Fairness Means Taking Care of Plaintiffs

We’ve previously discussed how a significant number of jurors outright disregard the law or judge’s instructions in favor of rendering verdicts based on perceptions of fairness.  Our recent online and mobile survey of 1,212 jury-eligible participants confirmed this tendency, as 43 percent openly admitted they would rely on their sense of fairness rather than the law – consistent with numerous polls we have conducted.

This time, though, we delved further into what “fair” means to jurors and established some surprising findings.

First, we learned a majority of jurors believe it is “fair” for the defense to cover the plaintiff’s medical bills – even if they don’t believe the defendant was at fault.

Second, in their quest for fairness, an overwhelming 74 percent said they would consider attorney’s fees when calculating damages.

But the most shocking aspect of this figure is the answer to a follow-up question asking if they would still consider awarding lawyer’s fees even if a judge specifically told them not to.  Thirty-three percent said they would ignore those instructions and award attorney’s fees anyway.

Finally, we learned fairness also includes the unforeseen, as slightly more than half of all respondents said they would award more money than the plaintiff demanded to ensure he or she is “taken care of.”  When evaluating a case or going to trial, we believe it’s important to understand these aspects of damages will almost certainly be on the table and are an inherent part of jurors trying to ensure the plaintiff receives all of the money the jury wants them to get.

Although the juror tendency to ignore courtroom instructions and instead rely on their sense of fairness is a seemingly negative finding, we believe this can be a good thing – as long as you and your team take it into account and present a defense story that plays to jurors’ strong desire to achieve “fairness.”  The plaintiff is likely to call on jurors to “make things right,” highlighting the importance of providing a competing narrative that ensures fairness and balance is not a one-way street and instead the “right people” are held accountable.

If you have an upcoming case and need to find ways to appeal to jurors’ inherent sense of fairness, we have a variety of research methods to help you achieve that goal.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net for more information.

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We consistently advise clients to humanize defendants as a way to help level the playing field.  In that same vein, we will be doing more to humanize ourselves by sharing notable events for the Jury

Impact team.  We look forward to working with you soon!

Senior analyst Erik Holmes will be moving to Charlotte, N.C., at the beginning of July.  His wife will be joining the faculty of the University of North Carolina at Charlotte as an assistant professor of criminal justice and criminology.  Erik will remain an integral part of the JI staff, and this move will be a great benefit to our East Coast clients.

Director of Logistics Allison Cooper gave birth Saturday, May 4, to her first child.  Her daughter, Peyton, weighed 7 pounds, 9 ounces. Baby and mom are both doing great – congratulations, Allison!

Witnesses Should Choose Wisdom Over Wisecracks

We’ve all encountered expert witnesses who think they’re the next Jay Leno, and just can’t help themselves from cracking wise and hoping to get a chuckle from the jury.  Maybe you’ve even encouraged witnesses to do this to help them establish “rapport.”

News flash – jurors couldn’t care less if your expert is funny.  

We recently conducted a nationwide survey of 1,212 jury-eligible participants, and we asked them to choose (from a list) the top three factors that would influence how favorably they view an expert’s testimony.  Only 2 percent chose humor as an important factor – tied for dead last with the witness’ gender.  In fact, more participants (3 percent) chose the witness’ race than their sense of humor.

So what are jurors looking for in an expert witness?  It turns out their values in this regard go back to our number one piece of advice during jury trials: Be considerate of the jury’s time.  Don’t waste their time with incomprehensible jargon, and make sure your experts' experience is relevant (not 30 years ago or in a field only tangentially related to the case at hand).

In fact, the number one factor survey respondents said would influence how favorably they view an expert’s testimony is experience, with 75 percent selecting years of experience as their top factor.  Coming in a strong second, at 71 percent, is the ability to explain things in simple terms.  The witness’ education came in a distant third with 52 percent.

And although a dazzling CV is nice, it may be more important to you than it is to your jurors.  Only 6 percent said having a famous employer (such as Harvard or Stanford) was one of their most important factors – the same number who chose how many accolades the expert has racked up in their field.  The number of papers the expert has published mattered to more jurors (18 percent), but it barely cracked the top five.

This survey lends credence to some of the tips we give witnesses during the hundreds of hours of witness preparation we conduct for clients every year:

• Jokes oftentimes don’t play – jurors want a witness who is considerate of their time, and humor is often at odds with being concise.
• Explain terms and educate the jury – particularly if the subject matter is scientific or technical, the ability to explain clearly is critical. 
• Reinforce your experience – it isn’t bragging for the witness to put the case in the context of how many years she has been in the field, or how many surgeries she has conducted.

Keep these survey findings in mind the next time you’re prepping a witness for deposition or trial.  And get in touch with us if you think your witness could benefit from our experience and insight.  We’ve worked with witnesses including CEOs and nursing aides, and we can help bring out their attributes most likely to appeal to jurors.

We also have a unique online witness assessment tool that can allow you to get feedback about a witness’ deposition video from real people in your jurisdiction.  There’s no reason to guess what a jury might think of your witness.

Please contact Senior Vice President Claire Luna at cluna@juryimpact.net to find out more about our witness preparation services or online witness assessment.

Life is eternal – at least when it comes to our consultations

When we state in our proposals that focus group and mock trials include consultation for the life of the case, we mean it.  Our clients have told us this is one of our best selling points, and one that we may not emphasize enough.

Whether it’s been five days, five weeks or five years since we conducted research with you, we are happy to provide further analysis of any new data or fact that has come your way in the interim (for example, a defendant has settled out or a crucial piece of evidence has been excluded), or produce a list of potential jury selection questions if trial has finally been set.  We do this because we care – we take a strong personal interest in each of our cases and oftentimes years after a focus group can still recite details of a key deposition or recall the language that switched jurors to your side.

If you have worked with us before and would like to talk through previous research with us, contact us anytime.

Where's the Video?

As mentioned in previous Things… articles, certain types of cases and jurisdictions lend themselves to jurors quickly suspecting a cover-up, even when those specific allegations aren’t being made.

The cover-up mindset can also affect other aspects of case evaluation – especially when it comes to allegations of “missing” video footage.  In today’s world, where video cameras are seemingly everywhere (on the street, waiting in line in Starbucks, in elevators, etc.), many jurors assume video footage of the incident in question exists – and become suspicious when told it does not.  In fact, when discussing dueling versions of events, the first juror question during focus groups often is, “Where’s the video?”

Especially in situations where cameras were in place but the footage is unaccounted for, skeptical jurors quickly suspect a cover-up, and we have seen plaintiff’s counsel play to those suspicions by using language such footage that has “gone missing” or has been “lost.”

We have found it useful to take the time to educate jurors about the video recording system and the data-collection system, and normalize such procedures as the overwriting of footage after a predetermined period of time – a practice some jurors are familiar with in their lines of work.  The vast infrastructure required to store years’ worth of around-the-clock, high-quality video footage from multiple cameras “just in case” would make Google blush.

Although a lack of video footage – whether because there were no cameras, or policy and procedure required overwriting after a certain number of weeks or months – creates significant challenges for the defense, it also presents an opportunity to get jurors invested in strongly considering both sides, thinking critically instead of emotionally, and taking it upon themselves to figure out the true story in the absence of video footage that might make the trial process easier for everyone.

We’ll note, too, for those times when there is video footage, testing it to find out how jurors interpret it – not just how you want them to interpret it – can be crucial.  Through focus groups and our online research process, we have prompted jurors to evaluate hundreds of hours of footage, including Taser videos, ER security camera footage and surveillance videos of plaintiffs walking, dancing and even rapping despite claims of debilitating injuries.  These findings can be game-changers in terms of how jurors view the entire case.

Whether you have video or not, give us a call to discuss how we can help you evaluate how this footage or lack thereof might shape jurors' perceptions of your case.

Life is eternal – at least when it comes to our consultations

When we state in our proposals that focus group and mock trials include consultation for the life of the case, we mean it.  Our clients have told us this is one of our best selling points, and one that we may not emphasize enough.

Whether it’s been five days, five weeks or five years since we conducted research with you, we are happy to provide further analysis of any new data or fact that has come your way in the interim (for example, a defendant has settled out or a crucial piece of evidence has been excluded), or produce a list of potential jury selection questions if trial has finally been set.  We do this because we care – we take a strong personal interest in each of our cases and oftentimes years after a focus group can still recite details of a key deposition or recall the language that switched jurors to your side.

If you have worked with us before and would like to talk through previous research with us, contact us anytime.

Defendants "Stick Together"

As many of you know, we conduct research in some pretty tough jurisdictions.  Some jury pools are more skeptical than others, more conspiracy minded or more amenable to sympathy, but we have found a common thread across the nation is the perception among many disparate jury pools that medical caregivers cover up for their co-workers when there is a bad outcome.

Due to the frequency with which we encountered this predisposition during focus groups and mock trials, we added a question to a recent national survey of 400 participants.  The responses – with nearly 57 percent believing caregivers “always” or “frequently” engage in this behavior – demonstrate jurors are even more conspiracy minded than previously anticipated.

The “cover-up” preload doesn’t stop at hospitals.  As we have focused more on examining this widespread perception during research, whether discussing police officers, a school district or managers at a meatpacking plant, during focus groups jurors consistently believe there is a tendency for defendants to “stick together” when things go south.

So how do you combat this?  We tell clients it’s important to understand the difficulty in fully overcoming this widespread predisposition, and that in most cases you need to acknowledge it up front with jurors.  Even if you don’t anticipate opposing counsel will make direct accusations of cover-ups, jurors will likely walk in with the mindset that caregivers – especially in the context of them being defendants in a lawsuit – often cover for each other. Any opportunity to introduce third-party credibility, demonstrate that certain witnesses are no longer employed there and thus have no motivation to lie, or refer to national or state standards can be beneficial in mitigating cover-up suspicions.

For more advice on how to mitigate this perception for one of your cases, please call us at 714.754.1010 for a consultation.

Life is eternal – at least when it comes to our consultations

When we state in our proposals that focus group and mock trials include consultation for the life of the case, we mean it.  Our clients have told us this is one of our best selling points, and one that we may not emphasize enough.

Whether it’s been five days, five weeks or five years since we conducted research with you, we are happy to provide further analysis of any new data or fact that has come your way in the interim (for example, a defendant has settled out or a crucial piece of  evidence has been excluded), or produce a list of potential jury selection questions if trial has finally been set.  We do this because we care – we take a strong personal interest in each of our cases and oftentimes years after a focus group can still recite details of a key deposition or recall the language that  switched jurors to your side.

If you have worked with us before and would like to talk through previous research with us, contact us anytime.  

Scales Tipped Toward the Plaintiff From the Beginning

The symbol of justice may be an evenly balanced scale, but that’s not always the reality with a jury.  In fact, an alarming number of jurors tip the scales toward the plaintiff from the outset of trial, before they hear a word from either side.

We have observed during focus groups over the years a tendency for jurors to believe there “must” have been some fault by the defendant or else there wouldn’t be a lawsuit.  These jurors seem to assume there is some kind of mechanism early on to separate the nonsense claims from the closer calls or those with merit.  In reality, however, we know judges are extremely reluctant to dismiss even obviously specious claims.

This juror tendency to believe there “must” be some merit becomes even greater should a case make it to trial, as jurors tend to believe a frivolous lawsuit would have been thrown out long before it got to a jury.  In fact, in a recent nationwide survey we conducted, an astounding 69 percent of respondents agreed that if a case makes it to the stage where it is being tried in a courtroom, they would assume the plaintiff has a legitimate complaint.

That means eight (or more) members of a 12-person jury could already be a step (or two) toward the plaintiff’s corner.

That’s why we believe it’s essential to begin during voir dire educating jurors that making it to court does not mean the plaintiff has a legitimate grievance – and identifying and weeding out those jurors who don’t get it.  We also believe it’s important, if possible, to ask for an instruction telling jurors that the fact there is a trial does not mean or imply that one side is more correct than another.

Give us a call at 714.754.1010 if you’d like to hear some of our suggestions for weaving this theme into your voir dire – and ensuring that you get as fair-minded a jury as possible.

Beyond the focus group: Our other services

Hybrid Process

Although many of you are likely familiar with our proprietary focus group format, some clients opt for a “hybrid” approach to combine the interactive aspects of focus groups with the attorney presentation features of mock trials.  This is a popular research option because the juror discussions reveal the strongest themes, language and arguments for both sides, and the mock-trial component of the exercise allows claims managers and attorneys to evaluate and hone the presentations well before trial.

Online Research

We frequently hear from clients that they have a tough case coming  up, but the exposure just isn’t high enough to merit focus group research.  These same clients are surprised to learn that for years we’ve been conducting cost-effective online research to provide high-quality feedback for lower-exposure cases.

By presenting the case facts, arguments for both sides, and evidence and demonstratives to jurors online, it not only allows you to gain similar real-time feedback as in a focus group, but it saves on facility and travel costs.

Notably, this process allows us to reach a larger pool of respondents than a traditional focus group – with a minimum of 35 online participants providing written feedback, argument ratings, witness evaluations, pertinent case questions and language and thematic suggestions.  We conduct individual interviews with at least 10 percent of respondents to dig deeper and “push back” to get the same kind of insight you expect from our live focus groups.

Other Services

Jury Impact staff assists with jury selection and trial monitoring for dozens of trials every year.  Our seasoned analysts have the resources and savvy to provide on-the-spot advice regarding your most and least troubling jurors as well as how to tailor the defense’s message to the selected jurors.

In addition, with former news reporters on staff, our exit interview process can provide valuable insight into the mindsets behind jurors’ verdicts.  These insights can be applied to future cases once you find out what worked – and what didn’t.

Advance Your Case With Advanced Technology

Many jurors could believe attorneys are riding to the courthouse by horse and buggy, judging by the antiquated technology some counsel trot out during trial.

Some lawyers worry technology can intimidate jurors or look too flashy, especially if it’s clear a corporate client is footing the bill.  But during the past seven years of juror exit interviews, with literally hundreds of jurors interviewed post-trial, not a single one has ever complained about excessive technology use.

Even in the most rural or economically troubled jurisdictions, television and movies shape juror expectations of what goes on at trial and the kinds of technology lawyers use.  This means that when lawyers use overhead transparencies rather than TrialMax, jurors believe lawyers are doing their clients a disservice by trying to advance an old-fashioned, “good ol’ boy” shtick rather than using tools that will best aid jurors’ understanding of the case.

Earlier this year, we observed a pair of Midwestern plaintiff attorneys apologize for not having the defense’s “fancy computers” and instead use transparencies and enlarged copies of records slapped with paste onto one of those tri-fold, science fair-style boards.  These homespun displays contrasted sharply with their $20 million demand.

The jurors were not impressed.  One told us during an interview last week, “I haven’t seen transparencies used since I was in kindergarten, which was more decades ago than I’d like to admit.”  Rather than artificially trying to come across “like us simple folk,” the juror added, the attorneys should have capitalized on the available technology and potentially improved perceptions of the merits of their case.

“Every time there was a record to show, the defense could pull it right up and enlarge it,” the juror told us.  “The defense clearly had nothing to hide.”

Rather than resist technology, we strongly suggest using it to your advantage.  Jurors will appreciate your seamless presentations, and you’ll give your case a professional edge.  And unlike the attorneys in the aforementioned trial, you won’t have to risk your pride by tripping over your thicket of posterboards.

To discuss potential ways to use technology during your next trial, as well as how we can help test your audiovisuals’ effectiveness before you get to the courtroom using our sister company’s smartphone survey app, please email us at cluna@juryimpact.net or call 714.754.1010.

Beyond the focus group: Our other services

Hybrid Process

Although many of you are likely familiar with our proprietary focus group format, some clients opt for a “hybrid” approach to combine the interactive aspects of focus groups with the attorney presentation features of mock trials.  This is a popular research option because the juror discussions reveal the strongest themes, language and arguments for both sides, and the mock-trial component of the exercise allows claims managers and attorneys to evaluate and hone the presentations well before trial.

Online Research

We frequently hear from clients that they have a tough case coming  up, but the exposure just isn’t high enough to merit focus group research.  These same clients are surprised to learn that for years we’ve been conducting cost-effective online research to provide high-quality feedback for lower-exposure cases.

By presenting the case facts, arguments for both sides, and evidence and demonstratives to jurors online, it not only allows you to gain similar real-time feedback as in a focus group, but it saves on facility and travel costs.

Notably, this process allows us to reach a larger pool of respondents than a traditional focus group – with a minimum of 35 online participants providing written feedback, argument ratings, witness evaluations, pertinent case questions and language and thematic suggestions.  We conduct individual interviews with at least 10 percent of respondents to dig deeper and “push back” to get the same kind of insight you expect from our live focus groups.

Other Services

Jury Impact staff assists with jury selection and trial monitoring for dozens of trials every year.  Our seasoned analysts have the resources and savvy to provide on-the-spot advice regarding your most and least troubling jurors as well as how to tailor the defense’s message to the selected jurors.

In addition, with former news reporters on staff, our exit interview process can provide valuable insight into the mindsets behind jurors’ verdicts.  These insights can be applied to future cases once you find out what worked – and what didn’t.

Common Sense May Not Be So Common

When working up cases for focus group research, we sometimes encounter trial teams inclined to skip testing a certain lawsuit because the key issues are “obvious” or “common sense.”  But in research around the country, we’ve learned a funny thing about common sense – there’s really no such thing.

Just like we suggest to witnesses that they never use the word “assume,” we’ve learned not to use that word ourselves.  We believe you always need to test your assumptions – no matter how basic they seem – before taking your case before jurors.  Although you or I may believe something to be common sense, a lay juror with a different background may view things very differently.

For example, our clients include a lot of top hospitals with sterling reputations, which on the surface seems like it could only be a positive in the context of a jury trial.  But research has shown us time and again that a top hospital’s excellent reputation can heighten juror expectations for care and outcomes and cause them to be more critical of caregivers because they hold the hospital to a “higher standard.”

In fact, 49 percent of respondents in a recent national survey we conducted "somewhat" or "completely" agreed they would hold top hospitals to a different, higher standard than other hospitals when evaluating a medical malpractice claim.  These jurors’ “common sense” is much different than yours or ours.

Top hospitals should be held to a higher standard than other hospitals when looking at a medical malpractice claim.

Similarly, what might seem like a given to a juror in a big city could strike a rural juror quite differently.  We conducted focus groups for a case where a surgeon brought a handgun to work at a rural hospital in the South.  Along with the attorneys, we anticipated jurors would be shocked by a gun in a hospital environment, but many of them insisted this doctor was simply exercising her Second Amendment rights and it had no bearing on the case.

Here are some other ways we’ve seen “common sense” turn out to be not so obvious during case research:

• You might think jurors would hold a hospital responsible for the suicide of a patient in a locked mental ward, but many in a conservative Midwest jurisdiction in fact believed it wasn’t the hospital’s fault because people intent on committing suicide will “find a way.”

• We suspected that if a pregnant woman smokes, jurors would blame the mother’s behavior for negative outcomes with the baby.  What we actually found during focus groups is that many jurors – particularly in less affluent jurisdictions – believe this known pregnancy risk elevates expectations for caregivers.

• Public opinion polls consistently told us most people have unfavorable impressions of health insurance companies, but focus group research showed participants have fairly high opinions of their own insurers – it’s the industry as a whole they don’t like.

​Keep these in mind as you prepare your next case for trial.  What may seem like common sense to you could strike your jurors quite differently – and only by doing research can you find out what your jurors are actually likely to think.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net to find out how we can help you avoid the common-sense pitfall.

Beyond the focus group: Our other services

Hybrid Process

Although many of you are likely familiar with our proprietary focus group format, some clients opt for a “hybrid” approach to combine the interactive aspects of focus groups with the attorney presentation features of mock trials.  This is a popular research option because the juror discussions reveal the strongest themes, language and arguments for both sides, and the mock-trial component of the exercise allows claims managers and attorneys to evaluate and hone the presentations well before trial.

Online Research 

We frequently hear from clients that they have a tough case coming  up, but the exposure just isn’t high enough to merit focus group research.  These same clients are surprised to learn that for years we’ve been conducting cost-effective online research to provide high-quality feedback for lower-exposure cases.

By presenting the case facts, arguments for both sides, and evidence and demonstratives to jurors online, it not only allows you to gain similar real-time feedback as in a focus group, but it saves on facility and travel costs.

Notably, this process allows us to reach a larger pool of respondents than a traditional focus group – with a minimum of 35 online participants providing written feedback, argument ratings, witness evaluations, pertinent case questions and language and thematic suggestions.  We conduct individual interviews with at least 10 percent of respondents to dig deeper and “push back” to get the same kind of insight you expect from our live focus groups. 

Other Services 

Jury Impact staff assists with jury selection and trial monitoring for dozens of trials every year.  Our seasoned analysts have the resources and savvy to provide on-the-spot advice regarding your most and least troubling jurors as well as how to tailor the defense’s message to the selected jurors.

In addition, with former news reporters on staff, our exit interview process can provide valuable insight into the mindsets behind jurors’ verdicts.  These insights can be applied to future cases once you find out what worked – and what didn’t.