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 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 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 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

Wednesday, June 18, 2014

First Step to Persuading Jurors: Simplify

Recent news out of California shows it might be impossible to simplify things too much for a jury.  A Fresno jury’s confusion about how to fill out the verdict form — they acquitted an accused burglar instead of indicating they were deadlocked as they intended — meant the man was freed from custody.  A few hours later, he was killed in a fight at a relative’s house.

Some might be inclined to dismiss these jurors as “stupid” and consider their verdict form dilemma a one-off.  However, this attitude ignores the reality that it doesn’t matter why the jury didn’t know how to fill out the form (and along the same lines, why jurors don’t understand concepts you may find basic such as agency or negligence).  All that matters is that for these jurors, this was their reality, and neither the attorneys nor the judge simplified the verdict form in a way that made sense to them.

Our experience has taught us that the side with the simpler story has the advantage.  Put another way, as one of our clients told us recently, “When you’re explaining, you’re losing.”

The point is that in this information-heavy world, where infinite data is available at the touch of a smartphone screen, delivering an effective story to a jury means providing the simplest package possible.  That package has to include discussion of the verdict form so jurors know what to expect when they start deliberating.

Concepts such as negligence, cause and agency can consume entire chapters in a law school textbook, but put these words on a verdict form and we expect jurors to understand them with a two-paragraph instruction.  Countless times we have interviewed jurors after a trial and heard, “I still don’t really know what negligence is.”

We often tell our attorney clients they know their cases too well, potentially producing false assumptions about what their jurors should, or will, understand.  This can also result in bad assumptions regarding jurors’ ability to navigate the verdict form, and attempts to educate your jury should always include an explanation of the verdict form and the concepts it contains. 

If you would like to talk with us about how best to explain some of the key concepts in one of your upcoming cases, please contact Senior Vice President Claire Luna at or 714.754.1010.

Wednesday, June 11, 2014

Conspiracy Theories More Common Than You Might Think

We’ve written before about jurors’ tendency to invent and embrace conspiracy theories during the course of a lawsuit, and those of our readers who have done focus groups with us have likely seen that dynamic in action.

It turns about that tendency – particularly as it relates to medical conspiracy theories – is even more pronounced than we thought.  A new study by a University of Chicago political scientist published in March in the journal JAMA Internal Medicine found that half of Americans – and likely half of your jury panel – believe at least one popular medical conspiracy theory.

Among the highlights, the study found more than one-third of respondents believe the FDA is keeping natural cancer cures off the market because of pressure from drug companies, 20 percent think cellphones cause cancer but the government is ignoring it to appease corporations, and 20 percent believe doctors and the government know vaccines cause autism but continue using them anyway.

It takes no great leap of imagination to conclude jurors holding these views might be quicker to assume doctors, hospitals or corporations being sued would engage in a cover-up.  The challenge, of course, is to identify these potential jurors during voir dire – before they have a chance to poison your jury.

The study found people who embraced conspiracy theories tended to be less educated, poorer and members of minority groups.  But a deeper look reveals some interesting trends that could give you a leg up during voir dire.

For example, conspiracy theorists were less likely to use a primary care doctor for medical advice and instead relied on the Internet and celebrity doctors such as Dr. Mehmet Oz.  In fact, more than 80 percent of people who look to celebrity doctors for medical advice believed at least one of the conspiracy theories.  Conspiracy believers were also more likely to buy organic foods, take herbal supplements and avoid vaccines. 

Interestingly, political liberals and conservatives embraced conspiracies in almost equal numbers (with conservatives being slightly more conspiracy-minded), so don’t rely on political ideology alone during jury selection.

What ties this all together is a deep distrust of institutions and authority, whether it be government or the health care industry.  From our perspective, these are the types of issues you should probe during voir dire: Do you think hospitals put profits before people?  Do you trust your doctor to give you unbiased advice, or do you look for advice elsewhere?  Do you think vaccines cause autism or cell phones cause cancer?

If you have a case where conspiracy might rear its head, it might be worth it to see how this plays out in focus groups.  Contact Senior Vice President Claire Luna at or 714-754-1010 to find out how we can help.

Wednesday, June 4, 2014

Separating Jurors’ Desire to Help From Their Verdict

Juror sympathy is a force to be reckoned with, despite judges' instructions telling them to separate emotion from verdict, as we have explored before in this space.  But the more important question to us is how a plaintiff might be able to secure a verdict based on sympathy alone.

Consider some of our recent focus group cases, when staunchly defense-minded jurors indicated willingness to change their verdict once they learned their inclinations meant the plaintiff would not get any money.  Again, these were participants who not only believed there was no breach in the standard of care, but were also convinced in most cases of an alternate, more logical cause for the plaintiff’s injuries than the alleged negligence.  Yet they were willing to put these convictions aside in the name of compensating the plaintiff.

In a recent national survey we conducted of more than 800 potential jurors throughout the United States, one-fifth of the participants – 20.2 percent – stated they would be more likely to side with the plaintiff if they knew a vote for the defendant meant the plaintiff wouldn’t get any money.  They believed this to be true “even if a seriously injured plaintiff hadn’t convinced you to support their case.”

In looking more closely at those 20.2 percent, a few commonalities stood out.  Those most likely to side with the plaintiff to ensure they would get money were young and “untethered.”  For example, 18- to 29-year-olds, those who rent, single people and the unemployed were all almost twice as likely to say they would be more likely to side with the plaintiff.  Surprising to us was the fact that those who currently serve in the military were nearly three times as likely to vote for the plaintiff in this scenario.

We have had some success in shifting this mindset by focusing jurors on one of the concepts they hold most dear: fairness.  By asking jurors if it is fair to find against a defendant they truly do not feel did anything wrong, they oftentimes conclude on their own that although they would like to find a way to give the plaintiff money, it would not be just to do so.

If you have a case where you’re concerned jurors’ desire to help the plaintiff may prompt them to ignore what they truly believe about liability, contact Jury Impact Senior Vice President Claire Luna at or 714.754.1010.  We would love to talk with you.

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Are any of you planning to attend the 2014 DRI Trucking Law Seminar in Las Vegas this month?  If so, please make sure to say hi to Claire, who will be leading a presentation on working with challenging witnesses.