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 (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 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 if you would like to discuss how focus groups can help you simplify the language in your case. 

Wednesday, April 8, 2015

Making Long Odds Work in Your Favor

We’ve long been fans of incorporating numbers and data into your case whenever possible.  We find jurors like to hang their hats on hard data – even if it’s only to solidify and confirm their emotion-based, subjective feelings about a case.

One time that numbers can work against you, however, is when you’re dealing with odds and probabilities.

Consider a case where a doctor is being criticized for failing to test for and diagnose a rare disease that occurs in something like one in 500,000 or a million people.  As the defense, you might think those odds work in your favor and no reasonable juror would expect a doctor to diagnose that disease within a few hours.

You’d be wrong.  In case after case – especially in plaintiff-friendly jurisdictions – we’ve seen jurors insist caregivers should have tested for any and all possible diseases, no matter how rare. 

Although there’s no perfect solution to this issue, and some jurors just won’t be persuaded, we’ve found one successful tactic is to create a demonstrative including a long list of many possible diagnoses that were statistically more likely than the one it turned out to be.  By listing dozens of rare diseases and their incidence statistics – the very long odds that anyone would contract them – you can illustrate it is unreasonable to expect a doctor to test for all of them right off the bat and create a narrative that identifying the correct condition was like “looking for a needle in a haystack.”

Another type of case where odds come into play is one in which the plaintiff alleges he or she is at risk for some rare complication in the future.  If the odds of that happening are long, you can use your closing argument to tell jurors about other improbable things that are more likely to happen – getting killed by a meteorite (one in 700,000), being struck by lightning in your lifetime (one in 12,000) or 20 coin tosses in a row all coming up tails (one in a million). (We found a list of the odds of all kinds of rare events.)

The point is, odds can be tricky because some jurors will insist that if something can happen, it probably will – or is at least likely enough to consider that it might.  By comparing the odds relevant to your case with other occurrences that seem unfathomable – such as getting killed by a meteorite or contracting Bubonic plague (one in 3 million) – you can drive home the point that those odds are basically zero.

If your case involves odds or numbers you need to communicate to a jury, focus groups are a great way to test different approaches.  Contact Senior Vice President Claire Luna at or 714.754.1010 to find out how we can help.

Wednesday, April 1, 2015

Private Eyes Are Watching You…And Jurors Know It

These days privacy, or what’s left of it, seems to be all over the news.  Target recently paid out $10 million to settle a class action lawsuit stemming from a data security breach that caused the theft of customers’ financial and personal data.

Many people don’t know, or want to know, that companies collect and sell our demographic information, search tendencies and purchase histories to other companies.  In fact, Radio Shack announced it will sell its customer information as part of its bankruptcy proceedings. 

So how does all of this privacy talk relate to the courtroom?  Well, depending on the type of case, juror perceptions of privacy, and whether it is dead as we know it or worth protecting at all costs, can make a significant difference in how case facts, and certain evidence, are weighed. 

For example, surveillance footage of a plaintiff in a personal injury case can play very differently just by virtue of where the trial is held.  We have found jurors in some jurisdictions don’t have high expectations for privacy and generally believe it is “fair game” to film claimants in a lawsuit.  However, jurors in other trial venues are easily offended by the idea of a private investigator following plaintiffs around, filming without their knowledge, and shut out this evidence. 

Conventional wisdom states that jurors in large, urban city centers – who are more accustomed to seeing cameras in their daily lives (street corners, stoplights, grocery stores, etc.) – would tend to be less protective of privacy and more accepting of surveillance footage in a lawsuit.  Although logical, we have found this is not always true.  Depending on the unique demographic, socioeconomic and political makeup of that city center, jurors can become quite incensed by the perceived invasion of privacy and dismiss this surveillance evidence out of hand – regardless of how incriminating.

The same goes for showing jurors a plaintiff’s Facebook, Twitter or other social media postings at trial.  We have found that in certain jurisdictions there is outward hostility toward using an individual’s “digital footprint” against them in trial, and instead jurors share perceptions this information should be strictly “off limits” – prompting the trial team to find softer, more creative avenues for introducing this information.

We used to believe younger jurors – who tend to be more connected through social media and seemingly more accepting of the value proposition of losing a bit of privacy in order to gain a lot of convenience – would not have a problem with using this kind of evidence at trial.  However, we have observed that younger people can actually be the most offended by these practices – depending on who is doing the digging and why.

This speaks to the importance of understanding your jurisdiction and jurors and their unique mindsets and the environmental and social factors that contribute.  Whether by using community surveys, online research or live focus groups, we have found it crucial to test these issues and evidence before trial starts, to ensure what we think of as “slam dunk” evidence doesn’t get swatted away at the hoop due to moral qualms with the type and source of the evidence. 

If you are interested in getting juror feedback on an upcoming case, or particular pieces of evidence (the evidence itself, or even how it was obtained), please contact us at or 714.754.1010 so we can discuss the best method for your goals.    

Wednesday, March 25, 2015

Different Views in the Same Light

Social media was taken by storm a few weeks ago when an image of a dress divided people into “Team Blue and Black” or “Team White and Gold.”  For those of you who don’t spend all day poking around the Internet, the dress depicted in the link below looks very different to different people – some see it as white and gold, while others just as clearly see it as blue and black.

People were baffled that the same photograph looked vastly different to someone else, and it was shocking someone else could not see the same thing they did.  It even sparked optometrists and technology experts to publish scientific explanations of this phenomenon.

However, we weren’t surprised in the least to hear that people can receive the same information yet reach wildly different conclusions.  From the beginning of each of our focus groups – and often even at the end – participants hold markedly divergent views about a case despite the fact they’ve been given the exact same information.  A piece of evidence will seem crucial to one person but fall flat with another.

One explanation for the dress phenomenon explained that our eyes and brain use the context of daylight to interpret colors.  Like the dress, context is the key to different perceptions among jurors.  Biases and personal experiences can affect the way jurors view a case, and it is important to explore those biases before a juror sits on your trial.

During our focus groups, we spend time discussing with jurors their experiences with various aspects of the case before we even dive into the case fact pattern.  This way, we can examine how their experiences will come into play once they hear from both sides.  More often than not, when explaining their thoughts about the case, participants use phrases like, “In my experience…”  This information can be used at trial as topics to explore during voir dire to identify those with life experiences or opinions that might predispose them toward one side or the other.

At trial, it’s important to understand not everyone will see the same information in the same light.  The best way to navigate these differences in perceptions is to know the ways in which someone will interpret the evidence in the context of their own lives.  If you need assistance exploring juror perceptions in your case, please contact Senior Vice President Claire Luna at 714.754.1010 or

Wednesday, March 18, 2015

Be Careful Selling the Plaintiff Short

People generally like to think of themselves as optimistic and hopeful.  We like to give people the benefit of the doubt, and we like to think they can succeed if given the chance.  Jurors are no exception, which can put attorneys in a delicate situation when it comes to talking about some of the underlying factors that drive damages.

Consider a case involving a child with a mild brain injury.  One of the factors driving damages, of course, is whether that child will be able to work as an adult and in what capacity.  Consulting experts often opine that although the child might have some learning disabilities, he or she will be perfectly capable of working in a lower-level job such as a landscaper or kitchen worker. 

The assessment seems innocuous, but it runs up against jurors’ fundamental optimism.  We’ve found repeatedly through our research that jurors blanch at such cold calculations of a child’s potential, and they can find it insulting.  They don’t want anyone to put that child “in a box,” and they certainly don’t want the defense for the people who injured the child to do it.

The same goes for long-term care needs, one of the most significant factors driving awards.  The plaintiff’s attorney wants to downplay his client’s ability to live and function independently, and the defense wants to do the opposite.  In this case, the defense has the benefit of being the optimist, arguing that the plaintiff can achieve more and live a full life, and his experts are selling him short.

Whenever possible, we recommend placing yourself in the position of the optimist to appeal to your jurors’ good nature.  Even if the plaintiff is likely to have some limitations, stress what it is possible for him to achieve with hard work, a little help and the right attitude.  Instead of acknowledging the fact the plaintiff’s career opportunities may be limited to labor-type jobs, emphasize that he will be capable of having a fulfilling career and supporting his family.

Of course, there will be times when optimism doesn’t fit your game plan. As a defense lawyer in a case involving a severely injured plaintiff, you have little choice but to argue that person’s life expectancy will be shortened.  Needless to say, you should approach this as delicately as possible and don’t harp on it repeatedly.  Jurors aren’t illogical – most will understand that someone who is bedridden and brain-damaged is unlikely to live to be 80 – no matter what the plaintiff’s lawyer says.

Discussing these damages issues without seeming callous or insulting the jury is one of the most difficult balancing acts to manage.  But a little optimism can go a long way, and make you more sympathetic to the jurors who will be deciding your case.

If you have case involving delicate damages issues, we’d love to help you find solutions.  Contact Senior Vice President Claire Luna at or 714.754.1010.

Wednesday, March 11, 2015

When Experiences Turn Into Expertise

When a B-list actress becomes an authority on science, and thousands of parents decide not to vaccinate their children based on her contention that it causes autism, it might make an attorney question whether they really need to bring a qualified expert to the courtroom.  We have been observing more and more often that certain jurors are willing to substitute their own personal experience and the opinions of anyone with a Twitter account for science. 

This phenomenon is not limited to the vaccine issue.  According to a recent study from Pew Research, there is a wide gap between scientists’ perceptions and public perceptions about various scientific topics, ranging from genetically modified foods to evolution. 

In an era of instant access to almost unlimited information, people often believe that with a little research they can become “experts” and substitute their own judgment for that of the true experts – a dynamic we believe filters into the courtroom.

We frequently see jurors – during both focus groups and real court cases – use their own experiences and knowledge to call into doubt what expert witnesses tell them.  For example, many jurors insist a C-section is a “quick and easy” way to prevent a birth injury, despite evidence of the substantial risks of this surgery.  Similarly, we frequently see jurors opine about possible contributing factors to an illness or medical event that experts for both sides agree are totally irrelevant.

The good news is that despite the public’s misconceptions, they remain responsive to science.  Not only does the Pew study show the public holds science in high regard, but science-based arguments (involving data or detailed explanations of causation) during our focus groups typically resonate widely – especially among men. 

The catch is the arguments have to be communicated in a clear and concise way so they don’t go above jurors’ heads.  We believe it’s crucial to make sure your expert witnesses understand the importance of using layman’s terms and analogies to ensure jurors have a clear understanding of the science.

You can overcome jurors’ preconceived medical notions by using hard facts, data and clear explanations.  If you want to explore how to incorporate science more successfully into your case, please contact Senior Vice President Claire Luna at or 714.754.1010.