarrassing photos – these are all things found during our social media audits of prospective jurors for our cases.  Although we have known social media and Internet searches to be worthwhile for some time, the American Bar Association has finally given the seal of approval to “Google” potential jurors.

The ethics of social media audits have been a gray area in many jurisdictions, since sites such as LinkedIn might notify a user of another person accessing their page – which could be construed as communication with a juror.  However, The American Bar Association has decided such searches are not considered communication unless the searcher “friends,” “follows” or “likes” the juror’s page.

Researching and getting to know your jurors could reveal what subtle ways you might use to connect with jurors during trial, or which arguments to steer clear of for fear of offending one of the panelists.  However, The American Bar Association warns against taking this too far, citing an example of using fishing metaphors during a trial where the jury contains some avid fishermen, since this grays the area between knowing your audience and making jurors feel as though they are being “watched.”

In this day and age of electronic footprints on the web, we recommend as much research as possible without overstepping the lines established by The American Bar Association.  Our team is able to research numerous jurors during the short time between receiving the jury list and choosing the members in the same morning or afternoon.  Finding a juror has a soft spot for cancer awareness in a misdiagnosis trial, extensive knowledge of commercial driver protocol or a bias regarding a particular hospital could mean the difference between a defense or plaintiff verdict.

These audits are also valuable during trial to see if jurors are following orders to refrain from posting or commenting about the trial.  If selection time is so short that quick searches won’t reveal any damning information, further research after the jury is picked could prove helpful to make sure jurors are following instructions not to post about the trial.

If you have an upcoming trial that would benefit from some extra Googling, jury selection or monitoring assistance, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Wednesday, June 25, 2014

Let Your Witness Make Conversation


People can be quick to judge those who fill their speech with “um” and “well” and “I guess.”  To a listener, such disfluencies have the potential to reduce perceptions of the speaker’s intellect.

However, a recent study published in The Journal of Language and Social Psychology examined transcripts from previous studies and showed those who use filler words such as “like” and “you know” are more conscientious and thoughtful.  The authors of the studies indicated these filler words as used are markers to show the individual’s desire to share or rephrase their opinions to others. 

Although we have found some filler words such as “um” can indicate a witness’ lack of confidence, the idea behind this study is a useful one: certain filler words help a witness come across as more conversational and better able to explain concepts simply.

In fact, earlier this year we conducted a national survey of more than 800 jury-eligible participants and asked them to list what characteristics were most important in an expert witness.  Consistent with our previous research, the ability to explain things in simple terms was one of the top traits.  Approximately 64 percent of jurors rated it as one of the top characteristics (second only to years of experience).

When a witness explains a key medical procedure, the safety procedure for a bus driver or the science behind traffic patterns, complex technical jargon can get lost on jurors.  Lay jurors appreciate a witness who is able to connect with them on the same level and educate them about complicated information in a simple and conversational way.

When we work with doctors or nurses, we ask them to explain complicated procedures the way they would to a patient, and this helps them adapt their language to the audience.  However, people in other industries don’t have this experience and can have a difficult time translating their advanced level of knowledge, so preparation is key before deposition or courtroom testimony.

If you have a case involving complex concepts and would like help finding the best way to educate jurors about them, or help prepping a witness to explain things more conversationally, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.