Wednesday, June 24, 2015

The Video Advantage

We’ve all seen them on TV: the bumbling, nervous, inarticulate spokespeople who make you not only question the content of their statements, but also the competence of the outfit that hired them.  We’ve also observed their polar opposites: polished, well-spoken representatives who also exude warmth and sincerity.  Either way, the messenger that an entity chooses oftentimes is the person by which that entire entity is judged.

Focus groups and online surveys are a great way to get juror feedback on central themes, language and arguments of your case and uncover the most effective messages for mediation and trial.  However, focus groups also provide an opportunity to gauge opinions on key witnesses and some of the messengers who will actually be delivering those messages at trial. 

The most effective way to do this is by presenting focus group jurors with short clips of witness depositions and asking jurors to rate their credibility and likeability, and articulate what stood out to them and what questions and feedback they have.  Knowing up front whether people in your trial venue view a certain witness as an effective and credible educator, or a shifty, shady question dodger, can help immensely in case evaluation and determining whether crucial fact witnesses will support or sink the defense narrative.  For example, a doctor with a thick foreign accent can play quite differently depending on the jurisdiction, and it is extremely helpful to gauge juror reactions before trial to determine whether underlying perceptions will negatively affect juror opinions about that doctor and his or her ability to communicate with patients.  

Not only does this deposition footage come in handy when testing juror perceptions of witnesses prior to trial, it is also more effective in the courtroom (if admissible) than reading transcripts aloud if that witness can’t make it to trial.  Therefore, we always recommend videotaping depositions whenever possible – especially the plaintiff’s, since her credibility is obviously central to their case, and therefore important to put in front of focus group jurors for evaluation.

However, we also understand that videotaping depositions is not always feasible, and in these cases we have recommended counsel meet with witnesses and record a “mock deposition” using nothing more than a few pseudonyms and an iPhone.  This footage, although not a formal deposition, still allows you to get important juror feedback on your witnesses and their strengths and weaknesses before ever setting foot in a courtroom.

Whether a videotaped deposition is already in the record, or the case is early and there is only an impromptu mock depo to play for jurors, we have found the feedback gleaned during focus groups can also assist in witness preparation sessions as trial approaches.  By understanding juror perceptions of overall demeanor and credibility, as well as reactions to how witnesses respond to tough questioning, prep sessions can focus on polishing strengths and trying to mitigate weaknesses. 

For example, during recent focus groups jurors articulated that although a particular surgeon came across as “arrogant” and “prickly” with a bad bedside manner, they conceded confidence and knowledge is what they would ultimately want in a surgeon performing open-heart surgery.  As a result, during pre-trial prep sessions we and the trial team focused on softening some of the harder (and somewhat distracting and negative) edges, and playing to this witness’ strengths and prompting him to talk about his experience and expertise as a surgeon – which became a major thematic element of his trial testimony. 

If you have an upcoming case that could benefit from witness evaluation, we are happy to discuss the various options and the benefits of this aspect of jury research.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 for more information. 

Wednesday, June 17, 2015

Millennials – Courtroom Wild Cards

As presidential hopefuls begin to launch their campaigns, we are reminded of the striking bipartisan gap in generational political beliefs. According to an in-depth study by Pew Research, Millennials (born between 1981 and 1996) are much more likely to be liberal leaning, whereas those of the Silent Generation (born between 1928 and 1945) are more likely to have conservative tendencies. 

Our research has consistently demonstrated a strong correlation between political ideology and verdicts, with liberals more often supporting the plaintiff and conservatives finding for the defendant.  However, Millennials are a unique generation, making them a wild card in the courtroom.  Data consistently show they are less likely to affiliate with groups – for instance, they are less inclined to register for a specific political party or be a member of a religious organization.  They are more educated, more racially diverse and less likely to be married or employed than older generations.  These characteristics make it difficult to predict how they will react to your case.

Their liberal-leaning tendencies extend into more plaintiff-friendly attributes.  Our national surveys show they consistently believe they would decide a case based on fairness rather than the law and would factor in sympathy for a plaintiff.  

Although there is typically a strong correlation between political ideology and verdicts, don’t let the generation gap fool you.  Our national focus group research, with more than 6,000 participants represented, shows Millennials are more likely to find in favor of the defense despite their plaintiff-friendly beliefs.  This pattern is consistent across all types of cases – whether it’s a medical malpractice case or employment or sexual harassment. 

Plaintiff vs. Defense Verdicts in Focus Groups Across Age

This data suggests that despite these liberal-leaning tendencies, it is possible to sway Millenials.  You just have to find the right message to persuade them.  Our focus groups are an excellent venue to explore what arguments resonate with Millennials and how they’ll react to your case.

Additionally, it’s important to understand ideology is still a strong factor.  Millennials who identify themselves as “very conservative” are 1.14 times more likely to have a defense verdict compared to Millennials who are “very liberal,” indicating a significant factor to consider during voir dire.

Our research tells us not only does political ideology play a strong role in juror perceptions, but also not to discount a juror simply because of their age.  If you would like to better understand how Millennials might respond to your case, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.


Wednesday, June 10, 2015

Science Turns Jurors Into Believers

We’ve long been proponents of introducing science and data into your trial presentation whenever possible to enhance your case’s credibility.  This is particularly important when you need to counter an opponent’s case based on emotional appeals rather than facts.

It also seems that in the context of science, it’s true that “a picture is worth a thousand words.”  A new study from Cornell University’s Food and Brand Lab finds using graphs and images to illustrate scientific concepts for an audience – be it consumers or jurors – is more persuasive than using words alone.  As the authors conclude, “A scientific appearance can generate an air of credibility and increase the persuasiveness of claims it accompanies.”

The study presented half of the participants with a brief statement about a fictional drug’s efficacy, and the other half with the same statement as well as a simple graph visually presenting the drop in incidence of illness described in the text.  Participants were then asked to rate how effective they thought the drug was.  Impressively, nearly 97 percent of participants shown the graph believed the medication would reduce illness, compared to only 68 percent of those who did not see the graph.

Moreover, the study found both groups understood the information communicated equally well, so the difference was a true persuasiveness effect related to the graph, not just that the graph helped participants understand the information better.  In other words, the graph made the information more believable.

And, consistent with our experience, the authors note that science- and data-driven visuals don’t need to be complex or fancy to be effective.  To the contrary, they cite other studies showing easy-to-process information is more persuasive to lay audiences than the complicated presentations one might see in a scientific journal.  The idea is to imbue the information with the aura and credibility of science without the presentation being more complicated than a high-schooler can understand.

Finally, the study found the graphs had a larger credibility effect on participants who indicated beforehand a greater belief in science.  This can be useful during jury selection, as you can use voir dire to both probe potential jurors’ attitudes toward science and prime the entire pool to think of scientific evidence as more reliable.

The takeaway here is pretty simple: Use science- and data-driven visuals in your trial presentation whenever you can, but make sure to keep them simple.  If you’re concerned that a demonstrative might go over jurors’ heads, ask a high school kid you know if they can make sense of it.

We have years of experience working with clients to fine-tune their science-based trial presentations, and focus groups are a great way to test demonstratives before putting them in front of your trial jury.  To find out how we can help with the science in your case – even if it’s just reviewing your demonstratives – contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010. 

Wednesday, June 3, 2015

Don’t Let Damages Damage Your Case

Determining damages awards makes jurors nervous.  And why shouldn’t it?  Most jurors don’t come equipped with business or economics degrees.  Even if they do, calculating nebulous subjects such as “pain and suffering” or “continuing medical support” baffles even the most pragmatic jurors.  As a result, these decisions are often fueled by emotion and passion rather than logic and sound math.  We often see focus group participants award millions of dollars, while other participants who heard the same exact facts and arguments award nothing. 

Plaintiff attorneys can offer nice round dollar figures supported by damages equations that give jurors something solid to hold onto in a sea of random scary numbers.  Must be nice.  Defense attorneys usually feel stuck arguing they owe nothing, even when liability is more likely than not but settlement is off the table.  However, zero isn’t a good anchor when your opponent is standing on more solid ground – especially since some jurors may believe they should award the plaintiff’s number simply by default.  In certain situations, you should consider suggesting an alternative damages amount in the event they find your client liable. 

Alternatively, try suggesting general damages scenarios that reinforce the notion that low damages or no damages are the jury’s best option.  For instance, let jurors know a damages award should take into account the plaintiff’s irresponsible behavior that exacerbated the injury, the patient’s pre-existing medical condition that contributed to the outcome, or the defendant’s actions that minimized the issue.  Arguments not strong enough to combat liability may still be valuable weapons in the battle against high damages awards.

Still, there are risks to presenting a defense alternative.  Here are some pros and cons to consider:

Pros:
  • An alternative damages theory closes the gap between zero and the likely astronomical number the plaintiff suggests is owed.  During our focus group damages discussions, countering the plaintiff’s demand with a more reasonable damages theory reduced the average award between 9 percent and 41 percent.
  • It allows jurors to believe a lower award is more fair because it takes into account both sides, rather than awarding the plaintiff a windfall.
  • It arms conservative jurors with a number other than zero, which they can leverage during deliberations to convince other jurors that lower damages are more appropriate.
  • Offering an alternative damages proposal makes the defendant seem more reasonable.  If the plaintiff clearly has needs, a life care plan should take them into account.
Cons:
  • Some jurors equate offering a number to admitting guilt. 
  • It establishes a minimum, and implies damages can go up, but not down.
  • It could disarm defense jurors who are convinced the defendant owes nothing.
The decision to offer an alternative damages number or calculation should be made on a case-by-case basis.  We suggest testing this tactic during focus groups before getting to the courtroom to see how different numbers and scenarios might play out.  If you’re interested in seeing how a jury will receive your alternative damages theory, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

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.