Guaranteed Safety: The Defense’s Unspoken Burden

We talk often in this column and in our consulting work about the “under their roof” bias, in which jurors hold a hospital responsible for any negative or unexpected outcome that happens to a patient while he or she is at that hospital, no matter whose fault it really is.  In medical malpractice defense, this bias is one of the most difficult to overcome.

A related phenomenon we’ve observed during recent research is the juror expectation of guaranteed patient safety, especially in cases involving custodial arrangements such as assisted living facilities, nursing homes, intensive rehabilitation facilities or in-patient psychiatric care.  The thinking goes that since these facilities charge money to take care of all a patient’s needs, they essentially assume responsibility for anything and everything that happens to the patient.

To many jurors, by accepting a patient, the facility effectively guarantees not only that the patient’s health care needs will be met, but also that nothing else bad will happen to them, such as suicide, becoming the victim of a crime or escaping and getting injured.  These expectations can be elevated depending on a facility’s admission and monthly price tags – and you should also be aware that fully 57 percent of jurors in one of our recent surveys indicated assisted living facilities are “overpriced” (compared to just 10 percent who said they were not and 33 percent who weren’t sure).

Complicating the issue is that many facilities – especially those serving vulnerable populations such as seniors or the mentally ill – unwittingly play into and encourage these expectations by touting residents’ security and safety in marketing materials and mission statements.  It’s all too easy for a plaintiff’s attorney to argue that the defendant “promised” nothing bad would happen to a resident, so any unfortunate occurrence must be the facility’s fault.

Like the “under their roof” bias, the expectation of guaranteed safety can be difficult to overcome at trial.  For that reason, we recommend you address it head on starting during voir dire.  This will allow you to identify and eliminate those potential jurors who hold this bias most strongly and will be unable to overcome it no matter what evidence is presented, as well as start to erode the idea of any “guarantee” in your jurors’ minds.

During trial, we believe it is essential to attack the plaintiff’s contention the defendant is responsible for anything that happens by demonstrating the event triggering the lawsuit – whether it’s a crime or an unfortunate accident – was outside what such a facility could reasonably anticipate or foresee.  This will arm defense-minded jurors to advocate to other jurors that there can be no guarantee none of life’s unforeseeable tragedies will occur.

Of course, the best way to overcome the presumption of guaranteed safety will vary greatly depending on the unique facts of each case.  If you’d like our advice on how best to apply our findings to your circumstances, contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

Reformed Smokers Can Be the Least Forgiving

A new study by economists at the Federal Reserve Bank of Atlanta made headlines last week for reporting that former smokers earn more money than current smokers and those who have never smoked.  Researchers speculated that the personality traits needed to kick an addictive habit – such as persistence and patience – are also highly valued by employers and lead to success in the workplace.

You might be wondering what this research has to do with juries.  Plenty, it turns out.  When it comes to lawsuits where the plaintiff was a smoker, obese or had health problems related to lifestyle choices, jurors who have quit smoking are more defense oriented than either jurors who still smoke or jurors who have never smoked.

Focus group jurors’ smoking history is one of numerous characteristics we track to look for trends that might help clients during jury selection.  And while a potential juror’s history of smoking may not be foremost on your mind when you’re picking a jury, the numbers indicate you’d be wise to consider smoking status as part of the whole picture.

An analysis of our past cases involving a plaintiff who smoked showed that fully 85 percent of former smokers sided with the defense, compared to 50 percent of current smokers and 80 percent of jurors who have never smoked. 

Plaintiff or Defense: Do you or have you ever smoked cigarettes?

So what’s going on here?  Based on our experience, we’ve found that people who kicked the smoking habit are particularly judgmental of those who haven’t, and those who otherwise harm their health through an indulgent lifestyle.  These jurors reason that if they can do it – “it” being quit smoking, eat less or take other steps to improve their health – than the unhealthy plaintiff should have been able to, too. 

Based on our experience, the forgiven – or reformed, in this case – tend to be the least forgiving.  These jurors took responsibility for their own health, and they expect others to as well.

We’re of the belief that when it comes to jury selection, the more information you have, the better.  That’s why we’d recommend including smoking status (current, former, never smoked) on juror questionnaires or in voir dire questioning – it’s just one more clue that can help you judge whether a potential juror would be good for you. 

We’re happy to lend you our expertise in how to craft the best juror questionnaire or voir dire questioning.  Just contact Senior Vice President Claire Luna at (714) 754-1010 or cluna@juryimpact.net.

Giving Meaning to Big Money

One of the most common frustrations shared by civil defense attorneys is the “Monopoly Money” phenomenon – the juror tendency to award big money to plaintiffs as if it were nothing more than worthless paper.  Especially when the defendant has been portrayed as a corporate entity with huge profits, jurors seem all too willing to give away large sums simply because the defendant “can afford it.”

Through our research, we’ve discovered that the main problem is most jurors just don’t have any concept of what these large numbers really mean.  To the typical middle-class juror, $2 million and $10 million are equally inconceivable sums, and both are more than most jurors will earn in a lifetime.  When the numbers are so large and abstract and jurors have the opportunity to be benevolent at no cost to themselves, why not give the plaintiff a little more for his or her trouble?  “One million, five million – it’s all the same to me,” one focus group juror said recently.

The “Monopoly Money” problem is particularly concerning when it comes to noneconomic damages.  Economic damages can at least are tied to something tangible, such as medical bills, tax returns or an economist’s report.  But noneconomic damages, to compensate for amorphous things such as pain or loss of companionship, are where jurors are most likely to give awards that seem out of proportion with the plaintiff’s injuries.

To counteract this tendency, we’ve found it necessary to give meaning to large dollar amounts by explaining them in terms average people can understand.  For example, we recently had a case in which there was virtually no permanent physical injury, yet focus group jurors wanted to award $4 million just for pain and suffering.  We broke down that eye-popping sum into something jurors could understand: $4 million is equal to $100,000 per year for 40 years.  Put in context, several jurors agreed that was an excessive amount for this plaintiff.

You might also try to get through to jurors by comparing the plaintiff’s request to what average workers earn.  For example, in the case above, you could describe $4 million as twice the median American family’s annual household income for 40 years.  For very large sums, such as $10 million, you could describe this as the median American family’s household income for 200 years. 

By comparing those big sums to what normal people – and the jurors themselves – make, you can turn the fairness issue around on the plaintiff.  Is it really fair, jurors might wonder, for this plaintiff to get an award that is 200 times what my family makes in a year? 

Whatever your tactic, we believe it is essential to put proposed damages numbers in a context that allows jurors to grasp numbers that are larger than most people can truly understand.  If you’d like our help coming up with ways to communicate these ideas to a jury, contact Senior Vice President Claire Luna at cluna@juryimpact.net.  

With Assisted Living, Staffing is the Big Concern

Jurors usually trust the skill level and training of registered nurses working in hospitals, but that high opinion does not hold true of caregivers – even RNs – in assisted living or nursing home settings.

In fact, based on a recent survey we conducted of 500 jury-eligible U.S. citizens as well as past experience in cases involving assisted living facilities, the public’s perception of staffing at these facilities should be your biggest concern if you’re defending one in court.

Asked to identify the single most significant issue facing assisted living facilities, the top two finishers involved staffing – 38 percent of respondents said their top concern was poorly trained and supervised staff, and 18 percent said it was understaffing.

Perhaps even more concerning, an astounding 72 percent of participants said neglect – another staffing-related issue – would be a top concern if they had loved ones in a in a nursing home or assisted living facility.

Survey participants were also asked to describe in their own words the kind of people they believe work in these facilities, and their answers were startling.  Common responses included “unskilled,” “uncaring,” “nurses who can’t get real jobs,” “inexperienced,” “underpaid” and “foreigners.”

The first step to counteracting these unhelpful perceptions is to recognize and be aware of them.  During voir dire we recommend questioning that will help you identify potential jurors holding these opinions and then educating them – and the rest of the venire – on the facility’s rigorous requirements for staff.

We also recommend scheduling a significant amount of prep time with your caregiver witnesses – both before deposition (especially if the proceeding will be videotaped) and again before trial.  Facility staff testimony is often the weak link in these cases, so you’ll want to make sure your witnesses are thoroughly prepared and make the best possible impression, coming across as giving and compassionate (notably, these are the two positive traits most associated with ALF caregivers).  Make sure they can all compellingly discuss why they decided to begin working at this kind of facility in order to counteract the aforementioned negative predispositions and humanize themselves as much as possible.  Jurors should hear these caregivers and want them as the caregivers for themselves or their loved ones. 

We have extensive experience helping to prepare caregiver witnesses for deposition or trial.  If you have an assisted living or nursing home case with challenging witnesses, contact Senior Vice President Claire Luna at cluna@juryimpact.net to find out how we can help get them into shape.

Humor Can Smell Funny in the Courtroom

Don West, the lawyer for defendant George Zimmerman in the Trayvon Martin case, made headlines last week for telling a joke during his opening that fell flat.  After a lengthy buildup that was almost as awkward as what followed, the joke went like this:

“Knock knock.”

“Who’s there?”

“George Zimmerman.”

“George Zimmerman, who?”

“All right, good.  You’re on the jury.”

The response to his punchline?  Chirping crickets and rolling  tumbleweeds.  (Check it out on YouTube to get an idea of just how awkward it really was: https://www.youtube.com/watch?v=cykCfynh36s).  If Mr.  West had talked to us beforehand, we could have told him that this joke – or any joke – was a bad idea.

We’ve long said humor in the courtroom is a risky proposition, and a survey we conducted recently bears this out.  Asked what qualities would make them like an attorney during trial, only 16 percent chose humor – even fewer than the percentage who prioritized “looks and appearance.”  (Years of experience and manners/demeanor were tops, at more than 60 percent each.)

Trials, whether criminal and civil, are serious business, and jurors know that.  Even though they may be bored to tears at times during a trial, jurors are not there to be entertained, and they typically don’t appreciate you wasting their time with lame jokes – or even good ones.

That’s not to say you need to be dour and somber for the whole trial.  Moments of levity arise during most trials, and it’s okay to acknowledge them with a smile or a chuckle.  But let them arise

organically rather than trying to create them.

You should also be genial and friendly with witnesses, and jurors have told us time and time again during post-trial exit interviews that they appreciate lawyers who are pleasant and dislike ones who aren’t.  That said, the number one most desirable trait in an attorney, as jurors have told us during hundreds of actual post-trial exit interviews, is a professional demeanor.

Our analysts have watched hundreds of openings and closings delivered by many different types of attorneys.  As a valued client, we’d be happy to watch or listen to you practice your opening or closing by phone or video chat and give you a critique of whether you’re hitting the right note.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net if you’d like to set up a practice run.