Wednesday, April 16, 2014

Navigating the Perils of Juror Sympathy

The impact is undeniable.  An adorable little girl in a wheelchair, gurgling as her mother feeds her through a tube.  A grown man, formerly at the top of his career, now communicating only with gibberish.  A woman riddled with pressure ulcers confined forever to a bed, unable to do anything but stare at the ceiling while others tend to her needs.

These are the types of sympathetic plaintiffs we often encounter in our work, and even when jurors adamantly deny that sympathy will affect their verdicts, we know that oftentimes it is impossible for jurors to separate feelings from fact.

In a national survey we conducted last week of more than 800 respondents, 46 percent indicated that even if a judge tells them it shouldn’t, sympathy for an injured plaintiff would affect their decision on a case.  This finding wasn’t a surprise to us – in fact, we were just surprised the number was so low.  What was interesting to us was what emerged when we dug deeper, to see what kinds of demographics correlated with these sympathetic feelings.

We learned those most likely to say they would disregard jury instructions and let sympathy shape their verdict had one or more of the following traits:
  • Student
  • Works in hotel or restaurant
  • State or government employee
  • Hispanic/Latino
  • Younger than 30
  • Not registered for any political party or registered Democrat
Perhaps some or all of these demographics match up with your own instincts based on decades of jury selection.  Perhaps this is new information.  Either way, we believe having the data to back up assumptions is extremely helpful during voir dire and can help guide you in the right direction when it comes to making a quick call about which jurors to strike.

If you would like to learn more about the kinds of statistics we have in our database, contact Senior Vice President Claire Luna at or 714.754.1010.

Wednesday, April 9, 2014

Misconception: The Court System Weeds out Meritless Lawsuits

During our decade-plus of litigation research, we have noted a longstanding misconception among jurors that if a lawsuit makes it to trial, then the plaintiff’s case must have some merit.  In fact, our own polling of jurors nationwide showed an overwhelming 78 percent expressed this perception.

This misconception is also fueled by the widespread belief there is some “mechanism” that weeds out junk or meritless lawsuits from the system.  Many people are generally aware court systems are overloaded and municipalities have limited financial resources, and assume the courts work tirelessly to eliminate warrantless matters from the docket.

Further compounding perceptions that the plaintiff’s side automatically has some credibility is the fact so few lawsuits are actually decided in a courtroom.  In fact, a 2013 study conducted by the Association of Trial Lawyers of America revealed that only two percent of tort lawsuits ever make it trial annually.

Again, these kinds of statistics bolster the belief that if a case is one of the few that has “made it this far,” and hasn’t been thrown out or settled by now, it must automatically have some legitimacy.

As you can imagine, this misconception can put the defense team at a significant disadvantage.  So, rather than running from this major misconception, or hoping your jury panel is one of the rare ones that doesn’t feel that way, you might be better off acknowledging the topic during voir dire.  Not only can it help to identify jurors who are leaning toward the plaintiff before hearing a word from either side, it also allows jurors to consider alternative reasons why they are all sitting in the jury box, including unrealistic plaintiff demands, the possibility the wrong party is being sued or even the firm belief the defendants acted reasonably.

If you would like to discuss other issues that could benefit from some “priming” during voir dire, contact Senior Vice President Claire Luna at 714.754.1010 or

Wednesday, April 2, 2014

Off-Label Drug Use Can Be Off-Putting to Jurors

We encounter a surprising number of medical malpractice lawsuits involving off-label use of a drug – to treat something other than for what the FDA approved – even if this isn’t the primary focus of the case.  And more often than not, at least a couple of focus group jurors attack the off-label use as “experimental” or “illegal.”

Plaintiff attorneys are savvy to this perception, and they often throw in an off-label allegation to inflame the jury and make them think the defendant caregiver was engaging in an unethical practice far outside the realm of acceptable medicine.

You and I know this isn’t the truth, but how do you convince jurors off-label isn’t synonymous with malpractice?

The key – as with so many things – is education, and through the years we’ve developed a multi-pronged education strategy to help normalize off-label use:
  • Off-label use is extremely common.  The numbers are hard to pin down, but as many as half of all prescriptions written in the U.S. are for off-label uses, and the practice is a vital part of mainstream medicine.  We’ve found it’s helpful to educate jurors about common, well-known off-label drugs uses, such as the antidepressant Wellbutrin to help with smoking cessation.  By pointing to common examples most people have heard of, off-label prescriptions seem a little less out of the ordinary.
  • It is not illegal.  There is no law prohibiting doctors from prescribing drugs for off-label uses.  The FDA regulates the sale, labeling and marketing of medications, not the practice of medicine.  No one wants a bunch of government bureaucrats telling doctors how to care for patients.​
  • Unapproved does not mean dangerous or ineffective.  The FDA has approved these drugs for some purpose, so all of them have been through clinical trials to determine the side effects are acceptable.  The fact a drug is unapproved for a certain use usually just means the manufacturer did not think it was economically viable to go through the long, expensive approval process for another use since doctors are free to prescribe it for that anyway.
  • Off-label use is not experimental.  Experiments are testing to see if a drug has any benefit.  In off-label use, the doctor knows through the medical literature and his own experience there is a benefit and is doing what he thinks will be most effective for the patient.
  • It leads to advances in medicine.  Doctors discovering new uses for existing drugs is one of the major ways medical treatments advance.  They don’t do this by experimenting; rather, they prescribe the drug for an approved use and notice an unexpected side benefit, so begin prescribing it for that as well.  Often, off-label uses eventually become approved by the FDA and come to define the standard of care for an illness.

Of course, this broad-brush strategy must be tailored to the facts of each individual case.  If you have a case involving off-label drug use and want to understand more about juror perceptions, contact Senior Vice President Claire Luna at 714.754.1010 or to find out how we can help.

Wednesday, March 26, 2014

Education is the Best Medicine for Conspiracy Believers

Just a glance at the comments on the media coverage of Malaysia Airlines Flight 370 or celebrities espousing anti-vaccination proves conspiracy theorists are alive and well.  A recent study is providing some hard numbers about their prevalence, showing one of every two adults in America believes at least one medical conspiracy theory.

The University of Chicago surveyed 1,351 American adults about their knowledge and belief in six common medical conspiracy theories, e.g. that health officials know cell phones cause cancer and vaccinations cause autism but they’re not doing anything about it.  Not only did they find about half of American adults (49 percent) believe at least one of these conspiracy theories, but also 18 percent – nearly one in five adults – believe at least three of them.

Researchers also found a link between those who were “high conspiracists,” meaning they believe three or more of these theories, and health habits.  These individuals were more likely to use alternative medicine as opposed to traditional medicine.  For instance, they were more likely to use herbal supplements and less likely to have influenza shots or annual check-ups (we will note questions along these lines during voir dire can help identify potential conspiracy theorists in your jury pool).

These findings suggest the strongest conspiracy theorists may hold some inaccurate beliefs about the processes involved with traditional medicine.  Although skepticism can be a good thing in a defense juror, abject distrust or fear of the healthcare, insurance and/or political system can poison a juror from the start against your case.

The lead researcher in the study argued some people believe in conspiracies because it's easier than trying to understand complex and uncertain scientific and medical issues.  In contrast, conspiracies often promote the idea that something is bad and should be avoided, a simple premise that often resonates with plaintiff-minded jurors at trial.

That’s why educating your jurors is so crucial even during voir dire, when potentially problematic conspiracy theorists can be identified and their comments used to spark a conversation about some of the issues specific to your case.  Given their prevalence, it may be impossible to avoid a theorist or two landing on your jury, but understanding the importance of education and hard data supporting your case can help them to see your side – and at the very least, arm your advocates with debate points to use during deliberations.

If you need assistance in how to most effectively educate your jurors and identify the one out of two conspiracy theorists in your venire, please contact Senior Vice President Claire Luna at 714.754.1010 or

Wednesday, March 19, 2014

Attorney Beware: Do Your Juror Homework

No matter the courtroom, voir dire always starts the same way: jurors swear to tell the truth during the questioning that will follow.  But the truth, it seems, isn’t always so clear.

That became apparent earlier this year when a Florida judge was asked to consider ordering a new trial when plaintiff’s counsel learned – after a defense verdict – that all of the six jurors hearing the case withheld information about their own encounters with the legal system.

For some if not all of these jurors, the failure to disclose may not have been malicious; jurors later told reporters they didn’t know something such as a bankruptcy or a paternity suit constituted being “involved in a legal proceeding,” especially when the case at hand involved a seemingly unrelated issue, a civil action stemming from an assisted living facility resident’s deadly fall.  But it’s clear such information about a potential juror’s background could be crucial in deciding their ability to fairly hear a case – for example, are they bitter toward the legal system after their experience?  What does their experience tell them about expert witnesses?

It’s clear jurors can’t always be trusted to provide all relevant information, even if their sins are really more of omission rather than outright mistruths.  That’s why it’s so important to investigate juror backgrounds before trial starts: Do they owe your client money?  What do they “like” on Facebook?  Do court records reveal information they haven’t disclosed?

That Florida judge is still considering his decision to order a new trial.  Still, it’s a safe bet both sides are wishing they had done more homework on their venire before trial so there wouldn’t be any surprises afterward – especially one that might result in hundreds of thousands of dollars in legal fees to retry the case.

If you would like to talk through strategy for investigating potential jurors for an upcoming trial, contact Senior Vice President Claire Luna at or 714.754.1010. 

Wednesday, March 12, 2014

Longer Labor and Fewer C-sections – Challenging Conventional Wisdom

During thousands of juror interviews for dozens of cases over the years, we have observed one of the most widespread – almost universal – juror preconceptions is a belief C-sections are a safe, easy alternative to a long, painful labor that can be dangerous for both mother and baby.  Instead of appreciating C-sections as the risky, major abdominal surgeries they are, many jurors considering “bad baby” lawsuits suggest it would be safer to perform a surgical delivery the moment the road to delivery gets even a little a bit bumpy. 

Fortunately, things are starting to change, and recent trends and hard data are providing more ammunition to defend doctors who opt not to perform a C-section – and to reshape juror perceptions that C-sections are a “sure thing.” 

For starters, the American College of Obstetrics and Gynecology (ACOG) and the Society of Maternal-Fetal Medicine recently released new guidelines for how long mothers should labor before undergoing a C-section.  Previously, labor was considered “active” at 4 cm dilation and mothers were only allowed to push for two hours maximum before a C-section was recommended.  Under the new guidelines, active labor doesn’t begin until 6 cm and mothers can push for up to three hours (or more with anesthesia or other pain management).  The reason for this change is simple: Longer labors often produce healthier babies as contractions do their work and squeeze fluid from the baby’s lungs to clear them for their first breath.

There has also been a drastic – and quite recent – decline in the rate of early C-sections (those performed at 37 or 38 weeks gestation for non-medical reasons).  These births are down to just 4.6 percent in 2013 from 17 percent in 2010.  Doctors are increasingly holding off on C-sections until they are medically necessary, in part because there is growing recognition that babies born early have more issues with breathing, feeding and staying warm.

The takeaway is clear: A new norm is emerging in which doctors and medical authorities prefer to allow longer labors and avoid unnecessary C-sections because it provides better outcomes for babies, not just fewer risks for mothers.  This highlights the importance of educating jurors about these trends and helping them overcome decades of conventional wisdom about when a surgical delivery is appropriate.

If you have a birth injury case that could use a new perspective, contact Senior Vice President Claire Luna at 714-754-1010 or to find out how we can help.

Wednesday, March 5, 2014

Nurses Ace the Ethics Evaluation

Gallup recently released its poll on honesty and ethicsratings in professions, and once again medical professionals topped the list.  In fact, three of the top five professions Americans rated as most honest and ethical were nurses, pharmacists and medical doctors (grade school teachers and military officers were the others) – and nurses received by far the highest marks.

An overwhelming 82 percent of respondents rated the honesty and ethical standards of nurses as high or very high – a 12-percentage point lead over the second-highest profession – and 69 percent said the same of doctors.  Interestingly, medical professionals rated highly across political party and age lines – divides where we often observe big disagreements among jurors.

This isn’t a guarantee jurors will believe the caregivers you’re defending and discount the plaintiff’s story – in fact, our own surveys have shown jurors tend to believe a patient’s version of events slightly more than caregivers’ – but we still recommend using this widespread positive perception of medical professionals’ ethics and morality to your advantage.

Beginning during voir dire, you might consider polling the jury pool about how honest they find medical professionals, and if they believe any have tried to act unethically toward them.  Along with weeding out any potential jurors with axes to grind, you’ll use the power of peer opinion to make the point that doctors and nurses are widely trusted and respected.  Asking jurors the reasons they tend to trust caregivers could elicit stories underscoring the fact that almost all doctors and nurses work tirelessly to do their best for patients.

Once you have your caregiver witnesses on the stand during trial, talk to them about why they got into medicine and the role of trust in the caregiver-patient relationship.  This will help humanize your clients and reinforce the perception they’re honest and ethical, even if there are potentially lapses in care.  Jurors are more likely to forgive an honest mistake if they have faith in the caregivers’ intentions.

Although Americans’ widespread trust in medical professionals is no advantage.  If you have a case where honesty and ethics are a central concern – or you want to discuss jurors’ perceptions on other issues – please contact us at 714-754-1010 or