That Sound in the Courtroom? It Just Might Be Jurors Grinding an Axe

It happens during virtually all of our focus groups.  We’ll be discussing the facts of a lawsuit involving Patient A and a problematic labor and delivery, and next thing we know, one juror is talking about her aunt getting substandard care at the same hospital but for a totally different procedure.  Another juror embarks on a tangent about how ER waits are too long and doctors don’t listen, and a third somberly recounts her own poor childbirth experience 35 years ago.

For all three of these participants, the jump to finding in favor of Patient A is shorter than the average.  An adverse verdict is the axe they use to take out their anger at a hospital or healthcare in general, and the defense – once again – is on an uneven playing field before they ever enter the courtroom.

It’s a phenomenon we encounter all the time, and recently we asked a panel of national jury-eligible respondents whether they agreed or disagreed with the following statement: I’ve had a negative experience with healthcare and/or hospitals, and if possible I would like the opportunity to right that wrong.

An astounding 40 percent of participants agreed with this statement, meaning that nearly half (or more, in some jurisdictions) of your venire may be inclined to use your case to exact revenge for a prior bad experience. 

I’ve had a negative experience with healthcare and/or hospitals, and if possible I would like the opportunity to right that wrong.

We can project that people who thought about suing but didn't are particularly dangerous potential jurors because they never got the chance to "make it right" and they want to help someone else defeat the system.

Consider this finding in conjunction with another that we reported in a previous Things… article: 69 percent of respondents agreed that if a case makes it to a jury trial, they would assume the plaintiff’s complaint has at least some merit.

This means that when you’re at trial, a significant percentage of your potential jurors believe there is likely some fault on the part of the defendant – not just because the trial is happening, but because their personal experience tells them that bad and unjust things happen to good people.  In turn, this tends to shift the burden to the defense to prove the provided treatment met the standard of care.

That’s why whenever we assist with jury selection, even if voir dire is extremely limited, it’s crucial to probe jurors about their negative healthcare (or whatever the salient issue) experiences.  From our perspective, anyone who has had a relevant experience so negative they have considered suing, whether they actually did so or not, should be on the strike list — and voir dire questions should be designed to suss out those negative experiences.

If you would like to discuss our other “must-ask” voir dire questions and what would be most relevant for your upcoming trial, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.