Wednesday, May 27, 2015

Surprises Don’t Need to Be

A federal jury on March 15 sentenced convicted Boston Marathon bomber Dzhokhar Tsarnaev to death, a verdict many viewed as a surprise.  After all, Massachusetts is one of the most liberal states in the country, it banned capital punishment in 1987 and a poll in late April showed only 15 percent of Bostonians favored executing Tsarnaev. 

But perhaps this verdict shouldn’t have come as such a surprise.  How a broader community feels about big-picture issues involved in a legal case sometimes does not correlate with how a specific trial jury will decide.  In the Boston case, the jurors clearly believed Tsarnaev’s crime was heinous enough to overcome their community’s hesitation about the merits and morality of the death penalty. 

In the civil arena, we have found jurors in even extremely conservative, anti-lawsuit jurisdictions will find for a plaintiff they believe has a legitimate grievance, and jurors in the most plaintiff-friendly jurisdictions are able to sniff out a bogus case or transparent money grab.

As our readers know, we believe focus groups are the best way to avoid surprises and find out what potential jurors think of your case independent of the community’s values.  If your case is one that could prompt even a conservative jury to render a large plaintiff verdict, it’s best to know that ahead of time. 

Focus groups are particularly effective at evaluating whether a jury is likely to find your big-picture themes compelling.  In the Tsarnaev case, only three of 12 jurors accepted the defense’s central contention that Dzhokhar was a patsy acting under the influence of his older brother.  If the defense had better tested this out in focus groups ahead of time, they might have placed less emphasis on that argument. 

Every jury is different, and it’s impossible to predict how a specific trial jury in any jurisdiction will react to a specific case.  If you’d like to avoid surprises and get a read on jurors’ reaction to your case ahead of time, we’d be happy to help.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out more about our research services.  

Wednesday, May 20, 2015

Jury Selection: A Marathon, Not a Sprint

We recently sat on a panel regarding the upcoming change in Illinois from 12-person civil juries to six.  One of the discussed advantages was the potential opportunity to spend more time questioning each juror in the venire, especially since when the number of jurors is cut in half, each becomes even more crucial to the final verdict.

One point raised was how essential it is to spend as much time questioning the last half of your venire as you do the first.  Too often we have observed due to time constraints that the first six or 10 jurors in the box receive the bulk of the questioning, with lots of time spent uncovering their relevant personal experiences and biases and simply getting them talking so the trial teams can get a read on juror personality.  Is this a leader or a follower?  Does he or she have any kind of hidden agenda?  Are there items in their backgrounds that might make them plaintiff or defense oriented, evidence unheard? 

But as more and more jurors are excused and the box refilled, the last few get short shrift.  The vast majority of the time, jurors are simply asked if they have heard what the other jurors were asked and if they have anything to say based on those questions.  As during the entire selection process, yes-or-no questions, rather than open-ended ones, tend to simply elicit blank stares.  Sometimes people speak up, but oftentimes – either because they have truly forgotten all of the questions or because they just want to expedite the process – they just shake their heads and you end up with a few people in that jury box who have never said a single word in open court.

From our perspective, you should know nearly as much about the last person to join your jury as you do about everyone else.  If not, there’s a chance a key fact or issue might be missed.  Additionally, you should take the opportunity to connect with those jurors while you can, hopefully creating an audience that from the start is more receptive to your story.

For more jury selection tips or ideas for voir dire questions for your next trial, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net

Wednesday, May 13, 2015

Show and Tell: Not Just For the Classroom

A primary focus of our research is uncovering the right arguments, language and messages to connect with the widest range of jurors possible and tell the most effective, compelling story.  However, some recent focus groups and online research projects have highlighted the importance of showing jurors, in addition to telling them.   

We have always been fans of visual timelines, but in a recent medical malpractice case this was one of the most effective, and essential, education pieces for the defense.  Not only did the timeline – incorporating entries from the medical record as well as caregiver testimony – help to establish the many actions caregivers took during a difficult, fast-paced resuscitation (the plaintiff accused caregivers of “sitting on their hands”), it demonstrated to jurors a sense of urgency and teamwork that ultimately supported the defense narrative. 

During medical focus groups, we have also found it beneficial to bring in the actual equipment used for the procedure in question – whether it be intubation equipment, resuscitation tools, IV bags or even surgical sponges.  Jurors don’t have intimate knowledge of this equipment and how it is used, and allowing them to see, and in some cases touch, these tools helps to not only identify misconceptions and crucial questions prior to trial, but also provides crucial feedback for how to present and talk about this equipment. 

For example, in a recent focus group after jurors handled an endotracheal tube and understood how it was used, they consistently referred to it as a “breathing tube,” which was a much less technical and more easily relatable name.  We also suggested to our client that when the case goes to trial, the key doctor use the equipment to explain the process to the jury.  This not only helps the jury to understand what it does, but provides an opportunity for the witness to connect with the jury while talking about what he knows best.

In addition to showing jurors, sometimes it is important to provide context for what they are seeing – especially in cases where there is unlikely to be knowledge or familiarity among laypeople.  For example, during a recent workplace injury case, jurors initially believed the design of a particular product “invited” workers to use it in a dangerous manner.  Although jurors had been shown a photo of the machine’s control panel, it was only once the various safety catchalls were described, and it was explained just how many steps the employee had to intentionally bypass in order to use the machine the way he did, were they persuaded the only dangerous aspect of the machine was the way the employee chose to use it – not the design itself.

If you have an upcoming case that could benefit from juror feedback on demonstratives and visuals, please call us at 714.754.1010 or email cluna@juryimpact.net.   

Wednesday, May 6, 2015

Deposition: Witnesses’ First Chance at a First Impression

We watch a lot of deposition videos, and too often witnesses seem rattled, nervous and, frankly, unprepared.  Unfortunately, with the growing use of technology in the courtroom, there’s a good chance a trial jury will see parts of your witnesses’ depositions during impeachment or even opening, and putting the wrong foot forward could introduce the jury to your witnesses at their worst.

Yes, you can repair some of the damage of a bad deposition by working with the witness before trial to smooth out the rough edges.  But jurors already suspect – correctly – that attorneys “coach” their witnesses, and a huge transformation between deposition and trial only confirms these suspicions and erodes the jury’s trust.  The jury might wonder whether the “real” witness is the Dr. Jekyll they saw at trial or the Mr. Hyde who showed up for deposition. 

It’s best to work these things out beforehand.  To that end, we’ve put together a few tips to make the most of your witnesses’ depositions:

  • Dress the part – There’s nothing wrong with doctors and nurses wearing scrubs for their depositions, and in fact we’ve found this bolsters a positive impression of them as “caregivers.”  (That said, please make sure they’re clean.)  In most cases, though, it’s best for witnesses to dress as if for a job interview or church, including their hair and makeup.  We’ve found jurors are thrown off by witnesses who look slovenly or overly casual.  And encourage your witnesses to dress conservatively – no gaudy jewelry or low-cut tops to distract or create a negative impression.
  • Know the case – Even though it’s part of “discovery,” jurors expect deposition witnesses to at least know the basics of their involvement with the case.  We encourage witnesses to refer to records when they are uncertain about events, but this should be to refresh their memories and locate details rather than figure out more generally what happened.  Witnesses should review all relevant records beforehand.
  • Know your message safeground – It’s a fine line between bumbling through a deposition and appearing overly rehearsed, but witnesses should have an idea of your approach to the case and the themes you want to develop.  A “message safeground” – a big-picture theme that can shape and inform all of their testimony, as well as serve as a haven when things get tough – can help witnesses avoid costly admissions.  After all, the number one goal of every fact witness during deposition is to not single-handedly sink the case.
  • Wear a wedding ring – Numerous studies over the years have found married people – especially men – are more successful in their careers in part because they are seen as more responsible.  If your witnesses are married, we’d encourage them to wear modest wedding bands for deposition.  This is particularly important for middle-aged and older men, as we’ve found through our research that when these witnesses don’t wear wedding rings, focus group jurors sometimes ask why – which is at best an unnecessary distraction. 
  • Talk to the jury – Depositions can get heated, and it’s natural for witnesses to get defensive, sarcastic and angry when being badgered by a hostile attorney.  This is best avoided, as no one is at their best and most likable when they’re on the defensive.  Here’s a trick we’ve developed: If the witness is feeling anger at the attorney get the best of him, he can address his answers to the “jury” (the camera, if one is present) rather than the attorney.  Fighting with opposing counsel is your job, not that of the witness.                                                             
  • Practice makes perfect – Deposition should not be the first time your witness has faced intense questioning by a hostile attorney.  Your preparation should consist of not only reviewing records, but also a mock cross-examination to give the witness a sense of what they’ll face.  The witness most likely trusts you, so ask someone else in your firm who they don’t know to conduct the questioning.  Practice until the initial shock of being questioned aggressively wears off and the witness can keep his or her composure.  It’s also helpful to videotape the practice sessions so witnesses can see how they might come across to a jury. 
We’ve worked with a lot of witnesses over the years, and we’ve developed many successful tips and tricks.  Unfortunately, many clients wait until after a disastrous deposition to call us in to help fix the problem.  From our perspective, that’s a wasted opportunity to have your witnesses put their best foot forward from the outset. 

If you’d like to find out how we can help your witnesses before deposition – or at any time – please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.  

Wednesday, April 29, 2015

Winning Over Women on Your Jury

In our experience, women more often than not make up a majority on a trial jury.  And in case you haven’t noticed, a large majority of trial lawyers are still men.  This creates a common dynamic in which the men in the room need to appeal to and persuade the women – a task that can be difficult for some men. 

Persuading the women on your jury is of even greater importance for defense lawyers because, as our research has consistently shown for years, women tend to be more plaintiff-oriented than men.  There aren’t any secret “tricks” or “techniques” for appealing to female jurors, but there are certainly some pitfalls to avoid and issues to consider.  What follows is a compilation of some tips and observations drawn from our experience during hundreds of focus groups and dozens of trials:
  • Be respectful – Being respectful is about more than just not referring to women as “gals” or commenting on their appearance – those should be no-brainers.  It’s also about avoiding more subtle behaviors that betray a lack of respect for women.  For example, we attended a trial during which the codefendant’s attorney repeatedly addressed a female expert witness, the head of an Ivy League medical school department, as “miss” or even “nurse” instead of “doctor.”  It was a slip of the tongue, but did he make the same mistake with male witnesses?  Nope.  Needless to say, it didn’t go over well with the female-heavy jury.
  • Avoid stereotyping – Assumptions often work out poorly at trial, and especially when it comes to making snap judgments about what female jurors will or won’t want to hear.  We once saw a plaintiff attorney start to make a football analogy then stop mid-sentence, telling the jury of six women and two men that “it probably won’t make sense to you.”  During exit interviews, one of the female jurors – a die-hard Steelers fan – was still livid about it three weeks later.
  • Don’t be overly aggressive – In our experience, few jurors of either gender like it when attorneys badger opposing witnesses, but female jurors are particularly turned off by it.  This is especially true when the witness is a woman, as being overly aggressive can make you come across as a bully and cause the female jurors to sympathize with or even feel protective of the witness.  You don’t need to wear kid gloves, but boxing gloves aren’t called for either. 
  • Be nice to female colleagues – Nothing is more cringe-worthy than when a lawyer is rude to a female paralegal, attorney or clerk in front of the jury.  More subtle is when an attorney treats women differently than men, such as calling women by their first name and men by their last.  Be a gentleman and hold the door open for everyone, not just women. 
  • Hire more women – Law is still a male-dominated field, and we still encounter firms where 80 percent or more of the attorneys are men.  When you have a diverse team, it allows you to better connect with a wider variety of jurors.  And try not to just use women as window dressing – if you have a “token” female (or African-American or young person) at counsel table who does nothing but fill a seat during trial, that can also be a turn-off.
If you’d like to hone your presentation skills or tailor your case to appeal more to your likely juror audience, we’d be glad to help.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 for more information.

Wednesday, April 22, 2015

When Patients Equate Happiness With Health


Most pregnant women say a healthy baby trumps all other concerns.  As it turns out, though, a sizeable (and vocal) group of mothers claim labor and delivery experiences have caused them trauma akin to what soldiers suffer during battle.  Even though the end result had no medical issues, these mothers say only a happy mom and baby can truly be healthy.

Web sites such as ImprovingBirth.org (tagline: American maternity care is in crisis) and hundreds of Facebook groups encourage mothers to post about their negative birth experiences.  From unnecessary C-sections to forced episiotomies, VBAC refusals and unwanted inductions, women share a variety of claims about what they describe as the “trauma” and “abuse” of giving birth in most of America’s hospitals.

It can be easy to just dismiss such women out of hand as overly emotional, but the fact remains that there is a growing sense that pregnant women should have more rights.  And hospitals are responding in kind, with an increasing number of “gentle Caesareans” provided to better involve parents throughout the surgery and allow skin-to-skin contact immediately after delivery.

These trends become relevant in the context of medical malpractice when there are allegations of poor treatment, unwanted procedures and failure to sufficiently inform the patients.  While the defense typically focuses on the science-based claims in evaluating a lawsuit, we have observed that the more emotional allegations can resonate strongly among jurors with similar negative healthcare experiences. 

This is why we have started asking in our pre-focus group questionnaires whether jurors have ever considered suing due to a poor healthcare experience – not just whether they have actually done so.  Similarly, during voir dire we recommend probing as deeply as the court will allow into relevant negative experiences, since some of the attitudes that will shape juror opinions may not come out with simple yes-or-no questions about whether they have filed a lawsuit.  For example, ask women with children whether they wanted to have C-sections rather than simply whether they had them.  Even if your case involves essentially the opposite allegation — that a C-section should have been performed earlier — a juror’s belief that they were not given enough power during their delivery experience may make them more likely to align themselves with the plaintiff.  Also, when conducting social media audits of prospective jurors, be on the lookout for “likes” or posts about activism organizations.

The concept of choice has always been of fundamental importance in telling your story to jurors.  Understanding what healthcare choices were turning points for your potential jurors, and their feelings about those choices and those of their caregivers, will be key in shaping their opinions.  Contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net if you want to discuss how to translate healthcare trends into a more effective defense story.

Wednesday, April 15, 2015

Simplicity – The Universal Language

Popular tech T.V. sitcoms such as The IT Crowd or Silicon Valley make light of the fact that “tech-talk” can be a foreign language to the general public.  To the shows’ characters, HTML is simple, but to a layperson it could look like ancient hieroglyphics.  We find it funny while watching, but forget we’re guilty of the same occupational language barriers. 

Oftentimes, those who are deeply involved in a case use legal and scientific language they don’t realize are above a layperson’s head.  While you, as an expert, may be familiar with a concept, jurors are likely learning about it for the first time.  Failing to carefully explain your reasoning can severely damage your case by confusing jurors.

Even if jurors have heard of a concept, complex legal and scientific jargon during trial could get lost on them.  It’s important to keep language simple and remember not everyone uses the vocabulary of experts with a post-graduate education.

In fact, a troubling study about literacy in the United States in 2013 revealed 21 percent of U.S. adults read below a fifth grade reading standard, increasing the need for lawyers and witnesses to ensure their language is understandable for their audience.  Even if jurors have a higher reading level, the goal is to make it easy for them to understand.  The easier it is for them to understand, the more they’ll be able to use their brain power to focus on the content of what you’re saying rather than trying to figure out the definitions of the words. 

Here are some tips to ensure your language is simple enough for a layperson to understand:
  • Use analogies:  Relate difficult concepts or abstract sizes to everyday tasks and objects.  For instance, explaining the size of a premature infant could fit into the palm of your hand. 
  • Use shorter sentences:  Make it sound conversational.  You wouldn’t use a sentence with multiple, complex clauses when talking to a friend over dinner.
  • Don’t use unnecessary large words:  If there’s a shorter word to use, use it.  Although words such as “enormous” or “utilize” may sound fancier, “large” and “use” work perfectly.  
  • When possible, use visual aids:  This will help jurors who are struggling to follow the language to comprehend the concept.
Our focus groups are a great tool to test out complex topics.  Participants will often help develop their own analogies and language from the case, figuring out the best language for you. Please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net if you would like to discuss how focus groups can help you simplify the language in your case.