Tuesday, February 16, 2010

Jury Impact's 2009 Med-Mal Awards

The “fashionistas” are out and E!’s “Red Carpet” is back, and that can only mean one thing – Oscar season. So in the spirit of the festivities we’re presenting our own "2009 Med-Mal Awards!”

Last year, we conducted research in med-mal cases nationwide. Despite radical differences in fact patterns and jurisdiction, similar themes--for the plaintiff and defense--always seem to register. We see it time and again…jurors “classify” cases into a few categories. That means common themes emerge. So which themes were juror favorites in 2009?

First, our award for Most Popular Plaintiff Theme. And the nominees are:

Delays in Care
Communication Breakdowns
Not Enough Tests
High-Risk Patients Deserve a Higher Level of Care
The Splash Effect: when jurors apportion responsibility to everyone
because they perceive negligence on one party.

And the award for Most Popular Plaintiff Theme goes to…“The Splash Effect!” In a whopping 38% of cases, we saw “splash” in one form or another.

Next, our award for Most Resonant Defense Theme. And the nominees are:

Credible Alternate Causes
Inevitable Outcome
Moment-to-Moment Care
Personal Responsibility: either failing to take care of themselves
and/or for not communicating with caregivers.

And the award for Most Resonant Defense Theme goes to…“Inevitable Outcomes.” In a massive 56% of our cases last year, jurors expressed the opinion that “outcomes were inevitable” because a pre-existing or rare condition prevented caregivers from effectively diagnosing or treating the patient.

Uh-oh, the band is starting to play. How close was the vote? To find out, or for more information about themes that resonate and the language we use to address them, please don't hesitate to contact us.

-Stephen Duffy

Thursday, February 11, 2010

Toyota's Troubles

In our automotive research experience, we’ve learned that just as Volvo is associated with “safety” and Mercedes-Benz with “luxury,” the Toyota brand carries incredibly strong connotations with “reliability.” Furthermore, many consumers agree Toyota’s sterling reputation for trouble-free ownership is worth a premium over other more “stylish” or performance-oriented brands.

Now, Toyota’s reputation for dependability is under siege. And from our perspective, the company mas made some crucial mistakes in addressing consumer anxiety.

In Jury Impact President Chris St. Hilaire’s upcoming book, The 27 Powers of Persuasion, three chapters specifically apply to Toyota’s current situation:

*Go on the Offensive
*Take Responsibility—It Will Be Assigned Anyway
*Release Bad News—All of It—Quickly

One of the most essential elements of any messaging campaign is going on the offensive. Whether presenting at trial, selling a product, or addressing public relations nightmares, we always stress to our clients the importance of going on the offensive. Toyota, on the other hand, seemed until recently to be taking a reactive approach to criticisms.

In September 2009, after concerns surfaced about accelerators sticking under floor mats, causing four deaths, Toyota recalled 3.8 million autos (this followed a 55,000-vehicle recall in 2007 for the same issue).

The first apology from CEO Akio Toyoda, when he reassured the public “we guarantee [our customers’] safety,” was on January 29 of this year. That four-month delay is hardly going on the offensive.

From a PR perspective, Toyota has seemed content trying to isolate its issues to a few specific models and fighting fires only as they flare up. Specifically, since the floor mat and sticky accelerator issues surfaced, a Toyota Prius and Lexus HS250h recall has been issued related to faulty brakes, and reports are now surfacing about steering problems with Corollas. Making matters worse, Toyota now admits it was fully aware of these braking problems yet chose not to issue a fix or recall.

This failure to act (including an early refusal to fix accelerators already at the dealership because, according to its U.S. Safety spokesperson, “Toyota continues selling models involved in the recall, expecting that they work fine because they are new and the throttles don't seem to begin sticking until the vehicle ages”) has led to yet another PR-horror show as the National Highway Traffic Safety Administration has opened an investigation. Toyota’s piecemeal approach to revealing problems it was well aware of has drawn out what could have been one really bad news week into a months-long cascade of bad press.

This stresses the importance of releasing bad news—all of it—quickly. Toyota’s reactive, after-the-fact strategy for addressing problems puts the company at a disadvantage for several reasons: 1) It is spending too much time responding to new criticisms to get ahead of the bad news, 2) waiting for the attacks to come in before addressing known issues makes the company seem defensive instead of preemptive, and 3) there is a growing perception Toyota is are not proactively monitoring vehicle safety, and only addressing things for which it is “caught in the act.”

By waiting too long to go on the offensive, being slow to address new concerns, and failing to put all of the bad news on the table at once, Toyota has allowed the media to control the message, resulting in public relations nightmare and a piling-on effect.

In a February 9 Washington Post op-ed, Toyoda explained what the company is doing to prevent issues like these from arising in the future, specifically a "top-to-bottom review" of Toyota's global operations. That’s great news, but a bit late. This apology, in which he concedes Toyota needs to investigate consumer complaints more quickly, comes after months of failing to investigate consumer complaints more quickly.

However, the company should be credited for finally taking responsibility. Some would say it’s a bold move, but based on our experience, responsibility will be assigned anyway—so if you’re aware of problems, it’s always better to admit mistakes as early as possible.

Which brings us to another crucial element to a successful communication campaign: presenting a cohesive, consistent message. Instead of creating new messages for each new problem, from early on Toyota could have been playing to longstanding predispositions about its product quality and presented a broad message to address the safety and reliability of the larger brand.

Consumers don’t care which models have steering issues, which are prone to floor mats jamming under the gas pedal, the parts supplier responsible for faulty pedals, or the intricacies of the dealership and factory fixes—they just want to be reassured the car they’re driving is safe. And that’s the big picture message that seems to only be coming out now in recent mea culpas, press releases, and television ads.

Considering Toyota lost $21 billion in market share in just one week, these blunders clearly aren’t minor. Instead, they highlight the consequences of failing to go on the offensive with a cohesive, consistent message. However, they will have fresh opportunities to apply these messaging principles, as CNN reports the lawsuits have already started in earnest.

We hope that Honda, which just issued a major recall related to airbags, will learn from Toyota’s missteps.

-Todd Fairbanks