No One Wants to Meet a “Risk Manager”: Define the Language, Control the Debate

We recently met a defense attorney who chatted with us about a potential client meeting the following week on a “whistleblower” case.  Our free, unsolicited advice to pass on to that potential client?  Stop calling it a whistleblower case – a whistleblower is someone who jurors want to protect, someone who comes into the case with a distinct credibility advantage.  Instead, we suggested, describe it as a lawsuit filed by a “disgruntled employee.”

Along the same lines, no hospital patient or visitor wants to meet a “risk manager.”  Think about it – the title combined with the timing (typically right after a negative event) might as well be “the person who tries to keep me from filing a lawsuit.”  A designation that would likely create much more positive associations would be “patient advocate.” 

Defining the language allows you to control the debate.  Instead of allowing opposing counsel to control the conversation with their biased vocabulary, set your own terms with defense-oriented language that tells your story.

And it’s not just us who say so.  In a survey conducted last week by our sister company, Surveys on the Go, two-thirds of participants across the country agreed they view a “whistleblower” positively.  Nearly as many respondents agreed the phrase “risk manager” carries negative connotations.

Next time you’re thinking about how to tell your story in court, as well as the words opposing counsel will use to tell their story, consider the power of language.  You can even use language to turn a weakness into a strength.  For example, with an inexperienced nurse or doctor that the plaintiff lawyer will describe as a “rookie,” go on the offensive and humanize him or her for the jury as “fresh,” “energetic” and “current on all of the newest medical advances.”

If you’d like our input on how to control the language – and the debate – for one of your pending cases, call us at 714.754.1010 or email Senior Vice President Claire Luna at cluna@juryimpact.net.  

MedStar’s Larry Smith – In Court, “Fairness” Matters More Than the Law

Jury Impact’s new monthly Internet radio show “Trial Talk” interviews high-profile leaders in litigation to get their opinions about trial trends around the country.  In our first edition, we interview Larry Smith, head of risk management for MedStar Health, on trial tactics, characteristics of a great defense lawyer and the future of healthcare in America.

To listen, click here Larry Smith Interview or visit our website at www.juryimpact.net.

Here are some snippets of the interview:

Q:        What’s the most important quality of a great trial lawyer?

A:        “Somebody who can tell the story, somebody who can convey [to a lay jury] a very complex set of medical issues.  It is almost like everything else that we do in life – [to be successful you must have an] ability to relate.  The ability to relate from one human being to another makes a tremendous difference…  In medicine, sometimes the law doesn’t mean a whole awful lot.  What does mean a lot is the story.”

Q:        How do different jurisdictions influence verdicts?

A:        “Malpractice is a local phenomenon. [At MedStar] I have six different jurisdictions I have to worry about: five in Maryland and one in the District of Columbia, and they are all different.  If you take the same case and try that case in DC 10 times, you may win that case eight times.  If you take that same case and try…in Baltimore City with the same witnesses, same everything, [you are likely to] lose that case probably [eight out of 10 times].  So part of the analysis has to be, ‘do I realistically have a chance with a jury [in this jurisdiction] to prove to them what I need to prove in order to prevail?’”

Q:        How important is “humanizing” witnesses?

A:        “One of the lawyers I enjoy working with said to me before a trial – we [were putting on the stand] one of [our] nurses [who was also] one of the defendants [in the case] who was really well credentialed.  She also was a member of the Armed Forces before she became one of our [nurses] – and he said, ‘I’m going to spend 30 seconds on her academic credentials, and I’m going to spend 10 minutes on her personal credentials.  I’m going to [show] this jury what a wonderful person [she] is.’  And, I’ve got to tell you, just watching the jury…you could see them really tuned in.  They could care less what school she went to; they loved [the fact that she served her country and had given such great] public service...”

Q:        What’s the next “big thing” in healthcare?

A:        “We’re not [slowly] moving towards [hospitals employing doctors], we are right in the thick of it… I looked at the data recently, and four years ago about 50% of the physicians in this country were employed [directly] by a healthcare [system] or an insurance company.  Today, that [number] is 77% and it is expected in the next two years to be over 80%.  So, we are talking about a smaller and smaller number of physicians who are going to be independent and more and more physicians who are going to tie their [professional] practice to a healthcare [system] such as MedStar…or one of the insurance companies...” 

Q:        Talk about the future of patient care.

A:        “I have seen lots of changes—managed care and the coming and going of managed care, development of healthcare systems like MedStar.  What we’re seeing right now, I hope, is…the beginning of…a transformation [in the] way in which we provide care to patients.  …If it is done right, rather than being reimbursed… on [the basis of] what I do to the [patient], I’m going to be rewarded on how well I [maintain the health of] populations of [patients]. …[How can I keep] people out of hospitals, [and how can I keep them at home] with their families?” 

Jury Impact will be conducting these interviews monthly, so if there are any topics you would like explored, or suggested guests for our show, please feel free to call us at (714) 754-1010 or email us at cluna@juryimpact.net. 

‘Indeterminate’ Doesn’t Mean Emergency

During recent birth injury cases across the country, we have observed a troubling juror tendency to equate an “indeterminate,” Category II fetal monitoring strip with one that is abnormal or non-reassuring. To these jurors, anything that isn’t clearly “good” or “reassuring” is by default a reason for concern.

Needless to say, this can be problematic for defense teams because so many strips are, or become, indeterminate – for reasons as innocuous as the baby sleeping or the mother moving around. Yet jurors often expect providers confronted with anything other than “reassuring” strips to immediately move to “get that baby out” by emergency C-section – especially if they can use the hindsight knowledge that the baby came out injured.

Through our focus group research we have developed some simple juror education strategies to approach this issue:

• “Indeterminate” doesn’t mean “borderline” or “emergency.” Use your experts to educate jurors that indeterminate strips aren’t necessarily concerning findings, and most babies will have Category II strips at some point during labor. Most often this perfectly healthy baby is just sleeping.
• Emergency C-sections are risky. C-sections have become so common that jurors perceive them as nearly risk-free procedures. Educate jurors that all “C-section surgeries” have significant risks – especially emergency procedures that leave no time for thorough preparations such as contacting the blood bank or getting an anesthesiology evaluation.
• A C-section is never automatic. When addressing the juror perception that indeterminate strips require an emergency C-section, it is useful to educate jurors that ACOG guidelines do not recommend an immediate C-section section even for non-reassuring Category III strips. There are other steps that can and should be attempted first.
• External fetal heart monitors have limitations. These tools to provide a basic picture of a baby’s health, but cannot show pre-existing injury or predict injuries during labor. Since the advent of fetal heart monitors, the rate of newborns with cerebral palsy has remained the same.

Have you encountered these perceptions? We would love to hear about your experiences and ideas for addressing this issue, please call us at 714.754.1010.

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Jury Impact welcomes Dr. Chris Condon, an expert in survey methodologies and statistics, who will oversee the design, fielding and analysis of Jury Impact’s quantitative research projects. Prior to joining the team, Dr. Condon was a senior statistician at the American Institutes for Research (AIR), an international educational consulting organization. Before that, he served as a researcher for the Johnson O’Connor Research Foundation, which conducts large-scale aptitude testing.

Humanizing the Messenger

You’ve heard us talk about humanizing corporate or governmental clients at trial, but remember, lawyers need to humanize themselves as well.

A fundamental part of forging the connection between jurors and your side of the story is giving juries a messenger they connect with. Recently, we watched an attorney do just that leading the defense’s voir dire.

Instead of launching into questions that managed to be both tedious and invasive, as the plaintiff attorney had done, he stood up holding a single sheet of paper – the same ones the jurors had used to prompt them on their basic demographics. And after cheerfully telling jurors he would never ask them to talk about things he wouldn’t himself, he told them his name, marital status and occupation.

When he reported his time in the county – “about six days” – the jurors laughed, and he successfully diffused any attack the plaintiffs were going to make on our “cowboy” lawyer defending cases 1,500 miles from home.

In two minutes, this attorney endeared himself to the venire and set the tone for trial – straightforward and worried less about offending than about being honest.

Jurors are more observant than they get credit for. They notice American flags on a lawyer’s lapel or the license plate frame on a lawyer’s car, and they listen more carefully than you might imagine. Following a recent trial in Utah, exit interviews revealed that jurors noticed and appreciated our attorneys’ ability to personalize themselves, whether conscious or not.

One juror noted that she saw an attorney with a parking sticker for the same amusement park her children love. Another juror told us that she “appreciated” the attorneys’ personal comments, such as when an attorney mentioned her grandmother came to watch her examine a key witness, or the other lawyer used a hypothetical and alluded to the fact his own daughter had seizures when she was younger.

Although we always urge you to choose your words carefully, in the sea of blue suits and bankers boxes, showing a bit of humanity provides an advantage when telling your side of the story.

If you would like to discuss this and other methods of connecting with a jury, or any other topic related to an upcoming case, please call us at 714.754.1010.

Keeping Google Outside the Jury Box

Trial jurors are constantly admonished to only consider evidence they hear in the courtroom from the witness stand and exhibits, but this doesn't match up with many Americans' attitudes about what is acceptable behavior for a juror, according to a recent survey conducted by our partner company, Surveys on the Go.

In fact, nearly three-quarters of Americans believe it is acceptable for empaneled jurors to conduct Internet research about legal, medical or technical terms or concepts they hear in court, and 23 percent believe it is acceptable for jurors to research details of the case they are judging, according to the survey of 799 potential jurors nationwide.

As we have observed during jury research and actual trials around the country, jurors allowed to educate themselves can be their worst teachers, looking for information that seeks to confirm what may be inaccurate assumptions that could help the other side.

This underscores what savvy trial lawyers already know - in an era of smartphones and near-universal Internet access, it is more important than ever for judges to emphasize (and re-emphasize) that it's never OK for jurors to research anything related to the case, no matter how innocuous they think it is.

If you would like to talk about how to apply these findings to one of your cases, please call us at 714.754.1010. Happy holidays and Happy New Year from the Jury Impact team! We hope to see all of you in 2012.