Jury Impact - Things That Make You Go Hmmm...

Keeping Google Outside the Jury Box

2012-01-09T16:45:00.000-08:00

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.

Hitting the Experience Sweet Spot

2011-12-05T13:18:00.000-08:00

When it comes to selecting caregivers, it turns out neither
Doogie Howser prodigies nor elder statesmen are a juror’s ideal.
We fielded a survey earlier this month and asked the nearly 800
respondents to tell us the “ideal number” of years a doctor or
nurse should have under his or her belt.

It turns out the sweet spot is six to 10 years, with 55 percent of
participants choosing this as the experience level they want in
their healthcare provider. Eleven to 20 years of experience fared
almost as well, with 34 percent of respondents wanting a doctor
with this number of years in the field.

To us, the outliers were the most interesting aspect of this survey. While only four percent of respondents preferred five or fewer years of experience, only six percent wanted a healthcare provider with 20 to 30 years. Less than two percent believed 30 or more years was the ideal.

These “sweet spot” biases uncovered in the survey are consistent
with those we have observed jurors apply in the courtroom.
Exit interviews conducted over the years have indicated the most
effective experts typically are those who jurors want astheir own
doctor or nurse. Just as jurors often have a difficult time trusting
an unseasoned “rookie,” so too are they skeptical of a doctor with “too much experience” and a potentially obsolete education. We have also heard the “arrogance” often associated with doctors is believed to be magnified among the oldest in the field, who jurors consider to be “too stubborn” to consider the latest research, medical advances or differing opinions when providing their opinions.

If you are in the position of presenting a highly experienced – or
the opposite – witness at trial, we suggest making your weakness
your strength. For the newbie, project energy and focus on
the fact he or she knows the latest in medical advances. For
the veteran, discuss that person’s high level of experience, the
“hundreds” or “thousands” of applicable procedures that person
has performed, and review any and all continuing education that person has received to ensure their knowledge base is relevant.

If you would like to talk about how to apply these findings to one
of your cases, please call us at 714.754.1010.

Book review: '27 Powers' convinces By the Deseret News

2011-10-12T08:55:00.000-07:00

Book review: '27 Powers' convinces
Published: Tuesday, Oct. 11, 2011 12:08 p.m. MDT
By Rhett Wilkinson, For the Deseret News

"27 POWERS OF PERSUASION: Simple Strategies to Seduce Audiences and Win Allies," by Chris St. Hilaire, Penguin, $15, 240 pages

Leaning over someone, using five minutes to make your audience feel safe and staying in the present were just a few of the many, though often obvious, suggestions of persuasion given by Chris St. Hilaire in his book, "27 Powers of Persuasion," which has recently been released in paperback.

It's quite amazing to consider the many ways in which one can break down the methods of persuasion. For those who might think that a businessman, lawyer, politician, or reporter can simply walk into a room and cause everyone to agree with his or her points of thinking, St. Hilaire would argue otherwise.

Some readers may read a chapter in the book — each of which focuses on a particular method of persuasion — from the tactics mentioned above to using third-party validation and being your own pundit. Oft times, the suggestions seem of common sense, though others may not strike readers as such.

St. Hilaire uses excellent examples ranging from sports figures to business entrepreneurs to demonstrate his points — showing tact in one of his own suggested methods, "mak(ing) sure everyone's invested."

St. Hilaire also uses appealing personal examples, including, among other examples, the time he wore a pink shirt as a part of helping a team of lawyers recognize their reality.

In doing so, St. Hilaire has appealed to readership beyond just law or journalism, but to business owners and even parents striving to guide a family. St. Hilaire's appeal to a wide demographic through his strength of parallels is found from start to finish.

www.27powersofpersuasion.com

"Right Track"/"Wrong Track" -- Which is the Better Juror?

2011-05-26T11:30:00.000-07:00

Are juror perceptions about America’s direction predictive of how
they might decide a case? The short answer is "yes.” After
792 interviews it’s clear — jurors who think the country is on the
wrong track demonstrate a stronger likelihood of voting for the
defense.

Over the past few years, our voter polls have mirrored national
polls which show the country’s citizens increasingly pessimistic
about our nation’s future (“Is the country on the right track, or
off on the wrong track?”). We wanted to see how these trends
were affecting juror verdicts — so we took a look at our data
from the past year. Overall, our jury samples show the same
downward trend, with respondents increasingly perceiving the
country on the wrong track.

Surprisingly however, our data demonstrated a strong
correlation between juror-respondents who believed the
country was on the “wrong track” and jurors siding with
the defense. In fact, 60% of jurors who reported
believing the country is on the“wrong track” also sided
with the defense during jury exercises. Those who
selected “right track” were evenly divided among
plaintiff and defense verdicts.

Do you think the United States is on the Right Track or Wrong Track?

So what do we do with that information? Well, if you’re stuck
on whom to eliminate (and working with the defense) — odds
are you should select the “wrong track” juror. It’ll increase
your odds of finding the juror mindset most predisposed to
understanding your side of the story. Call us if you’d like an
evaluation of your next case.

Judges Are People Too

2011-04-12T11:07:00.000-07:00

You’ve likely heard us make the point that research is just as meaningful for cases you know will be bench trials as it is in jury trials – because themes that resonate with jurors often apply to judges as well.

A recent defense verdict for a case we worked on drove home this point, as several of the judge’s findings might as well have been lifted verbatim from our focus group report.

The case involved an internationally known shipping company that switched vendors for unloading services. Vendor A sued, accusing the shipper of stealing financial secrets and feeding them to a new potential Vendor. They claimed that Vendor B’s proposal undercut their prices, and that’s why the new vendor snagged the contract.

From the defense perspective, Vendor A wasn’t even in the running for the contract, given its poor productivity and equipment so outdated that one employee described its facility as a “forklift graveyard.”

Research participants heard the details and determined that the defendant acted “unethically but not illegally.” And here’s a direct quote from the judge’s final ruling: “The defendant’s conduct was likely unethical, but not illegal.”

The judge went on to cite several points for both sides that were spot on with what the focus group uncovered.

This is why it’s important to remember that judges and jurors have a lot in common. Aside from technical issues of law, judges are just as attuned as jurors to arguments that resonate based on common sense and prevailing predispositions. Whether your case will be heard by a judge, mediator, or a group of people who couldn’t get out of jury duty, we always advise telling a simple, effective story.

Jury Impact in the New York Times

2011-04-12T08:50:00.000-07:00

Jury Impact is once again in the news, with Chris St. Hilaire quoted in the Monday edition of The New York Times. Here is an excerpt from The New York Times article: Bonds Jury Hears About Injection Again but Reaches No Verdict

Chris St. Hilaire, the president of Jury Impact, a jury-consulting company based in Costa Mesa, Calif., said the jurors probably asked for Kathy Hoskins’s testimony and a transcript of the Hoskins-Anderson tape because they were debating Bonds’s alleged injections.

“There’s a very strong possibility, based on the type of questions they asked and the information they asked for, that there is some contention among them,” St. Hilaire said. “There could be a couple of people who are holding out because they are strict constitutionalists or maybe there’s a guy who just doesn’t want to convict his favorite ballplayer. Or there could be someone with a strong personality who just refuses to give in.”

St. Hilaire said the evidence might have been enough to make it seem to the jurors that Bonds used steroids and human growth hormone, and was injected by Anderson, but in criminal cases, prosecutors must prove guilt beyond a reasonable doubt.

“In a criminal trial, if he probably did it, it’s not good enough,” he said. “That’s a nuance that sometimes escapes the layman.”

Jury Impact in Bloomberg and The New York Times

2011-03-16T15:01:00.000-07:00

Jury Impact is once again in the news, with Chris St. Hilaire quoted in Thursday editions of Bloomberg and The New York Times.

Here is an excerpt from The New York Times article Selecting Jury for Bonds Is Hard in Giants Country.

Chris St. Hilaire, president of Jury Impact, a jury consulting company based in Costa Mesa, Calif., said that finding a juror without a predisposition toward Bonds would be a challenge.

“Finding someone who doesn’t have an opinion about Barry Bonds is like finding a cowboy who doesn’t have an opinion about a horse,” he said, adding that the ideal juror is likely to be a casual fan who has heard of Bonds, but does not know much about him or the charges against him.

“You’d think that the perfect juror would be someone who loves baseball, but I think the worst juror for them would be a hard-core fan,” he said of what the defense might be looking for. “You want someone who can be swayed by the evidence, not by their agenda.”

And an excerpt from Bloomberg's piece Bonds Jurors Face Ban on Texting, Tweeting About U.S. Trial Under Proposal:

In what jury consultant Chris St. Hilaire called an unusual addition to such questionnaires, prospective jurors would agree in writing to an order forbidding them from communicating via social media, the Internet, “or any other form of electronic communication for any purpose whatsoever,” according to a filing yesterday in federal court in San Francisco.

“I haven’t seen it used before and it’s a recognition of the new world we live in now,” St. Hilaire, president of Costa Mesa, California-based Jury Impact, said in a telephone interview. Lawyers in the case “are trying to be specific because they know how influential social media is now.”

Can You Argue Your Case in 15 Seconds?

2010-11-10T11:06:00.000-08:00

The advertising world has a lot in common with courtroom communication: Grab your audience’s attention early or you may lose that audience completely.

A recent Associated Press article reports that 15-second television commercials are replacing 30-second spots as the industry standard because of viewers’ shrinking attention spans. Advertisers are finding that if they can’t make the sale in 15 seconds, they probably can’t make it at all.

This dovetails with our own research showing that 85 percent of focus group jurors deliver the same verdict at the close of the session as at the beginning. This means that no matter what information they hear later in the case, that crucial first impression more often than not determines their final decision.

Although jurors can’t change the channel during trial, they can tune you out. That’s why we recommend making your best arguments and telling your strongest story right away. Once you’ve grabbed jurors’ attention with a succinct, clear storyline they’ll remember for the rest of the trial, you can fill in the details that fit in with that overall theme.

Give us a call if you’d like to discuss our findings further. We’d be happy to share some of our opening statement tips and strategies.

Simple Biases Affecting Verdicts

2010-10-15T09:04:00.000-07:00

A recent look into juror perceptions relating to lawsuits and insurance rates yielded some interesting trends. Nationwide data collected from our focus group exercises shows 40% of Americans believe lawsuits are “significantly” contributing to rising insurance costs, while 54% say “somewhat” contributing and 5.5% say “not at all.”

Examining how various demographics play into these perceptions also revealed a notable pattern when age was considered. The trend lines show jurors becoming increasingly aware of the impact of verdicts on insurance costs as they advance in years. This is likely because older jurors are far more likely to be sensitive to insurance costs than younger jurors.

From our perspective, the most remarkable trend is how these perceptions correlate with overall verdicts. Jurors who identified lawsuits as having a “significant” impact on rising insurance costs are 64% more likely to side with the defense, and jurors who choose “not at all” are 57% more likely to side with the plaintiff.

These figures illustrate just how strongly biases can impact and predict juror outcomes. Call us if we can help you uncover those critical biases that will shape strategy for your next trial.

The Power of Persuasion

2010-09-24T08:18:00.000-07:00

Getting What You Want—The Power of Persuasion
Posted By: Gloria McDonough-Taub CNBC, Senior Editor, Blogs

Guest Author Blog by: Chris St. Hilaire author of "27 POWERS OF PERSUASION: Simple Strategies To Seduce Audiences & Win Allies"

Persuasion for CEOs (And Those Who Want their Bosses Job)

One critical characteristic in any business leader’s success, especially a CEO's, is their ability to be persuasive. Among the best is their ability to persuade, to get thousands marching in the same direction, it all looks effortless. But we all know it’s not.

So how do they do it?

I’ve watched some of the best CEOs in America in action. I’ve sat with them, talked with them, picked their brains. I’ve watched them lead meetings and solicit opinions and each share common attributes. I’ve watched some lousy CEOs in action too. There tends to be similarities in their styles as well, but let’s focus on the positive.

Here’s five pieces of advice that good leaders follow – and are crucial for business leaders to keep in mind when seeking to persuade one person or an entire company:

1. Focus on the Goal

Whenever you're trying to persuade, your first mission is to define the goal. The most effective way to do this is not to announce the goal to the group, but to help everyone decide on it together. You want to have the largest possible buy-in from everyone involved, and you get it by having everyone contribute to the goal at the beginning.

A good way to get the ball rolling is to simply ask the room, "What's our goal? What are we trying to accomplish today?" Let people talk. Let them give you the answer. If no one speaks up, directly ask them for input. Boil it down to one or two simple sentences that everyone agrees on, even if it seems obvious.

There is great power in stating the obvious. No one wants to do it because it seems so rudimentary, but the minute you state the "obvious" goal of a meeting, you become the leader even if you're not officially in charge. This is because every group has an innate longing to be unified. Confusion and discord make people feel anxious and threatened, and unity makes them feel safe. People unify around a goal.

2. Get Others Invested

Want people to be more enthusiastic about your plan? Make it their idea. Create situations that will encourage the others to speak up, pro or con. Give people choices in which you’re comfortable with either choice. Use their points to support your goal and tie points together using other people’s suggestions. Making everyone in the room right, will unify them around your goal.

It’s a win/win for everyone.

3. Use a Couple of Numbers to Make Points Meaningful

People love to quantify things, even when what we’re stating is an opinion. For some reason it makes points more official. Using a statistic or two (don’t over stat them) creates some official barometer in which to measure success. It also creates the impression that there’s some official measurement involved. You used to see it a lot in commercials where 9 out of 10 dentists surveyed prefer one tooth-paste over another.

4. Learn to Use Silence

Silence and being comfortable with it allows you to take control of a room without seeming aggressive. Try it. Sit silently, comfortably – one of two things will happen. First, if your listener is nervous they’ll add on and you’ll get to what they really think. Second, some of the best solutions to problems come at the end of a statement, after they “seem” finished. Use silence to your advantage.

5. Own the Language

It’s a concept that has long been familiar to people in advertising. For them, the gold standard of owning the language has always been when the product name replaces the actual noun or verb. Classic examples are Kleenex for tissue, Chapstick for lip balm and Fedex for overnight delivery. Your ability to invent terms, to define the language, means that everyone will adopt your thinking.

Just about every aspect of our life involves persuasion. Those who master it are reaping the benefits. I hope you’re one of them.

To read an excerpt of "27 POWERS OF PERSUASION: Simple Strategies To Seduce Audiences & Win Allies" click here.

____________________________

Keep It Simple

2010-09-17T08:06:00.000-07:00

We once monitored a trial where the jurors returned a verdict in 32 minutes. They would have been faster, the foreman explained later, but they wanted to eat lunch before they started deliberating.

Jurors attributed the speedy defense verdict to attorneys who presented a simple, easily comprehensible story that was consistent from beginning to end of the 14-day trial.

Contrast that with the federal criminal trial of former Illinois Governor Rob Blagojevich, where deliberations alone took 14 days – and ended with a jury deadlocked on 23 of the 24 counts.

Jurors’ comments to the media reveal that the prosecutor’s case collapsed under the weight of its own complexity. “The majority of us felt it was confusing,” juror Eric Sarnello said. “It was all over the place.”

Consider what jurors were given to work with: more than a month’s worth of prosecution witnesses and 100 pages of jury instructions. Even more stunning is what they weren’t given, perhaps the most basic courtroom tool available: a timeline. This oversight forced jurors to spend hours of their deliberations doing what prosecutors should have done for them, piece together the dates and charges from 2001 to Blagojevich’s arrest in 2008.

Our case research has demonstrated that the side who presents the simpler story has the advantage. We suggest making sure before you go to trial that you can tell a compelling story in 30 seconds – basically, an “elevator pitch” for your case. If the other side can’t do this, so much the better.

While the Blagojevich jurors were 11-1 in favor of conviction on the other 23 counts – perhaps compelling evidence that the prosecution’s case was at least in some ways better than the defense’s – the fact is that when the standard is “beyond a reasonable doubt,” the need to streamline should be elevated as well. When this case is retried, prosecutors would be well-advised to remember that focus and restraint are paramount to helping jurors understand what a case is all about.

They would also be prudent to consider that the defense did exactly what it was supposed to do: create doubt through a straightfoward contention that the government had failed to prove its case, all without calling a single witness. “Zip,” is how Blagojevich’s lawyer described their defense.

It’s hard to make it much simpler than that.

Jurors Adding Lawyer Fees

2010-08-12T12:06:00.000-07:00

Jurors are typically instructed not to include attorney fees when considering damage awards. Think they’re listening?

Nationwide data collected this year from our jury focus groups is telling: A whopping 76 percent say they would take lawyers’ fees into account when determining damage awards.

That tendency isn’t attributable to Americans’ love of ignoring judges, but rather our implicit belief in “fairness.” During focus group discussions, jurors tell us again and again they “know the lawyers are going to take 30 to 40 percent,” meaning if they believe the injured party requires $1 million to be adequately taken care of, lawyers taking 30 to 40 percent in fees doesn’t sound “fair.”

As you can imagine, this “juror math” can cause large verdicts to quickly grow larger.

Give us a call if you would like to know more about our research in this area. And don’t forget to pre-order Chris St. Hilaire’s new book 27 Powers of Persuasion available online now at major book retailers.

To sign up to receive our Things That Make You Go Hmmm... to your inbox, please e-mail us at info@juryimpact.net

Investors Business Daily: 27 Powers of Persuasion

2010-06-11T13:43:00.000-07:00

Chris St. Hilaire's upcoming book 27 Powers of Persuasion was recently featured in Investors Business Daily:

Make A Powerful Case

By Cord Cooper

Getting ahead often means winning people to your point of view. It depends heavily on your approach — and the allies you tap to build your case.

• Bring 'em in. If the idea involves risk, some will be hesitant to show early support, says business coach Chris St. Hilaire, author of "27 Powers of Persuasion."

To win people over, use what he calls "third-party validation." Mention key people who support your idea — whether execs, co-workers or industry heavyweights.

If the idea's gaining traction, "nobody wants to be the last" to climb aboard, he noted.

• Defuse. "One of the easiest ways to soothe an ego is to use the phrase 'From my perspective,'" St. Hilaire said. "Perspective is an incredibly useful word that implies you're going to take the emotion out of the conversation."

• Play it up. When presenting viewpoints, look for strengths in each situation. If you're the only woman in a meeting, "own that perspective instead of ignoring it," St. Hilaire said.

He suggested trying something like this: "Can I tell you what I'm hearing from women? They account for 43% of this market."

If you're young or transitioning to a new career, you may be seen as lacking experience. How to fight it? Offer fresh insights convincingly. Back ideas up with facts.

• Show appreciation. If trying to persuade your boss in a one-on-one meeting, "use the first few minutes to make him feel valued," St. Hilaire said.

Thank him for taking the time to meet with you, then get to the point quickly.

• Phrase it positively. When presenting your case, use key words that gain support, such as choice, accountability and fairness. He gave this example: "I want to make sure you have choices, and that in the end someone is held accountable so we ensure the fairest result."

• Give 'em ammo. To bring people aboard, arm your allies with facts — talking points and statistics they can use to make your case, he says. Keep your points brief, so allies — and their audience — can remember them.

In presentations, simplify your story as much as possible. Show how the endgame can be reached. Stress the benefits.

• Size 'em up. Howard Gardner, author of "Changing Minds," suggests asking yourself:

Does the person you're trying to persuade respond well to an upfront approach, or should you open with questions and examples?

What are the person's hot-button issues?

Is the topic you're about to broach one of those issues?

• Compromise. When seeking support, don't respond to requests with a negative. Saying no has an air of finality. Look for common ground with a "let's-try-this" approach, St. Hilaire said.

• Keep cool. The more calmly you make your case, the more effective it'll be, notes communications coach Jack Griffin, author of "How to Say It at Work."

• Be prepared. List the negatives people could raise — then address them early in your presentation.

CLICK HERE TO PRE-ORDER THE BOOK!

Your Juror is on the Net, Or Will Be Soon

2010-05-24T15:15:00.000-07:00

Want to know more about the jurors hearing your case? Chances are, you can read about them online. National data from our focus groups show the number of jurors reporting they belong to some kind of social networking site has grown steadily since we began tracking in 2008.
In addition, the average age of those reporting an online social presence is increasing. In 2008, just 14% of jurors older than 40 years reported belonging to an online social site. So far, during just the first half of 2010, 40% of those older than 40 report having a Facebook or MySpace page, or similar online social network.

Further, the potential sources for jurors to “express” themselves or provide critical personal information continues to grow, as we have seen with sites like Twitter and LinkedIn.

Remember, researching jurors online is not just valuable for jury selection. Understanding a juror’s social priorities and language traits can help you better tailor themes, arguments, and words to fit your jury panel’s world views.

Call us if you’d like to know more.

The Right Words in the Right Venue

2010-04-28T13:47:00.000-07:00

True Story. We were listening to the radio the other day as a German bakery owner hoping to entice new customers explained in his thick accent that he was a “master-baker.” We laughed and then decided to remind everyone of the importance of choosing the right words in the right venue.

Words create emotions and build context for the audience. And as you probably know, choosing the right words and using them to develop a context that benefits your case is the difference between communicating your point persuasively and communicating something very, very different.

We recently fielded a survey in which jurors were asked what attributes make a good nurse. Respondents were offered a range of choices including “advanced specialty training,” “responds quickly,” and “at least five years experience.”

And what was the highest-scoring attribute by a 2:1 margin? “A kind, compassionate bedside manner.”

This response mirrors our national research findings, where jurors consistently cite “compassionate," “caring” and “spends more time with patients” as the qualities they most desire in a nurse. Using language that evokes positive perceptions of a nurse or a witness early in trial can have a tremendous effect on how jurors filter and envision the details of an event.

Next time you’re in trial, use the emotional words that will play to predispositions about what a juror wants in a caregiver or other witnesses. It’ll paint a positive picture in jurors’ minds. Call us if we can help you choose the right words for your next trial.

Things That Make You Go Hmmm…March 2010

2010-03-16T16:34:00.000-07:00

Unless you’re a superhero masquerading as an attorney, chances are telepathy isn’t among your abilities. Instead, you’re stuck divining jurors’ thoughts by monitoring body language or note-taking – and assuming feverish writing is related to your brilliant cross-examination, rather than a grocery list or screenplay pitch.

Fortunately, more and more courts are allowing jurors to submit written questions to witnesses following the attorneys’ examinations. These questions provide a much better gauge of juror leanings during trial by revealing what made sense to them, what did not, and what else they want to know.

Although some lawyers may prefer the “ignorance is bliss” approach to trial – learning what the jury was thinking only when the verdict is read and not before – we respectfully disagree.

As we have observed during our focus groups and mock trials, the ability to identify and answer questions from the outset prevents the dangerous juror tendency to make up their own answers based on potentially inaccurate, pre-existing knowledge. Pre-trial jury research can help to eliminate and address the majority of likely juror questions, and allowing jurors to submit questions during trial adds another layer of proactive protection from harmful juror assumptions.

During a recent trial, juror questions were eye-opening. After nearly four hours of expert testimony explaining the plaintiff’s causation theory, a high-priced, self-important expert witness received the following query: “So I don’t understand…what exactly is your theory on why the plaintiff was injured?”

With that one question, from arguably the most intelligent juror on the panel, the defense knew the plaintiff’s “star expert” explanation had failed to resonate, and, most importantly, that despite four days of testimony, jurors were still observing the plaintiff’s case with a highly critical eye.

So until your superpowers include mind-reading, encouraging the court to allow juror questions can be a great way to get into jurors’ heads and adjust your case accordingly – before they announce a verdict you don’t want to hear.

-Claire Luna

Jury Impact's 2009 Med-Mal Awards

2010-02-16T11:06:00.000-08:00

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

Toyota's Troubles

2010-02-11T08:30:00.000-08:00

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

Board Certification

2010-01-14T12:42:00.000-08:00

During a recent focus group involving hospital credentialing, 18 of 24 jurors said they believe doctors must be board certified to practice medicine.

Based on the frequency of similar responses, we began surveying on the issue last year during groups involving medical malpractice. So far we’ve asked 487 jurors: “Do you think your primary care doctor is board certified?”

Of those polled, 18.9% said “I don’t know” and an astounding 80.3% said “yes.” Perhaps most telling is that only four out of 487 said “no.”

This means that a vast majority of jurors from all regions, backgrounds, ethnicities, genders and incomes assume their doctor is board certified. Our experience tells us this confusion results from an assumption that board certification and medical licensing are one and the same.

Naturally, the question arises: if a doctor involved in a lawsuit is not board certified, how do you discuss the issue? Conversely, if a doctor is board certified, how do you use juror predispositions to your advantage?

Second question first – when doctors are board certified, you need to talk about it. Play to juror predispositions and highlight doctor education, training, experience, as well as the dedication it takes to pass board exams and establish oneself in a specialty. By playing to juror perceptions that doctors should be board certified (whether actually required or not), you establish and bolster their credibility.

Now to the tougher question where there’s no easy answer. When trying a case involving a doctor who is not board certified, you must recognize that jurors are going to perceive it as a net negative. We have tested many ways to address this issue during research, with limited success.

With that said, a lack of board certification makes contextualizing the rest of the doctor’s experience all the more important. We suggest spending considerable time talking about the education they do have, including the number of surgeries or other relevant procedures performed, specific qualifications, fellowships completed, and other credentials. Highlighting that experience can somewhat mitigate the negative biases seen in the above juror statistic.

During the coming year, we’re adding new questions to our Depth Charts to provide you with more quantitative data. If you have any suggestions for juror questions or things you’d like to know specifically, let us know. We’d love to hear them.

-Todd Fairbanks

Things That Make You Go Hmmm...

2009-12-04T12:23:00.000-08:00

Thinking about the 12 Days of Christmas reminds us of one of the most effective argument strategies we see: Use a couple of numbers.

Magazines are well aware of this approach. Just look at the monthly covers trumpeting lists such as “Top 100 colleges,” “400 richest Americans,” and the women’s magazine classic, “Seven Ways to Please Your Man!”

Recently we watched jurors deliberate a case in which a doctor failed to diagnose an extremely rare disease in an obese patient. The patient’s presenting symptoms: moderate muscle pain and high blood pressure. The doctor assumed a pulled muscle and too many Big Macs, and said to come back if the pain persisted. The true pain source turned out to be an extremely rare, deadly bacteria.

During discussions, plaintiff-leaning jurors zeroed in on the prevailing predisposition that “doctors are rushed and don’t spend enough time with patients.” Unfortunately, the initial pushback by defense-leaning jurors was weak: “Doctors can’t always diagnose these rare conditions right away.” The problem here was that plaintiff jurors simply could not understand just how little information the patient’s symptoms provided the doctor.

Adding a number helped change this. Jurors were introduced to some statistics: There are approximately 5,100 potential diagnoses for the combined symptoms of pain and high blood pressure. During deliberations, the defense-leaning jurors effectively adopted this number as their theme and supported it with another number: The disease occurs in no more than one in every 305,000 people.

Happy holidays and the very best wishes for the New Year.

Poll: Apparent Agency

2009-11-10T19:06:00.000-08:00

Agency claims are some of the most difficult to defend in medical malpractice work, due to jurors’ predisposition that if a medical mistake happens inside a hospital, then the hospital is ultimately responsible.

We tried to quantify this perception in a recent national poll, asking 1,001 Americans whether they agree or disagree with the following statement:

If a medical mistake occurs in a hospital, then the hospital is responsible for everything that happens under its roof. The results show that seven out of 10 jurors are likely to assume from the outset that a hospital is responsible for the actions of any and all doctors practicing within the hospital walls.

STRONGLY AGREE: 47.3%
SOMEWHAT AGREE: 28.1%
SOMEWHAT DISAGREE: 11.2%
STRONGLY DISAGREE: 9.2%
DON’T KNOW/REFUSE: 4.2%

In addition, these perceptions of blanket responsibility increase as jurors' education and household income levels decreased. In fact, 63% of jurors with less than a high school education and 57% of those with only a high school education strongly agreed, compared to 46% of college graduates and 40% of those with post-graduate study or degrees. Finally, 64%of those with household incomes of less than $30,000 strongly agreed, while just 36% of those with household incomes of more than $100,000 strongly agreed.

Overcoming the predisposition is possible, but as you can see , getting the right jurors--and the right message--is key.

*The poll, conducted from July 24-27, surveyed 1,001 U.S. residents older than 18 and has a 3.1% margin of error.

The Dials Don't Lie

2009-10-30T12:01:00.000-07:00

We always talk about the importance of third-party credibility in trial. Now watch us use it.

We recently conducted research for a bad faith case involving a significant jury award and an alleged failure to settle the claim beforehand. The plaintiff says the defendant insurer should have known a costly verdict was probable and ponied up more money to settle early. More specifically, the plaintiff says the defendant would have known about this risk if they had done a focus group or mock trial.

During our research, an argument testing the validity of focus groups as a method of assessing a case’s potential was the highest scoring among either plaintiff or defendant statements, with a score of 83.5. If you’ve seen our Instant Response dials in action, you know that's a "home run" score.

Knowing the potential for a multi-million-dollar verdict in this county, [the insurer] should have engaged in jury research through a focus group or mock trial to determine what the potential was for a large verdict. Instead, they went into the trial “blind” and unprepared – placing the [client’s] reputation and resources in an even more vulnerable position.

AVERAGE ARGUMENT SCORE: 83.5

Now you don't have to rely only on our (admittedly biased) opinion that focus groups are a good thing. Jurors think so, too.

ARTICLE: Jury seated for Marianna home-invasion, murder trial

2009-07-28T11:47:00.000-07:00

From David Angier at the Panama City News Herald, we learn of a juror dismissed because she might have, possibly, just maybe, had a wee bit of trouble remaining unbiased:

A prospective juror Monday in Howard Sullivan’s murder trial had a startling revelation about a potential witness in that case.

Prosecutor Greg Wilson was asking if anyone on the panel knew Lionel Crawford when a woman raised her hand. He’d gone through a list of potential witnesses and wanted to know if familiarity with a witness would bias a juror for or against their testimony.

"How do you know Mr. Crawford?" Wilson asked.

"He shot me in 2004," the woman replied.

"He shot you?" Wilson asked. After a long pause, he said, "Would it be safe to say you’d have a problem judging his credibility in this case?"

Congratulations, Mr. Wilson, you've just been nominated for Understatment of the Year!

CLICK HERE FOR THE ENTIRE ARTICLE...

Who Do You Trust?

2009-05-22T09:56:00.000-07:00

In our 2009 medical malpractice research, we’ve been asking jurors who they trust more, doctors or nurses. The results are eye-opening:

Of the hundreds of jurors we interviewed nationwide, 63% of those who trust nurses more supported the plaintiff.

On the other hand, only 43% of those who trust doctors more end up siding with the plaintiff.

Jurors who trust doctors and nurses “the same” backed the plaintiff even less frequently—40%.

Incorporating this question into voir dire efforts could “red flag” jurors naturally predisposed to support plaintiffs in medmal litigation.

Contact us if you are interested in hearing more about this or other findings from our juror database. Or, if you would like a full, in-person presentation of our findings, let us know.

'Extremely Bored' Runaway Juror Faces Jail Time

2009-05-20T11:47:00.000-07:00

According to the Denver Post, a juror came down with a case of "I'm boooooooooored-itis" and, well, just went home:

HILLSBORO, Ore.—A man who left jury duty after lunch because he was "extremely bored" will be back at the courthouse Tuesday to be arraigned on a charge of contempt of court. A police report said officers found the 25-year-old man near his home earlier this month and asked why he skipped out. He said he was bored, and "just couldn't take it" anymore.

Washington County Judge Gayle Nachtigal issued a warrant for his arrest.

Though she wouldn't discuss the specific case, the judge said the maximum penalty for missing jury duty is six months in jail. Penalties, however, are generally waived if the person agrees to perform their civic duty.

We've posted before about the tendency for younger (especially web-savvy) jurors lacking the attention span to make good jurors, but this kid is taking it to a new level.

Okay...

2009-05-01T09:30:00.000-07:00

From The Smoking Gun, we learn of one Montana resident's particular--and quite graphic--aversion to serving on a jury. This desire to avoid his civic duties prompted him to whip up a signed affidavit explaining to the court just exactly what he would rather do with his time than sit in a jury box.

Says TSG:

Slye's caustic affidavit, which he prepared with help from his wife Jennifer, can be found below. The document, of course, did not sit well with court officials and led a judge to threaten to jail Slye. But after being summoned to court, Slye apologized for the affidavit and avoided being cited on a criminal failure to appear rap. And he also was excused from serving on a jury.

Success!

CLICK HERE FOR THE ENTIRE ARTICLE (AND THE UNEDITED AFFIDAVIT)...

ARTICLE: 'I Pity the Fool': Mr. T on Jury Duty

2009-04-28T09:15:00.000-07:00

Makes me wish I lived in Chicago:

Called for jury duty at Cook County Criminal Court, Mr. T didn't disappoint Monday.

The "Rocky III" and "A-Team" star told stories during down time, autographed books and posed for pictures with other potential jurors, county employees -- and the family of the defendant in the case he could have ended up hearing.

"I enjoy doing my civic duty along with my friends I've met," said the Chicago-born actor, 56, motioning to the 20-plus potential jurors who'd been in the room with him for about five hours. "I enjoyed the people that were around me.

"It's not about 'The A-Team;' it's the J-Team -- the jury team."

Ultimately Judge Charles P. Burns dismissed Mr. T and others at 4:32 p.m. when a jury was seated in the drug case.

...

"You've got to testify! Tell somebody about it. God is good!" he told an admirer as he tried to leave the building. "I pity the fool that don't get it."

The first at the county building to recognize him as a celebrity was the daughter of the defendant in the case.

...

She said she didn't know why Mr.T didn't land on the jury.

"My mom would have picked him," she said.

...

There was no bad attitude on the part of the actor regarding jury duty.

"If you're innocent, I'm your best man," he said. "But if you're guilty, I pity that fool."

If the defendant’s family had not recognized Mr. T from the outset, we would have added the following section to our standard juror questionnaire to suss him out:

1. How do you feel about fools? (circle one)
a. I think they're great
b. I have no opinion either way
c. I pity them

2. What is the best way to enter a room? (circle one)
a. Through a door
b. Through a window
c. Through a concrete wall, in a van, covered in gold chains

3. If someone said, "You don't look so bad to me" what would you most likely say in return? (circle one)
a. "You are correct, sir."
b. "I assure you, I have the potential to be quite bad."
c. "What did you say to me paper champion?"

4. If Rocky Balboa was to fight Clubber Lang, what would be your prediction for the fight? (circle one)
a. Wait, who is fighting who?
b. A draw
c. PAAAAAAAIN

CLICK HERE FOR THE ENTIRE ARTICLE...

ARTICLE: Turbulence Blamed for Paralyzing Woman in Continental Flight

2009-04-22T16:58:00.000-07:00

In a frightening story from the Brownsville Monitor, a woman was paralyzed when her Houston-to-McAllen, TX plane encountered turbulence during the (very short) flight.

The woman, 47, was using the plane's bathroom when the aircraft encountered turbulence and descendent [sic] rapidly, throwing her against the ceiling, said Dr. Trey Fulp, an orthopedic spine surgeon treating her at McAllen Medical Center.

He said the woman suffered a fractured neck and was scheduled to undergo surgery on it Monday.

Doctors spent 6 hours operating on her back after the plane landed.

The back injury left her paralyzed from the chest down, Fulp said.

Although some patients recover from this sort of injury, it's unclear whether she will ever be able to walk again, Fulp said.

"Anytime you're dealing with a paraplegic, only time's going to tell," Fulp said.

He did not release the woman's name, citing privacy concerns, but he said she is a local resident.

As of Monday morning, the woman was on a ventilator. He said she is alert, talking and has been visited by family members, but she remains very scared.

...

The lawsuit is pretty much inevitable, but a personal-responsibility-oriented Texas jury would likely find this interesting:

Clark said the flight left Houston late at night after being delayed. The seatbelt signs were illuminated when the plane experienced "sudden turbulence," she said.

ARTICLE: More Workers File Lawsuits Over Popcorn Flavoring

2009-04-21T12:34:00.000-07:00

CINCINNATI (AP) -- Dozens of plant workers who claim their health was damaged by exposure to a chemical used to give a buttery flavor to microwave popcorn have filed lawsuits in Cincinnati against makers of the flavoring.

At least 43 workers have filed lawsuits that claim their lungs were damaged by inhaling fumes from the chemical. Some work at a local plant of Givaudan (ZHIV'-uh-dahn) Flavors Corp. of Cincinnati, which supplies the flavoring to food manufacturers. Many others are from a plant in Marion, Ohio, owned by ConAgra Foods, which is based in Omaha, Neb.

Last month, a jury awarded $7.5 million to Ronald Kuiper of Sioux City and against Givaudan. The verdict came a day after the man died.

Kuiper filed suit in 2006 against four companies that made popcorn flavoring used at the American Pop Corn Co., where he worked. The Sioux City company wasn't named in the lawsuit and the other cases were resolved earlier.

As if that wasn't scary enough, last year a man settled a lawsuit (favorably) against a popcorn maker after contracting "popcorn lung." But he wasn't a worker at a large popcorn factory--he was a consumer making microwave popcorn!

Yikes.

Exit Interview Tips

2009-04-17T15:01:00.000-07:00

About three days after we check out of our hotels, an e-mail containing a feedback survey pops up in our inboxes. Hotels use these questionnaires to learn what they did well and what could be done better. I guarantee that North Carolina hotel we stayed in a little while back will be much more vigilant about springing forward their clocks and stocking the bathroom with towels after the lambasting my co-workers and I provided in our responses.

Exit interviews with jurors can provide the same wealth of information, but oftentimes attorneys and their clients concentrate too much on the good or bad news of the verdict itself and not enough on the people who actually delivered it.

During the past three years, Jury Impact has refined its exit interview process to make it more consistent, comprehensive, and useful. As a former reporter for the Los Angeles Times, I was able to incorporate journalistic skills and techniques to make these interviews as powerful a learning tool as possible for our clients.

If lawyers decide to do the interviews themselves, the following tips can help:

A good first question asks jurors to describe what the case was about in one to two sentences, as if they’re describing the trial to their spouse or best friend. Not only will it make jurors comfortable because it’s an easy question, it will also provide you a great deal of insight into the direction of their answers to later questions.

Use the jurors’ answers to transition to other questions. This creates the perception the jurors are driving the interviews, not the other way around. For example, transition to another question by saying, “Going back to that point you made about the attorney being heavy-handed with that witness, tell me more about that…” This is key to making jurors feel like they are having a conversation with you, not like you’re peppering them with questions and not really listening to the answers.

Don’t be wedded to the list of questions. If a juror tells you, “The hospital killed that poor child and deserved to be punished,” don’t go straight to the next question. The follow-up question should be along the lines of, “What did the plaintiff say to make you think that?” or “At what point in the trial did you start to believe that?”

Know when to stop talking. Listen carefully and get into a conversational rhythm so that you know when jurors are pausing to collect their thoughts instead of simply not talking because they’ve finished answering the question. Don’t feel the need to fill every empty space with another question. Some of the best answers will come after you’ve paused enough to let the juror feel you want to hear more of what they have to say.

Oftentimes the best answers will come at the end of an interview, when a rapport has been established and the juror is relaxed. Save your most delicate questions for points, like, “Was there really anything the defense could have done to change your mind after you heard the plaintiff’s opening?” or “Do you think sympathy for the plaintiff affected your verdict?”

Avoid making statements during an interview that remind a juror which side you’re on. They are more likely to answer candidly if they’re not worried about offending you. At the same time, try not to get frustrated at a juror’s comments or take their words personally. Even if you can’t see the logic in a juror’s perspective, the fact remains that they feel this way and it is your job to find out why.

Take a few extra minutes during each interview to ask questions that aren’t on your survey sheet but show the juror you’re genuinely interested in their lives. If they tell you they wanted the trial to finish quickly because they had to get back to their job, ask what they do for a living, even if you already know. Sometimes this also provokes further insight into their thinking – “I’ve been fired myself so I knew what this guy was going through.”

-Claire Luna

Language Matters

2009-04-09T11:14:00.000-07:00

According to a recent Rasmussen Poll, 53% of Americans believe "capitalism" is better than "socialism."

The telephone survey also revealed that 20% disagree and say socialism is better. Twenty seven percent couldn't take a stand if they were buried ankle-deep in concre--ERRR...were not sure which is better.

Here are some demographic details:

Adults under 30 are essentially evenly divided: 37% prefer capitalism, 33% socialism, and 30% are undecided. Thirty-somethings are a bit more supportive of the free-enterprise approach with 49% for capitalism and 26% for socialism. Adults over 40 strongly favor capitalism, and just 13% of those older Americans believe socialism is better.

Investors by a 5-to-1 margin choose capitalism. As for those who do not invest, 40% say capitalism is better while 25% prefer socialism.

There is a partisan gap as well. Republicans - by an 11-to-1 margin - favor capitalism. Democrats are much more closely divided: Just 39% say capitalism is better while 30% prefer socialism. As for those not affiliated with either major political party, 48% say capitalism is best, and 21% opt for socialism.

The question posed by Rasmussen Reports did not define either capitalism or socialism.

But here's the most interesting part:

It is interesting to compare the new results to an earlier survey in which 70% of Americans prefer a free-market economy. The fact that a “free-market economy” attracts substantially more support than “capitalism” may suggest some skepticism about whether capitalism in the United States today relies on free markets. (emphasis added)

See how a slightly different language choice can have a significantly different result? Although I disagree with their conclusion ("free-market economy" just sounds better than "capitalism," which has had decades of negative connotations heaped upon it), this is a clear example of what we always preach to our clients:

Language matters.

Giving the Big Bad Wolf a Friendly Face

2009-04-06T16:05:00.000-07:00

This may come as a shock to you, but most of the companies that hire us aren’t typically viewed by jurors as the “warm and fuzzy” types. And you'd better believe the other side does everything they can to paint them as “greedy corporations,” "monstrous institutions," or the “big bad wolf” salivating as it prepares to devour yet another vulnerable plaintiff.

Most often, these descriptions of "profit-driven corporate behemoths" help to paint a David-and-Goliath struggle, pitting plaintiff vs. defendant in a battle with seemingly impossible odds.

What the other side tends to forget is that there are a lot of friendly faces behind that so-called behemoth. No matter how big the hospital or the company, the fact remains that the people who work there – especially in healthcare – chose their careers according to what they believed would help other people. Nurses, especially, certainly aren’t doing it for the money or the easy hours.

We encourage all of our clients to do everything possible to humanize the defendants, to show that they are just as vulnerable as the sympathetic family in the Day in the Life video. Pictures of smiling nurses in an opening statement PowerPoint and, even better, those same compassionate nurses sitting in the courtroom audience day after day help to make the adversarial plaintiff-defendant relationship about people vs. people rather than people vs. “The Man.”

Even more can be done when witnesses are on the stand. Asking why nurses love nursing, especially labor and delivery, has evoked some powerful responses: “I treat them all like my daughters.” The same goes for doctors, although it must be said that knowing these responses in advance is key. We still shudder a bit when we remember the ER doc who reported choosing medicine because “nothing else seemed that interesting.”

Jurors don’t want to hear about caregivers who went into medicine by default – they want to hear about a passion for patient care. Our experience has taught us that along with that enthusiasm for helping people, jurors also respond well to credentials, experience, and training.

During a trial we monitored last year, simply labeling the labor and delivery nurses as “Level III” instantly established a credibility the plaintiffs couldn’t tarnish – and believe me, they tried their hardest.

So we urge clients to make every effort to humanize your organization – no matter if it’s an insurance company, hospital, or even a major financial institution – and demonstrate that just like the plaintiffs are people with families and feelings and dreams, the people who work there - espeically those who provided care - are as well.

-Claire Luna

ARTICLE: Austin ERs got 2,678 Visits from 9 People Over 6 Years

2009-04-01T08:52:00.000-07:00

According to the Austin American Statesman, there appears to be a bit of ER abuse in its fair city. And by "a bit of ER abuse" I mean "rampant, out of control, why-has-taken-you-six-years-to-put-a-stop-to-this ER abuse."

In the past six years, eight people from Austin and one from Luling racked up 2,678 emergency room visits in Central Texas, costing hospitals, taxpayers and others $3 million, according to a report from a nonprofit made up of hospitals and other providers that care for the uninsured and low-income Central Texans.

One of the nine spent more than a third of last year in the ER: 145 days. That same patient totaled 554 ER visits from 2003 through 2008.

"We looked at frequent users of emergency departments ... and that's the extreme," said Ann Kitchen, executive director of the Integrated Care Collaboration, the group that presented the report last week to the Travis County Healthcare District board. "What we're really trying to do is find out who's using our emergency rooms ... and find solutions."

...

The ICC staff, meanwhile, has been gathering data so its members could learn more about the kinds of patients who use the ER.

The report that mentioned the nine high-frequency patients didn't include reasons for all of those ER visits and didn't identify the patients because of privacy laws. But Kitchen, a former state legislator from Austin, gave a sketch: All nine speak English; three are homeless; five are women whose average age is 40, and four are men whose average age is 50. Seven have a mental health diagnosis and eight have a drug abuse diagnosis. Kitchen said she did not know their citizenship status.

...

In a report last year, Austin-Travis County Emergency Medical Services said that 10 patients made up more than 1 percent of the system's 130,000 contacts with patients in two years. The patients' most common ailments were stomach or chest pains, injuries or respiratory problems.

In the comments section of this blog, a reader adds, "This means that, on average, each of the nine people visited the ER about once a week." Wow.

Ask any juror in any city what their number one complaint about emergency rooms is, and you'll hear "long waits." And it goes without saying that these negative experiences reinforce predispositions about the quality of health care in the local area.

CLICK HERE FOR THE ENTIRE ARTICLE...

Professional Often Trumps Bombastic

2009-03-27T16:16:00.000-07:00

Perhaps it’s too many episodes of Law and Order on their DVR, but it seems like some attorneys we’ve observed during the past few years of trial monitoring are taking their cues from the bellowing, bellicose trial lawyers from TV and film. But from what jurors have repeatedly told us, that style is oftentimes is a big turnoff.

Exit interviews we’ve conducted this year following trials in two very different jurisdictions –one of which was in a large, fast-paced jurisdiction, where one might assume jurors expect at least a little flash – revealed that not only do jurors notice screaming, excessive sarcasm, sotto voce asides, petty objections and witness badgering, most of the time they can’t stand it.

Consider the plaintiff’s attorney in one of the cases we monitored. We watched him badger nurse after nurse, prompting all five involved to cry on the stand. He thrived on disrespecting opposing counsel in front of the jury, at one point saying, after she objected to a leading question, “If you hate it so bad, how come you do it so much?”

While we developed an immediate aversion to him on the first day of trial, we’ll let the juror comments after the trial speak for themselves:

“Did you see me rolling my eyes at him? I tried to control myself, but he was just so horrible.”
“This is the epitome of a sleazy, weaselly lawyer.”
“That ‘why is everyone so stupid except for me’ mentality got really old. The little comments he made under his breath were really insulting to his professionalism.”

To a juror, no one could stand this guy.

We had the good fortune of working with lawyers who, in contrast, jurors described as “professional,” “efficient” and “courteous.” Don’t mistake these descriptors as synonyms for boring. On the contrary, jurors appreciate examinations that move along at a good clip, using well-chosen questions in conjunction with well-placed “a-ha” moments to establish or undermine credibility.

Not only is this approach consistently more appealing, jurors understand that bombastic lawyers consume a lot of courtroom time with irrelevant asides and argumentative, often repetitive lines of questioning. When jurors’ time is on the line, and they’re looking at the clock thinking about kids who need to be picked up or work that needs to be caught up on, they want every minute in that courtroom to be used effectively.

And as entertaining as the buildup to a “You can’t handle the truth” climax is in the movies, in real life, jurors are usually looking for something much more straightforward.

-Claire Luna

ARTICLE: As Jurors Turn to Web, Mistrials Are Popping Up

2009-03-18T02:47:00.000-07:00

Remember when we said technologically-proficient, web-savvy people tend to make worse jurors?

Well, by way of the New York Times, here's another example:

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment against it after a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded that the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a “big announcement” was coming Monday. But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based only on the facts that the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web, or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from point A to point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

“It’s really impossible to control it,” said Douglas L. Keene, president of the American Society of Trial Consultants.

...

The technological landscape has changed so much that today’s judge, Mr. Keene said, “has to explain why this is crucial, and not just go through boilerplate instructions.” And, he said, enforcement goes beyond what the judge can do, noting that “it’s up to juror 11 to make sure juror 12 stays in line.”

It does not always work out that way. Seth A. McDowell, a data support specialist who lives in Albuquerque and works for a financial advising firm, said he was serving on a jury last year when another juror admitted doing a Google search on the defendant, even though she acknowledged that she was not supposed to do so. She said she did not find anything, Mr. McDowell said.

Mr. McDowell, 35, said he thought about telling the judge, but decided against it. None of the other jurors did, either. Now, he said, after a bit of soul searching, he feels he might have made the wrong choice. But he remains somewhat torn.

Here is my favorite part:

“I don’t know,” he said. “If everybody did the right thing, the trial, which took two days, would have gone on for another bazillion years.”

Forget about the law, America's Next Top Model is on tonight! And we end on this gem:

Mr. McDowell said he planned to attend law school in the fall.

Off to a great start, pal!

CLICK HERE FOR THE FULL ARTICLE...

Trial Tip: The Details Matter

2009-02-27T08:43:00.000-08:00

An Eagle Scout pin on a lawyer’s lapel.

A Day in the Life video briefly showing a Mercedes SUV in the garage of a plaintiff’s family claiming financial hardship.

The attorney whose objections are only sustained one time out of a dozen.

Jurors notice all of these things, and more. To them, what they observe and analyze in a courtroom is so much more than what the witnesses are saying on the stand. As their attention and focus spread beyond testimony and case facts, jurors’ observations of seemingly inconsequential details can be a powerful tool in shaping their opinions of the lawyers, parties involved, and the merits of the case itself.

Consider a recent five-week medical malpractice trial we monitored. As much as we noted about courtroom events and the jurors’ reactions, it turns out the jurors were just as attentive to the most minute details, including those described above.

Although they were quick to say during exit interviews that they didn’t arrive at a verdict based on any of those observations, it was clear that the lawyer with the Eagle Scout pin quickly gained credibility among the panel – and that his slightly unkempt suits stood in sharp contrast to the other side’s bespoke ensembles.

Also evident to these jurors was the fact the plaintiffs involved "weren’t hurting for money." In addition to the pricey SUV, jurors also noted the large house (and were critical that the plaintiff's young son with cerebral palsy had a room "barely bigger than a walk-in closet") and the father’s tendency to wear designer Polo shirts in the courtroom. “I kept a tally, and I saw that little horse every day,” one juror told us. “Those shirts aren’t cheap, so I didn’t think they should be crying poverty.”

One thing our clients learned during this trial was the importance of paying as much attention to detail as the jurors. After one expert was finished testifying, a gleaming black town car was waiting outside the courthouse to take him to the airport. Not a good way to connect with the jurors--especially the farmer who gawked as he puttered by in his battered 1970s pick-up truck.

Because strong case facts and concise, effective themes are the cornerstone of any good trial presentation, it's sometimes easy to overlook details. But jurors are watching, and consciously or not, their observations of the little things are helping to shape their impressions of the big picture.

-Claire Luna

Trial Tip: Don’t Make Jurors Do the Math

2009-02-19T13:25:00.000-08:00

In our experience, simple numbers or statistics are some of the most effective ways for attorneys to make key points. But too often, lawyers use figures that force jurors to crunch the numbers and the point quickly loses impact.

For example, we work on a lot of medical malpractice cases involving premature babies. The way that doctors talk about gestation – 13 weeks, 25 weeks, 37 weeks – doesn’t make sense to the average juror unless they’re a recent parent. After conducting nationwide focus groups, we've learned that most jurors don’t even know that a full-term pregnancy is 37 weeks.

Therefore, we encourage attorneys to talk in terms in months. A baby born "three months early," as in a recent trial we monitored, paints a much clearer picture than one born at "28 weeks."

The same goes for a baby's weight. Premature babies are often categorized in grams, but most jurors hearing arguments on the fly don't have conversion calculators handy to decipher what "34 ounces" signifies. Don’t talk metrics – use the measurements people are most familiar with and describe a baby born at "two pounds, two ounces." The image is immediately clear: this is one tiny baby.

We recently monitored a trial about a baby exactly like this, born three months early and weighing two pounds, two ounces. When we interviewed jurors after the defense verdict was rendered, they said the main determinant in finding no causation (or negligence, for that matter) was that this baby was born so early, weighing so little, citing the "two pounds, two ounces" figure.

Our recommendation: Do the math for your jurors. A little conversion goes a long way when it comes to making a salient point.

-Claire Luna, Jury Impact Senior Analyst

ARTICLE: Confessions of a Hotel Housekeeper

2009-02-17T17:08:00.000-08:00

The title of this article alone gave me the heebie jeebies, so naturally I'm going to share it with the rest of you!

I cut corners everywhere I could. Instead of vacuuming, I found that just picking up the larger crumbs from the carpet would do. Rather than scrub the tub with hot water, sometimes it was just a spray-and-wipe kind of day. After several weeks on the job, I discovered that the staff leader who inspected the rooms couldn't tell the difference between a clean sink and one that was simply dry, so I would often just run a rag over the wet spots. But I never skipped changing the sheets. I wouldn't sink that low, no matter how lazy I was feeling.

...

I was disgusted by the many guests I came in contact with through the things they left behind: the hairs on the pillow, the urine on the toilet seat, the half-eaten cookie, the stained sheets. One woman had soiled her sheets so thoroughly that we had to toss them in a biohazard bag—they could never be used again. Rooms where young kids stayed were the worst, with food ground into the carpet and piles of used diapers in the trash. That kind of demoralizing mess could take 45 minutes to clean up. Most maids wore rubber gloves when they worked, but mine were too big, so I discarded them. Unsurprisingly, I got the flu twice.

When you travel as much as we do, a clean, decent hotel room is high on the priority list. I remember one particular trip to Baltimore there was a mix-up at the [REDACTED] hotel. Due to a Red Sox game (we love Baltimore, but there are few things more depressing than the meager turnouts for Orioles games. Only when a "good" team comes to town would there be anything approaching a half-full Camden Yards) all the rooms were booked.

And because we got in so late due to flight delays, the hotel had torn up our reservations in favor of early-bird New Englanders. Unfortunately for us, the entire city was booked solid--we couldn't rent a utility closet if we had $1,500 and an infectious smile. Anyhow, the only place the [REDACTED] hotel could put us up was across town in an incredibly shady area. Having no choice, we drove over and were faced with our worst nightmare.

We're talking long hairs on the shower walls, the stench of cigarettes complimenting (an impressive number of) cigarette burn holes in the comforter, a lumpy, saggy mattress, stained, damp carpet, running toilet, police sirens all night--take my word for it, all it was missing was a chalk outline next to the air conditioner. Needless to say, none of us slept well that night.

The [REDACTED] hotel did the right thing and gave each of the three of us a heaping of hotel points for our troubles, but I'll never forget that particular experience.

And just in case you weren't properly nauseated, I want you to think about the one thing in a hotel room that probably gets the most use: the TV remote control. Consider the sheer number of filthy mitts that have come into contact with that remote before your arrival, and the incredible amount of bacteria and who-knows-what-else clinging to that thing.

Now, within the context of the above article, think about how often the housekeepers hit that thing with a little Formula 409.

2008 Jury Research Findings: Tell the Right Story, Right Away

2009-02-17T11:15:00.000-08:00

If we’ve worked together you’ve heard us say: Jurors make up their minds quickly, and then spend the rest of the trial trying to prove that their initial decision was right. Now, we’ve got proof.

Our focus group methodology tracks three key votes – one after jurors have reviewed a basic fact pattern, another after they’ve heard the plaintiff’s arguments, and a third after hearing the defense.

At the end of 2008, we took a “30,000-foot” look at these votes by entering into our polling software the data from approximately 1,000 juror interviews. Here’s what the data revealed:

Eighty-five percent of jurors delivered the same verdict at the close of the focus group session as they did in their first vote. This meant that no matter what the expert testimony was and no matter what arguments they heard, 85 percent of respondents latched onto arguments and testimony that justified their initial biases about the case.

This doesn’t mean jurors can’t be persuaded from their initial impressions. They can. It also doesn’t mean that expert testimony isn’t important. It is.

What it does mean is that your opening is the most important part of your case…and you need to tell the right story, right away. Get your best, strongest arguments out there immediately…and don’t wait until your closing. By then, most jurors have made up their minds.

Give us a call if you’d like to discuss...we would be happy to share the additional findings from our 2008 data review. If you would like a full presentation of our analysis, let us know.

-Jeff Harrelson

Article: Jurors Kicked Off Case For Romance

2009-02-12T12:04:00.000-08:00

Just in time for Valentine's Day TheDenverChannel.com(via Fark.com) we are treated to a wonderful story of two jurors falling in love while serving on a jury...for a child-abuse trial.

According to the story, the man and woman were dismissed from the 16-member jury on Tuesday, after people reported seeing them walking arm-in-arm together and giggling with each other.

The former jury showed up Wednesday and sat in the spectator section of the courtroom but he refused to answer questions when approached in the hallway by a reporter.

Here are some details of the child-abuse trial that inspired such romance:

Twenty-nine-year-old Alex Midyette is accused in the 2006 death of 11-week-old Jason Midyette. Prosecutors say Jason had 37 broken bones.

Midyette's attorneys say Jason had a metabolic disease and wasn't abused. A doctor testified that Jason had bone abnormalities that were misidentified as fractures.

A doctor testifying for prosecutors said Jason's skull was fractured before he died.

Jason's mother, Molly Midyette, was convicted of child abuse for failing to get medical attention for her son. She is serving a 16-year sentence.

Yikes.

Article: Lawsuit Blames Injury On Lowe's Bathroom Door

2009-02-10T13:59:00.000-08:00

Oh, Florida.

According to Tampa Bay Online, a man has filed suit against Lowe's for an unfortunate injury sustained in the loo.

Tommy Rassier says he was using a toilet stall at a Lowe's Home center in Pinellas Park on Aug. 18th when something terrible happened.

According to a lawsuit filed in Pinellas Circuit Court, Rassier was about to sit down when a person unknown to him pushed open the stall door knocking Rassier "in the head and neck with the door," pushing him "back into and against the toilet."

Overall, I'd say this is a pretty crappy situation. RIM-SHOT!

Rassier thought the stall door was locked and faults Lowe's for failing to maintain the door's locking mechanism. The suit says Lowe's was negligent in permitting a dangerous condition.

His lawyer, Joshua Chilson, said it's an unusual case but a valid one. "Bizarre things do happen and that doesn't mean the case is without merit," Chilson said [sounding exactly like a man who believes this case is without merit].

Chilson said Rassier suffered dramatic neck pain when the bathroom stall door hit him and suffered "a herniated disc in his spine." No one called 911 to report the incident.

The person who knocked Rassier in the toilet didn't stick around to leave his name and there were no other witnesses to the mishap, Chilson said.

Chilson said he does have photographs of the broken lock that show several holes indicating the mechanism might have been moved around previously in a failed attempt to make it work properly.

Not for nothing, but you'd think a home-improvement store would have the wherewithal to install a functioning lock on a bathroom door. Just sayin'.

A few questions a jury might pose that could significantly impact the plaintiff's credibility:

-Why was no police report filed?
-There are no witnesses?
-Nobody can track down the most-forceful-bathroom-door-opener-in-the-world?
-A 3/4" door was enough to cause "dramatic neck pain" and a "herniatic disc in his spine"?

Something stinks here.

We are curious if any litigators out there have noticed an increase in frivolous civil suits as the economy worsens. Thus far it's probably anecdotal, but we would love to hear from you if you've noticed a pattern.

Personal Responsibility is Dead

2009-02-10T09:12:00.000-08:00

According to Naples Daily News out of Naples, Florida, a man is suing Marriott for injuries he sustained while drunk at their Marco Island hotel.

Michael Fenton admits he’s an alcoholic. He went on a two-day bender at the Marco Island Marriott Resort and Spa last January. In an inebriated state, he then plunged over a stairway some 100 feet. Now, he’s suing the hotel for serving an addict and causing his brain damage.

Fenton...is suing Marriott International Inc. and Marriott Hotel Services Inc., claiming that the bartender knowingly served a person who was addicted to alcohol, despite pleas by his family.

The lawsuit says Fenton got wasted in the hotel bar on January 17, 2008, and his family told the bartender to stop serving him. The bartender complied and Mr. Fenton went to his room to sleep it off.

But the next day, the lawsuit says, he went to the bar and was again served a substantial number of drinks and drank most of the day into the evening.

“The bartender continued serving him even though he was visibly intoxicated,” the lawsuit says. “Family members found Michael Fenton in the bar that evening and requested the bartender to stop serving him. The bartender ignored the request and continued serving him.”

Fenton then went to the “large, double-sided grand open stairwell” on the second floor to go to the bathroom on the first floor. As he tried to negotiate the first several steps, he fell over the handrail to the ground floor and suffered severe and permanent brain damage.

And just for good measure, the plaintiff is claiming the staircase "did not meet state and county building codes or industry standards."

Marco Island's chief code compliance officer, Eric Waddle, sums up my thoughts exactly:

“A building couldn’t have been approved if it didn’t meet code."

One of the accusations against the hotel is, I kid you not, "serving an alcoholic." If you could sue hotels in small towns every time they served an alcoholic in the bar, hotels would cease to exist. Alcoholics and hotel bars go together like Jack and Coke--ERRRRR, I mean, peanut butter and jelly.

Given the strong underlying theme of personal responsibility here, I have a feeling the first question jurors (especially Florida jurors) would ask is: If the family is so concerned about this severe alcoholic, why are they leaving him alone, unsupervised, in a hotel bar for "most of the day into the evening?"

That's like claiming you're terribly concerned about your suicidal teenager, but not bothering to clear the house of guns, knives and rope.

Study: 50 Percent of Smokers Keep Puffing After Cancer Diagnosis

2009-01-21T14:59:00.000-08:00

According to a Fox News article:

Even though smoking is a risk factor for multiple types of cancer, more than half of smokers diagnosed with the disease keep using tobacco, and doctors aren't doing enough to help them quit.

A West Virginia University survey published in the Journal of Oncology Practice found that 44 percent of smokers quit after being diagnosed with cancer.

Now, what was your first reaction upon reading that lede? I'm guessing something along the lines of, "What a bunch of bloody fools!"

And that is precisely the reaction we encounter from focus group jurors when discussing smoking habits. In medical malpractice cases, we've observed how a patient's decision to smoke typically illicit strong opinions about personal responsibility. However, it's nothing compared to the vitriol jurors unleash on patients who continue to smoke or resume poor health choices after a bad diagnosis.

Which brings us to the next finding of the study: "doctors aren't doing enough to help them quit."

Less than two thirds, 62 percent, say they received advice from doctors or nurses about quitting the habit.

Dr. Jame Abraham, the study's lead author, says the survey shows there's a need for intervention programs to help cancer patients quit tobacco.

Really? Being diagnosed with cancer isn't enough to make someone quit, but a nurse's stern words and a colorful pamphlet are? Talk about a personal responsibility deficit.

Especially in more conservative jurisdictions, a perceived lack of personal responsibility on the patient's part can heavily influence a jurors' desire to award money.

Med Mal Stat: Parents with Children Living at Home More Likely to Find for Plaintiff

2009-01-14T10:54:00.000-08:00

Every medical malpractice lawyer will tell you cases involving an injured or deceased infant can be extremely difficult to defend--even when the medicine is solid. Sympathy and the subsequent desire to award money--regardless of circumstance--can override many jurors' rational thought process.

We've seen jury instructions openly ignored (and jurors finding no evidence of negligence change to a plaintiff verdict) due to an intense desire to ensure the child is "taken care of."

This makes voir dire even more crucial. Because jury selection is really jury deselection, what types of jurors do defense attorneys most want to get rid of?

Parents. Especially parents with children at home.

In a recent analysis of 600 "bad baby" verdicts culled from our focus group database, we learned:

Parents were 53% more likely to find for the plaintiff than jurors who have no children.

For parents whose children live at home this figure jumps to 62%.

Obviously every juror is different (as are their tendencies to let emotions guide verdicts) but these statistics mirror a common finding we have observed in countless mock trials and focus groups across the country.

-Stephen Duffy

Meat + Booze + Cash = Marry a 14-Year-Old!

2009-01-14T09:48:00.000-08:00

Straight from the oh-man-why-did-it-have-to-be-in-California file, CNN treats us to a story of a father, Jesus Martinez, who sold his underaged daughter's hand in marriage to an 18-year-old boy in exchange for cash, tasty beverages and meat. (So that's what 14-year-olds are going for these days?)

That's not even the worst part. The worst part is the future son-in-law, who had already absconded with the minor Martinez, couldn't even come up with that pitiful dowry! An irate Mr. Martinez called the cops, and hilarity ensued.

Marcelino de Jesus Martinez, 36, of Greenfield, California, was arrested Monday and booked into the Monterey County Jail, Greenfield police said in a statement.

Martinez had arranged through a third party to have his daughter marry the older teenager, identified by authorities as Margarito de Jesus Galindo, of Gonzales, California. In exchange, Galindo was to pay Martinez $16,000 and provide him with 160 cases of beer, 100 cases of soda, 50 cases of Gatorade, two cases of wine, and six cases of meat, Greenfield Police Chief Joe Grebmeier told CNN.

The official felony charge is "receiving money for causing a person to cohabitate." I presume California law doesn't have a provision for receiving carne asada.

But before your fervent head-scratching breaks the skin, we're told this is TOTALLY, COMPLETELY, 100% NORMAL in Mr. Martinez' hometown of Oaxaca, Mexico.

In Oaxacan culture, the food and beverages are provided by a prospective bridegroom for the wedding...

Who am I to argue with culture? And then there's this little gem:

Authorities believe the young girl went with Galindo willingly, and no coercion was involved, he said. However, the girl is four years younger than California's age of consent, although the law does allow 16-year-olds to marry with parental consent.

Wait, what? Is it just me, or is California slowly starting to become Florida?

And just in case people weren't satisfactorily nauseated, the article slips in this little nugget:

He said his department has long heard rumors of children as young as 12 being sold or offered for sale. The Greenfield police statement said arranged marriages between young girls and older men "have become a local problem."

Yeah, I'd say when 12-year-olds are getting hitched to adult males, "local problem" is a fair assessment.

CLICK HERE FOR THE ENTIRE ARTICLE...

Article: Dennis Quaid and His Wife Settle with Hospital

2008-12-16T11:18:00.000-08:00

According to the Associated Press:

Documents show Dennis Quaid and his wife have agreed to a a $750,000 settlement with a hospital that gave his newborn twins an overdose of blood thinner. A petition filed in Los Angeles Superior Court on Monday shows the Quaids and Cedars-Sinai Medical Center have agreed on the parents' damages, but can still pursue claims for their children.

The documents state Cedars-Sinai is not admitting wrongdoing as part of the settlement.

Documents show the Quaids sued drug maker Baxter Healthcare Corp. in Illinois over the drug's packaging, but that case has been dismissed. The petition filed Monday indicates Baxter may also sue Cedars-Sinai, which administered too much Heparin to several patients in November 2007, including the Quaids' twins.

If you recall, the Quaids' twins, along with another newborn at Cedars-Sinai, were accidentally given 1,000 times the normal dosage of heparin. Instead of administering vials with a 10 unit per millileter concentration, the infants recieved 10,000 units per milliliter . According to the lawsuit against Cedar-Sinai, the adult and newborn medications were allegedly stored in the same place, providing opportunity for this very outcome.

The lawsuit against Baxter was a product liability case regarding the labeling and packaging of the vials, which it is alleged were strikingly similar for newborn and adult dosages. Baxter, which used a blue label for both the 10 and 1,000 unit vials, claimed Cedars-Sinai was responsible for improper use of their product.

When the suit was filed, Baxter spokeswoman said, "While we strive to clearly differentiate our products and dosages, no amount of differentiation will replace the value of clinicians carefully reviewing and reading a drug name and dose before dispensing and administering it."

Importantly, and thankfully, none of these infants suffered permanent damage. Sadly, three of six infants given the same 10,000 units in Indianapolis in 2006 were not as fortunate and passed away.

When They Make This Into a Movie, I REALLY Hope They Do a Better Casting Job

2008-12-05T09:40:00.000-08:00

According to the Associated Press, Doreen Giuliano, whose son was convicted of murder in 2003, decided to go undercover in search of information that could possibly result in a repeal of his conviction.

And by undercover, I mean:

...blonde dye job, fake tan, sexy wardrobe, phony name -- and began spying on jurors. She befriended one juror to root out any possible misdeeds at the trial, and for nearly eight months, they drank at bars, smoked marijuana and shared meals in her tiny Brooklyn hideaway.

Apparently it worked, because the juror she zeroed in on as a target, Jason Allo, started singing like a canary.

Among other things, the motion accuses the 33-year-old Allo of concealing that he had personal knowledge that Giuliano's son, John Giuca, ran with a rough crowd, and of defying orders to avoid news coverage once the highly publicized proceedings started. It argues that Allo "admitted the outside information he obtained about the case prejudiced him against Mr. Giuca."

In addition to mentioning the rarity of murder convictions being overturned, the article also provides some information about Mrs. Giuliano's son's conviction:

A jury deliberated only two hours before convicting Giuca of second-degree murder in 2005. He and the gunman were sentenced to 25 years to life in prison by a judge who told them that because the killing was callous, "my sentence will be callous."[emphasis added]

Yeah, I somehow don't think that one's going to be overturned, regardless of what Mr. Allo offered up.

The thing that bothers me about this story is the claim by both Mr. Allo and Mrs. Giuliano that there was no physical contact. I'm just wondering how someone can be "seductive" if they never actually seduce anyone. And, well, I submit a photo for further discussion:

You're telling me vegan Vin Diesel started yapping to this supposedly "seductive" older woman because they were BFF and nothing more? Just pals who share joints, tabs at bars, and the cozy confines of small Brooklyn apartments? Really?

Definitely a Thing That Makes You Go Hmmm...

CLICK HERE FOR THE ENTIRE ARTICLE...

Survey: Half of primary-care doctors would leave medicine

2008-11-21T09:41:00.000-08:00

According to CNN:

Nearly half the respondents in a survey of U.S. primary care physicians said that they would seriously consider getting out of the medical business within the next three years if they had an alternative.

The survey, released this week by the Physicians' Foundation, which promotes better doctor-patient relationships, sought to find the reasons for an identified exodus among family doctors and internists, widely known as the backbone of the health industry.

According to the survey, 49% said they would consider walking away from medicine because they are "overwhelmed" by the red tape created by insurance companies and government entities.

Also interesting to note was the effect this growing sentiment could have on the future of medicine.

A U.S. shortage of 35,000 to 40,000 primary care physicians by 2025 was predicted at last week's American Medical Association annual meeting.

...

And if that many physicians stopped practicing, that could be devastating to the health care industry.

"We couldn't survive that," says Dr. Walker Ray, vice president of the Physicians Foundation. "We are only producing in this country a thousand to two thousand primary doctors to replace them. Medical students are not choosing primary care."

And let's not forget one of the primary factors driving a distaste for a career in medicine: lawsuits and the effect they have on medical malpractice insurance rates.

To manage their daily work schedules, many survey respondents reported making changes. With lower reimbursement from insurance companies and the cost of malpractice insurance skyrocketing, these health professionals say it's not worth running a practice and are changing careers....

This is a sad state of affairs.

CLICK HERE FOR THE FULL ARTICLE...

Lord Justice: Web-savvy young make bad jurors

2008-11-12T18:10:00.000-08:00

This is an aspect of jury selection we frequently discuss with our clients: Younger, web-proficient jurors tend to make worse, less receptive jurors.

Young people brought up with the Internet are not used to listening for long periods and would not make good jurors, according to the most senior judge in England and Wales.

By Christopher Hope, Home Affairs Editor - Telegraph

In a speech, Lord Judge of Draycote, the Lord Chief Justice, said it might be better to present information for young jurors on screens because that is how they were used to digesting information.

He said: "Most are technologically proficient. Many get much information from the Internet. They consult and refer to it. They are not listening. They are reading. "One potential problem is whether, learning as they do in this way, they will be accustomed, as we were, to listening for prolonged periods.

"Even if they have the ability to endure hours and days of sitting listening, how long would it be before some ask for the information on which they have to make their decision to be provided in forms which adapt to modern technology?

He said: "Our system of jury trials depends on 12 good men and women and true coming to court and listening to the case. Orality is the crucial ingredient of the adversarial system.

"Witnesses speak and answer questions. Counsel speak and address the jury. Judges speak and give directions."

Currently information is provided on screens to jurors, such as in complex fraud trials, but "not without difficulty and with great expense", he said.

Younger jurors, sometimes called the MTV Generation, have been brought up on 24-hour news, frenetic action movies, incessant advertising, feverish competition for their attention and disposable income, and more consumer choices than ever imagined. Call them the IGIG, or Instant Gratification Internet Generation.

These jurors, when they need an answer to a question, acquire the information as quickly as they can type into Google or Wikipedia. When I was growing up and needed the answer to who the 23rd Vice President was (Adlai Stevenson--I just Googled it), it was essentially the Dewey Decimal System or nothing.

Anyhow, it's not surprising that jurors accustomed to obtaining information and consumer goods in mere seconds, could become impatient with a judicial system set up to slowly introduce information from both sides over the course of weeks.

Although the article does not explore this, shorter attention spans can also be dangerous because these jurors--accustomed to quickly forming opinions about complex issues based on soundbites and 3-minute news pieces--also tend to quickly take a stand on their trial verdict, before opening arguments conclude. This is a concern with jurors of all ages, genders and races, but in our experience is more prevalent among young, attention span-challenged jurors.

So how do you find out if a juror is web-savvy? In our experience, the simplest is asking whether they belong to social-networking sites, such as Facebook or MySpace, or if they Twitter or maintain a personal blog. In addition to being an indication of web-sophistication, obtaining this information can also provide insight into how beneficial or unfavorable that juror could be.

If a juror has a web page on a social networking site, it allows our jury selection team to look them up and glean basic information not included in (or removed by opposing counsel) the juror questionnaire. Jurors may have revealed certain information about themselves on their web pages related to lifestyle, personal outlook, or political views. Even if the page is set to "Private," at the very least confirming a juror has a page can be an indication they are more web-savvy than those without.

Lastly, this topic highlights the importance of presenting all jurors with simple, effective visual presentations in addition to simple, effective themes that play to their predispositions and IGIG tendencies.

CLICK HERE FOR THE ENTIRE ARTICLE, YOU WEB-SAVVY YOUNGSTER

CNN: Juror who vanished from Stevens trial went to California horse race

2008-11-03T15:41:00.000-08:00

Your jury system at work, everyone:

WASHINGTON (CNN) – A woman who had been a juror in the criminal trial of Alaska Sen. Ted Stevens told a judge Monday she made up a story about her father dying, so she could go to California for a horse race.

The judge last week initially accepted her story about a family emergency, but was later unable to reach her to learn when she would return.

Here's where it gets good:

"I feel bad about missing the last day or two of the trial," [Marian] Hinnant said following Monday's hearing. "I do not feel bad about going to California."

...

"I couldn't think of a, well, on Thursday afternoon, they'd not finished deliberating, so I thought by then we would be through, and I came home and I thought, 'Well, I'm going,'" she said. "My plane leaves at 6 o'clock in the morning, so I called him (the judge) up and told him my father died, in
California."

Sullivan closed the matter without any punishment against the woman for her absence.

It's not as if this is a trial centered on someone being slandered on the internet--this is a political corruption trial of a major, extremely powerful U.S. Senator.

Look, I understand jury duty is the butt of a lot of jokes and very few people are genuinely excited about getting $5 a day and a brown bag lunch, but it is a civic duty. And just because it isn't Disneyland, it doesn't give people--especially those who have already committed to serve--the right to play hooky with no consequences.

By the way, check out the Comments section of the article to gauge America's reaction. CLICK HERE FOR THE ENTIRE ARTICLE...

Cut it Out

2008-09-26T11:08:00.000-07:00

Straight from the Waking Nightmares file comes the story of a 61-year-old man who went in for a circumcision and came out with an amputated penis (for those of you wondering what would make a man suddenly decide to have a circumcision after 61 years, according to MSNBC the circumcision was intended to treat inflammation).

Phillip Seaton, 61, and his wife are seeking unspecified compensation from Dr. John M. Patterson and the medical practice that performed the circumcision for “loss of service, love and affection.” The Seatons also are seeking unspecified punitive damages from Patterson and the medical practice, Commonwealth Urology.

A woman who answered the phone at Commonwealth Urology would not take a message for the doctor Thursday. But the Seaton’s attorney said the doctor’s post-surgical notes show the doctor thought he detected cancer and removed the penis. Attorney Kevin George said a later test did detect cancer.

The lawsuit filed earlier this month in state court claims Patterson removed Seaton’s penis without consulting either Phillip or Deborah Seaton, or giving them an opportunity to seek a second opinion.

The couple also sued the anesthesiologist, Dr. Oliver James of Shelbyville, claiming he used a general anesthesia even though Seaton asked that it not be administered.

There are certain cases in which no matter how good the medicine or the expert testimony, the odds of a positive defense outcome are slim. Focus group participants have consistently demonstrated that any case involving the loss of private part use--or especially the loss of private parts--results in a near-automatic desire to award money.

To that point, the article casually mentions:

The Seatons’ suit is similar to one in which an Indianapolis man was awarded more than $2.3 million in damages after he claimed his penis and left testicle were removed without his consent during surgery for an infection in 1997.

However, in this case cancer was confirmed in the penis, making the "medical emergency" argument at least plausible. However, the consent issue will likely be a significant obstacle in making arguments about medical necessity. Brutal.

CLICK HERE FOR THE FULL ARTICLE...

Freakonomics Blog: Juror Unanimity Isn't Necessarily a Great Thing

2008-09-22T15:53:00.000-07:00

Here is a compelling take on the unanimity requirement of our legal system:

Juror Unanimity Isn’t Necessarily a Great Thing: A Guest Post
By Ethan Leib

Thanks for putting up with my quirky intellectual agenda of friendship and the law in the last two posts. For my final post, I thought I would highlight a more traditional area of my legal research: the jury.

There is something quirky at play here too: the U.S. is one of the few democracies around the world to have a unanimity rule for juror decision-making. The Times’s Adam Liptak has been doing a series on American Exceptionalism — “commonplace aspects of the American justice system that are virtually unique in the world” — but he has yet to focus on the puzzling persistence of unanimity as our jury decision rule.

Here are a few facts that make unanimity a non-obvious choice for juror decision-making.

1) We don’t require unanimity for any other important decision in our pluralistic polity. Our Supreme Court doesn’t decide by unanimity and neither do our legislators.

2) No other modern country (save Canada and a few jurisdictions in Australia) requires it.

3) We require unanimity to acquit as well as convict, so the idea that it contributes to protecting defendants is not fully accurate.
4) The symmetrical unanimity requirement contributes to inefficiency by giving us hung verdicts more than necessary.

5) Our juries have gotten more diverse as we’ve made it harder to get out of service and as we’ve grown more inclusive in our political system. With that diversity, majoritarianism seems more appropriate.

6) Empirical evidence tends to support the view that verdicts don’t change all that much when you change the decision rule. So the idea that unanimity contributes to certainty is probably overblown.

7) There is also empirical evidence suggesting that people assigned a unanimous decision rule will often agree to decide by supermajority (albeit unanimously) — meaning that in such cases, there is no difference between the two rules, except that some jurors agree to pretend that they agree with a verdict from which, in fact, they may strongly dissent.

8) We all know that many people are willing to falsify their preferences by changing their votes to agree with the majority; the incentives for doing so are especially high when one is a holdout juror being berated by other jurors because everyone wants to get home faster.

9) We don’t have such stringent unanimity rules in the context of the civil jury or courts martial, yet both those systems are respected and deemed legitimate by the public. Moreover, the few states that have experimented with relaxed jury-decision rules for the criminal jury — Oregon and Louisiana — do not suffer especial deficits in legitimacy.

10) Unanimity is often an illusion. Suppose a jury hangs, leading to a retrial. The second jury empanelled to try the defendant then convicts unanimously. Despite this second “unanimous” verdict, the truth is that, of a total of 24 jurors who heard the evidence, fewer than 24 were persuaded to convict. Indeed, it’s possible in theory that only thirteen — a bare majority — were persuaded, if in the first trial the holdout favored conviction, not acquittal.

These facts should be enough to get us to question our fealty to unanimity. At the very least, I think it is high time we stopped requiring unanimity for acquittals.

Article: Airline Passenger Strikes Back and Wins Money from the Airlines

2008-09-22T13:09:00.000-07:00

From CNN Money, we read about a victim of the infamous "weather-related" flight cancellation. As many of you know, if an airline cancels a flight they are often times obligated to refund your fare. However, if the cancellation is due to weather conditions, they don't owe you a dime (what, you didn't read the fine print?).

It seems to me this system provides financial incentive for airlines to more readily blame cancellations on weather, even when those claims of "no-fly" conditions are stretching credibility. And this man took them to task for it:

On Feb. 21, 2008, Mitchell Berns heard every flier's two least favorite words: weather related.

Citing snow, Delta Airlines was canceling his flight from Las Vegas to New York City and rescheduling him for a redeye connecting in Boston. With 47% of all delays so far in 2008 caused by weather (up 5% from last year), most fliers can relate. And they know that normally this story ends with a bleary-eyed tale recounted the next day at the water cooler. Not this time. It ends in court, with our traveler $838 richer.

Berns, 55, is a securities litigator with Lane Sash & Larrabee in White Plains, N.Y. On that night he was flying home from a romantic getaway with his wife, who was pregnant with twins. Seeing that other airlines' planes were still departing as scheduled, Berns asked Delta to refund his ticket so that he could book one of those flights. They told him (politely, as he recalls) that weather-related cancellations or delays are not the airline's fault and do not come with a refund.

Berns checked the National Weather Service report. It said snow that day was expected at five the next morning -- hours after his flight was scheduled to land. He and several other passengers from his Delta flight easily booked a JetBlue flight departing at the same time. His tab: $938. He landed at J.F.K. on schedule.

Back at home, Berns did what any consumer with $15 (in New York City) and a working knowledge of English (or Spanish, in most states) can do: He filed a small-claims suit against Delta for $938. Delta did not show up to defend itself, so on June 12 he won a default judgment.

When a legal analyst from the airline called him two weeks later to negotiate a payment, he declined an offer of frequent-flier miles ("Confederate currency," in his words) and made a counteroffer: If you pay me within two weeks, I'll knock $100 off. Delta agreed but asked for a confidentiality agreement. Berns said they couldn't have both, and Delta took the discount. (A Delta spokesperson did not respond to repeated requests for comment.)

The real kicker of this article is the fact that flights from other airlines had flights departing at the same time. Obviously airlines have differing weather policies, but booking a JetBlue flight while being told Delta's planes couldn't fly mitigates any claims of severe weather.

Again, with this system in place, it's no surprise supposedly weather-related cancellations have increased 5% since 2007.

Click here for the full article...

Judge Swears In All-White Jury

2008-09-12T07:35:00.000-07:00

An all-white jury will judge O.J. Simpson and a co-defendant on kidnapping and robbery charges after defense lawyers lost a contentious courtroom battle to include two African-American women on the panel.

District Attorney David Roger gave the judge what he called "race neutral" reasons for removing the two with his peremptory challenges, and defended the final makeup of the jury chosen late Thursday night, saying that two of six alternate jurors are black.

Both of the women who were removed had strong religious views, and the prosecutor said he thought one of them would be inclined to "forgive" Simpson while the other said she was hesitant to send anyone to prison.

Simpson's 1995 acquittal on murder charges came from a predominantly black jury.
Clark County District Judge Jackie Glass said she saw no evidence of a systematic exclusion of African-Americans. The current panel also is made up of nine women and three men.
Defense attorneys for Simpson and co-defendant Clarence "C.J." Stewart, who are both black, moved to dismiss the entire jury panel and start again but the judge rejected the motion.

Lawyers and the judge worked into the night to select the final group, using peremptory challenges, which are reserved for removing prospective jurors without stating a cause.

The final pool of prospects included a number of people who disagreed with Simpson's acquittal in the murders of his ex-wife, Nicole Brown Simpson and her friend Ronald Goldman. But they said they could put that aside and weigh the Las Vegas case on its own merits.

Simpson, 61, is accused with Stewart, 54, of kidnapping, armed robbery and other crimes for allegedly stealing items from two sports memorabilia dealers in a hotel room confrontation last year. They have pleaded not guilty. Each could face life in prison with the possibility of parole if convicted of kidnapping, and mandatory prison time if convicted of armed robbery.

Opening statements were scheduled for Monday, and the trial is expected to last five weeks.
As they left the courthouse in darkness, Simpson attorney Yale Galanter said he was confident of his case.

"I don't think my client did anything wrong, I don't think he broke any laws. I'm glad that we're finally at the point where we can get these issues resolved," he said.

As Simpson drove away, he paused to sign a T-shirt for some fans. It was emblazoned with the words, "Pray for O.J."

Earlier, the judge issued an order refusing to release questionnaires filled out by the jurors who make up the panel. She said she had promised the panel she would keep their answers secret.

Colby Williams, a lawyer representing The Associated Press and Las Vegas Review-Journal who sought disclosure of the questionnaires, said he has filed an appeal with the Nevada Supreme Court on grounds that the public and the media have a First Amendment right of access to information about jurors in a criminal case.

Associated Press

Chris St. Hilaire on KNX 1070

2008-09-08T15:21:00.000-07:00

Chris St. Hilaire, President and CEO of Jury Impact, was interviewed today on KNX 1070 AM regarding the OJ Simpson trial. Be sure to tune in!

If you're not in Southern California, you can listen online at http://www.blogger.com/www.knx1070.com/

Airline Extras

2008-09-08T14:58:00.000-07:00

Travel in the near future:

OJ Part Deux

2008-09-08T10:47:00.000-07:00

Oh boy. Here we go again.

According to CNN, OJ Simpson arrived in a Las Vegas courtroom today for the start of his robbery and kidnapping trial.

Ugh, I'm not sure if I can handle another OJ trial. The article states:

The court has eliminated 252 of 500 potential jurors based on their answers to a questionnaire. Attorneys for the prosecution and defense will start selecting a jury Monday, trying to find 12 jurors and four alternates from the remaining pool of potential jurors.

They eliminated half the jury pool right off the bat? Man, I'm dying to get my hands on that questionaire.

On the radio I heard the defense attorneys confidently proclaim that OJ could get a fair trial. That seems rather optimistic, but nothing compared to this gem from a "legal analyst":

Attorneys expect many jurors to have heard about the case but are looking for people who will make decisions based on the evidence presented at trial, said legal analyst Jim Moret.

"It's not whether or not you've heard a lot about the case," he said. "It's whether you can set that aside and listen to the evidence that's presented in court and determine the case based solely on that."

Right. Because jurors commonly disregard preconcieved notions and biases and make decisions strictly according to the facts. Good luck with that.

Click here to read the entire story...

Good Riddance to Bad Trash

2008-09-05T10:32:00.000-07:00

According to the AP, mega-lobbyist and corruption sinkhole Jack Abramoff is getting four years in the hoosegow.

Ah, the end of an era.

He claims he is "broken" and is, ''not the same man who happily and arrogantly engaged in a lifestyle of political and business corruption.''

But the one aspect of this story I'm most interested in--more than the golf trips, sporting events in luxury boxes, hoity toity meals, bribes and assorted palm-greasing of high-profile politicians--is WHOSE BRIGHT IDEA WAS IT TO DRESS HIM UP AS A 20S GANGSTER DURING HIS TRIAL?

"Myeah, see. We're above the law, see. That prosecuter is all wet. Myeah, just beating his gums."

Mattel Snags $100 Million in Bratz Lawsuit

2008-08-27T11:20:00.000-07:00

Toymaker Mattel, probably best known as the maker of Barbie, has been embroiled in a copyright infringement lawsuit related to the popular Bratz dolls, manufactured by MGA Entertainment.

Mattel, headquartered out here in Southern California, sued MGA originally for $1.8 billion (you read that correctly--billion), claiming current MGA employee Carter Bryant (Mattel's former employee) came up with the idea for Bratz on Mattel's time. Specifically, Mattel accused Mr. Bryant of sneaking around behind Mattel's back and working as a consultant for MGA.

The Bratz dolls, which are geared more to today's *ahem* modern values, successfully carved a nice chunk out of Barbie's marketshare.

Plenty of ugliness and accusations ensued, and ultimately a jury awarded Mattel $100 million--a fraction of the original damages sought.

Worse for Mattel, their share price took a sizeable hit this morning. To make matters even worse, some reports estimate Mattel's legal costs in the first half of this year at $44 million--mostly stemming from the Bratz suit.

Ouch.

But hey, a win's a win. And Mattel, known for aggressive litigation to protect their Barbie brand, probably just considers it a cost of doing business.

Lawsuits R Us

2008-08-27T09:53:00.000-07:00

TIME magazine informs us that a lawyer has come up with a, um, creative way to tap into Americans' voracious appetite for litigation.

As if there weren't enough people out there suing each other, now a Florida attorney has come up with a way to make the process even easier.

Beginning next month, anyone with access to the Internet should be able to log onto WhoCanISue.com. The new website plans to help consumers determine whether they actually have a case and help them find an attorney from a list of lawyers who advertise their expertise on the website. The attorneys will pay an annual fee of $1,000 to appear on the site, plus an additional amount of their own choosing that will determine how prominently they appear in the listings on the site. The website will vet the attorneys to make sure they are in good standing with their state bar associations.

For those of you concerned about this type of service encouraging frivolous lawsuits, don't worry. We get calming reassurance from the company's founder:

But Wolfe maintains his service could just as easily help someone realize he doesn't have a case — or that, while they may have a legal claim, it won't generate enough money to interest an attorney to take it on.

Phew! I feel better.

Click here for the full article...

You Don't Say...

2008-08-11T16:55:00.000-07:00

In a recent article, In U.S., Partisan Expert Witnesses Frustrate Many, The New York Times explores a subject that we frequently discuss with our clients: The tendency for plaintiff and defense expert witnesses to "cancel each other out."

Judge Denver D. Dillard was trying to decide whether a slow-witted Iowa man accused of acting as a drug mule was competent to stand trial. But the conclusions of the two psychologists who gave expert testimony in the case, Judge Dillard said, were “polar opposites.”

One expert, who had been testifying for defendants for 20 years, said the accused, Timothy M. Wilkins, was mentally retarded and did not understand what was happening to him. Mr. Wilkins’s verbal I.Q. was 58, the defense expert said.

The prosecution expert, who had testified for the state more than 200 times, said that Mr. Wilkins’s verbal I.Q. was 88, far above the usual cutoffs for mental retardation, and that he was perfectly competent to stand trial.

Judge Dillard, of the Johnson County District Court in Iowa City, did what American
judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, the judge said, and they had given predictable testimony. “The two sides have canceled each other out,” Judge Dillard wrote in 2005, refusing to accept either expert’s conclusion and complaining that “no funding mechanism exists for the court to appoint an expert.”

This really shouldn't come as much of a surprise. Most jurors are fairly adept at following the money and forming common sense conclusions about bias.

In most instances, expert witnesses for both sides boast credentials in education, training, and relevant experience--with neither being more credible than the other (on paper at least). We find that jurors, driven by the common sense perception experts will cater testimony to support the side signing their check, often find that paid experts don't carry much sway. Jurors instead tend to focus on personality traits, whether the witness educates jurors in "plain english," and even tie colors and mannerisms when assigning credibility.

I found this amusing. The expert witness for the state provided a telling quote describing the experience:

“After you come out of court,” Dr. Welsh said, “you feel like you need a shower. They’re asking you to be certain of things you can’t be certain of.”

Another colorful quote:

“To put it bluntly, in many professions, service as an expert witness is not considered honest work,” Samuel R. Gross, a law professor at the University of Michigan, wrote in the Wisconsin Law Review. “The contempt of lawyers and judges for experts is famous. They regularly describe expert witnesses as prostitutes.”

And another zinger:

Martin Belli, the famed trial lawyer, endorsed this view. “If I got myself an impartial witness,” he once said, “I’d think I was wasting my money.”

This article strongly supports a sentiment we often share with clients, especially in medical malpractice cases: Expert witnesses mainly serve to support a jurors' initial perception of the case facts--and rarely influence jurors to switch to the other side.

Therefore, tapping into juror predispositions--the biases they are likely to walk into the courtroom with--and shaping expert testimony to conform to those preloads, is where legal teams should focus most of their energy. Relying on an expert witness, regardless of their impressive credentials or background, to turn the tides of juror sentiment, is fraught with risks given the likelihood for opposing witnesses to "cancel each other out."

Read the entire article...

Jury seated in lawsuit against Osteen's wife

2008-08-07T09:38:00.000-07:00

From the Associated Press:

A jury was seated Wednesday in a lawsuit alleging the wife of nationally known pastor Joel Osteen assaulted a flight attendant.

Opening arguments were set for Thursday in a case Victoria Osteen's lawyer called "silly." But Reginald McKamie, attorney for Continental Airlines flight attendant Sharon Brown, said he hopes the trial will show "that celebrity status doesn't take precedence."

Brown accuses Victoria Osteen of assaulting her before the start of a 2005 flight from Houston to Vail, Colo. Brown alleges Victoria Osteen threw her against a bathroom door and elbowed her in the left breast during an angry outburst over a stain on her first-class seat. The Federal Aviation Administration fined Victoria Osteen $3,000 for interfering with a crew member.

Joel Osteen was at his wife's side Wednesday in court. McKamie said he expected to call the couple as witnesses.

Joel Osteen preaches at Lakewood Church, a Houston megachurch where about 42,000 people flock each week and where Victoria Osteen is co-pastor. His weekly television address is broadcast nationally and internationally.

Some potential jurors during questioning admitted to being star-struck by the Osteens and that their respect for them might affect their judgment.

"He has gotten me through a lot of tough times. I would believe what he has to say. I have a lot of respect for him," one female in the jury pool said.

Other potential jurors said they didn't like preachers or televangelists and that ministers can lie. Brown wants an apology and punitive damages amounting to 10 percent of Victoria Osteen's net worth as part of her suit.

Victoria Osteen's lawyer, Rusty Hardin, said before jury selection began Wednesday that Brown's claims are false and that what happened was a "minor incident." Hardin also asked a judge to throw out an FAA report detailing the alleged incident, saying the agency's investigation was "incredibly incomplete."
...

According to court documents, Brown claims that she suffers from anxiety and hemorrhoids because of the incident and said her faith was affected. She is also suing Osteen for medical expenses for counseling.

Brown had previously claimed she was attacked in another incident by an airport employee, according to a deposition she gave in the case.

So, to recap, suffering from hemorrhoids are worth 10% of another individual's net worth.

Read the entire article...

Juror: Judge and jury pressured me to convict man

2008-08-06T10:21:00.000-07:00

Regardless of what the forewoman says, sometimes, despite the best jury instructions and intentions, jurors just want to go home.

RIVERHEAD, New York (AP) -- A juror who helped convict a black man of fatally shooting a white teenager said he felt pressured by other jurors and the judge to change his vote to guilty during a marathon deliberating session.

The jury convicted John White of second-degree manslaughter Saturday in the August 2006 shooting of 17-year-old Daniel Cicciaro Jr.

White, 54, remains free on bail and plans to appeal. He faces a prison term of five to 15 years.
The case drew national attention after defense attorneys argued that he feared a "lynch mob" had come to attack his family when a group of angry white teenagers gathered outside his home. The teens wanted to confront White's son.

Juror Francois Larche, who is white, said he and another juror changed their votes after enduring "a lot of psychological tactics" from fellow jurors during an unusual weekend session ordered by the judge over jurors' protests.

"It was a huge burden to bear," Larche, 46, told the New York Post in Monday's editions. He added, "I took a lot of heat."

Jury forewoman Maureen Steigerwald denied that the judge, a 12-hour deliberating session on Saturday -- the fourth day of deliberations -- or the holidays played a role in the jury's decision.

"The jury did a very careful, conscientious deliberate job," she told Newsday in Monday's editions.

Judge Barbara Kahn said the jury would have to return on Sunday if they didn't reach a decision. Larche told the Post the judge told them a mistrial would burden the families and the next jury.

"I thought about my family and the families of the other jurors," Larche said. "It was not worth it in the end."

Read the entire article...

Grand Juries Become Latest Abortion Battlefield

2008-06-23T11:18:00.000-07:00

WICHITA, Kan. —Opponents of Dr. George Tiller and his clinic here, one of the nation’s few providers of late-term abortions, have tried many ways to stop him over three decades. They have held protests, lobbied lawmakers and complained persistently to state regulators and prosecutors. There have also been several acts of violence, including one in which Dr. Tiller was shot in both arms.

Now his opponents are using a legal tactic that some find startling and others consider inspired. They have turned to an unusual state statute, adopted in 1887, that allows ordinary citizens who gather enough signatures on a petition to demand that a grand jury investigate an alleged crime, a decision usually left to a prosecutor.

Tenacity on both sides of the issue. Especially the doctor who has been shot in both arms!

Click here to read the whole article...

Man Falls After Receiving Spirit, Sues

2008-06-16T11:13:00.000-07:00

From The Smoking Gun:

Last June, Matthew Lincoln was attending an evening service at his nondenominational Tennessee church when he approached the altar where a visiting minister was offering individual prayers for parishioners.

Assigned "catchers" were present on the altar in case congregants fainted, fell, or otherwise lost control. When the minister, Robert Lavala, slightly touched his forehead, the Knoxville-area man "received the spirit and fell backwards."

Except nobody was there to catch him, Lincoln charges in a $2.5 million lawsuit filed yesterday against Lakewind Church and its pastors.

Lincoln, 58, claims that he fell backwards, striking his head against the "carpet-covered cement floor," according to the Circuit Court complaint, which was first reported by Courthouse News Service.

Click here for the full story...

R. Kelly Acquitted

2008-06-13T12:41:00.000-07:00

I Believe He Can Fly:

R. Kelly has been acquitted of child pornography charges that he appeared on a videotape having sex with a girl as young as 13.

The jury read the verdict shortly after 2 p.m. They cleared the R&B superstar of all 14 counts.Kelly dabbed at his face with a handkerchief and hugged each of his four attorneys after the verdict was read.

The verdict brought to an end a criminal case that has been pending for six years. Kelly had argued from the beginning that he was not the man on the video, and the alleged victim said she was not the one who appeared either.

The graphic, sordid video shows the female dancing and urinating on the floor in the man's direction. He then has sex with and urinates on her.

Beyond a reasonable doubt:

In just two days, Kelly's lawyers called 12 witnesses. They included three relatives of the alleged victim who testified they did not recognize her as the female on the tape.

Click here for the full story...

Scott Peterson Back in Court

2008-06-10T15:01:00.000-07:00

CNN.com informs us that Scott Peterson's civil trial is set to begin next month:

MODESTO, California (AP) -- Convicted killer Scott Peterson will be heading to trial again over the death of his pregnant wife, this time in civil court.

The parents of Laci Peterson have filed a wrongful death lawsuit against him, seeking a multimillion-dollar judgment.

A Stanislaus County Superior Court judge has ruled that Peterson would have to stand trial in the civil case.

A jury found him guilty in 2003 of killing Laci Peterson and her fetus and dumping the body in San Francisco Bay on Christmas Eve 2002.

At a hearing Friday, Peterson's defense attorney cited in court a videotape made at San Quentin State Prison in which he maintains his innocence.

The judge stayed his ruling until June 23 to allow lawyers to
appeal.

The trial is set to begin July 8.

Given the lower burden of proof in a civil case, things don't look too good for Ol' Scott (who, incidentally, was arrested with $15,000 in cash, four cell phones, multiple family members’ credit cards, camping gear, knives, tents, tarps, a dozen pairs of shoes, several changes of clothes, a gun, a shovel, rope, 24 blister packs of sleeping pills, Viagra, and his brother's driver's license). Just sayin'.

YIKES!

2008-06-02T17:03:00.000-07:00

A nightmare come to life:

About 130 people aboard an American Airlines flight got a sharp scare after one of the MD-80's two jet engines was disabled by shards from a broken window in the passengers' cabin.

American Airlines spokesman Tim Smith said the outside pane of the triple-pane window shattered about 20 minutes after the 7:35 p.m. take-off Sunday from Dallas/Fort Worth International Airport.

Remember the hundreds of American Airlines flights cancelled a few months back due to shoddy maintenance? FYI, those were also MD-80s.

Click here to read the full article...

Texas Judge Returns 400 Children To Polygamist Sect

2008-06-02T08:39:00.000-07:00

If you've been following the case of the polygamist compound in Texas, the children that were taken are being returned to their parents. The legal issue rested on whether or not Texas child welfare officials proved the children were in immediate danger before taking them. It's worth noting that there were no arrests in this case.

A Texas district court judge has signed an order returning custody of more than 400 children taken from a polygamist group's compound to their parents.

The order returning the children taken from the Yearning for Zion ranch to their parents comes a few days after the Texas Supreme Court ruled that the Texas Child Protective Services department overreached when it took the children away from their parents.

I think one of the most interesting aspects of this case is the language choice made by the media. For example, on talk radio this morning, they consistently used the word "sect." Yes, it is in fact a sect, so the use of that word is accurate. However, phonetically it's problematic: in a case underscored by allegations of sexual abuse, hearing "...the polygamist sect's" (say it out loud) conjures none-too-pleasant images. Intentional?

A less controversial (although perhaps not as accurate) language choice would be denomination, faction, group, or enclave.

Click here for the full article...

Texas Appeals Court Reverses Vioxx Judgment Against Merck

2008-05-30T09:08:00.000-07:00

From CNNMoney.com:

A Texas appeals court on Thursday reversed a 2005 judgment against Merck & Co. (MRK) in the case of a woman who alleged her husband's use of the pain drug Vioxx caused his death.
The jury had awarded Carol Ernst $253.5 million in damages in the first Vioxx lawsuit to go to trial. The jury had concluded Merck's design and marketing of Vioxx was defective, and that its negligence caused the 2001 death of Bob Ernst. The damages award was subsequently reduced to $26.1 million under state law capping damages.

Merck appealed the judgment, arguing there wasn't sufficient evidence supporting the jury's verdict. That led to Thursday's reversal by Texas' Fourteenth Court of Appeals. The court concluded there was no evidence that Bob Ernst suffered a "thrombotic cardiovascular event," or heart attack triggered by a blood clot.

Apparently there is some controversy about whether Merck settled prematurely with other plaintiffs (to the tune of $4.85 billion).

Click here for the full article...

Lawyer Sues Delta for Ruining Vacation

2008-05-29T14:24:00.000-07:00

This combines two of our favorite topics: Law and Travel! Apparently a New York attorney had himself a vacation from hell and lived to sue about it.

Richard Roth, who filed the lawsuit on behalf of himself and his mother, said he planned the Christmas 2007 trip to Buenos Aires to celebrate his mother's 80th birthday. She had grown up in the city, but had not returned in years, he said.

Instead, Roth, his two teenage children, his wife and mother spent three days in airports, went days without their luggage, were treated rudely by airline employees and were forced to spend $21,000 on unused hotel rooms in Argentina, replacement clothes, and other costs.

If I filed a lawsuit everytime I was treated rudely by airline personnel, I'd be a very busy person.

Click here for the full article...

Odd Laws

2008-05-28T09:34:00.000-07:00

In North Carolina, it is illegal to hold more than two sessions of bingo per week in the same building (and those sessions must be less than 5 hours each).

§ 14‑309.8. Limit on sessions.

The number of sessions of bingo conducted or sponsored by an exempt organization shall be limited to two sessions per week and such sessions must not exceed a period of five hours each per session. No two sessions of bingo shall be held within a 48‑hour period of time. No more than two sessions of bingo shall be operated or conducted in any one building, hall or structure during any one calendar week and if two sessions are held, they must be held by the same exempt organization. This section shall not apply to bingo games conducted at a fair or other exhibition conducted pursuant to Article 45 of Chapter 106 of the General Statutes. (1983, c. 896, s. 3; c. 923, s. 217; 1983 (Reg. Sess., 1984), c. 1107, ss. 6, 7.)

The more you know!

Jet Lag Cure: Starvation

2008-05-23T09:32:00.000-07:00

For those of you who travel frequently, this Yahoo! article may interest you. According to U.S. researchers, starving yourself before a flight might be the most effective way to combat jet lag.

Here comes the science:

Normally, the body's natural circadian clock in the brain dictates
when to wake, eat and sleep, all in response to light. But it seems a second clock takes over when food is scarce, and manipulating this clock might help travelers adjust to new time zones, they said.

"A period of fasting with no food at all for about 16 hours is
enough to engage this new clock," said Dr. Clifford Saper of Harvard Medical School, whose study appears in the journal Science.

Yes, you read that correctly: fasting for 16 hours. I don't know about you, but I think I'll take my chances with jet lag.

On the other hand, with airlines cutting snack service to save money, you might not have a choice whether to fast or not.

Click here for the full article.

R. Kelly Trial: 12 Ways to get kicked out of the jury pool

2008-05-22T13:44:00.000-07:00

Here is a piece from the Chicago Tribune regarding attempts to seat a jury for R&B singer R. Kelly's trial. Yikes.

Advice from the R. Kelly trial: 12 ways to get kicked out of the jury pool
By Stacy St. Clair
Tribune staff reporter
5:26 AM CDT, May 15, 2008

Jury selection is expected to resume at 9 a.m., with 10 more Cook County residents available for vetting.There wasn't any progress Wednesday, with not a single person picked for the panel.

Candidate after candidate came in with excuses as to why he or she couldn't serve on the high-profile case.

If the dismissed jurors this week joined together, they could write a book: "How to Get Out of Jury Duty without Really Trying."

Some of the potential chapters:

I have a teenage daughter. Several axed jurors provided this explanation for why they couldn't give Kelly a fair trial. "I would have a hard time see anything involving a child without thinking of my child," one man said.

I would change the age of consent. Two who were kicked off offered this philosophy, one going so far as to suggest that "nature already had an age of [sexual] consent: puberty."I save lives. An oncologist was excused from duty after he told the judge that jury service would create a logistical nightmare for his patients.

Um, well, er, yes, I think I could be fair to Mr. Kelly. Maybe, yes. Nearly everyone who paused when asked if he or she could give the singer a fair trial got the boot from either the judge or the defense.I'm a cop One Niles police officer lasted only about two minutes in the interview room before he was dismissed because of his profession.

I (heart) R. Kelly. Nothing gets prospective jurors booted faster than telling the prosecution they are a fan of Kelly's. Just ask the woman who called him a "musical genius." When prodded to say something negative about Kelly, the best she could come up with was: "He and [rapper] Jay-Z don't get along?" Prosecutors bounced her soon after.

I'll change my vacation plans. Overeagerness to serve on the jury is a definite red flag to attorneys. When one man offered to rearrange a trip to see his parents, the prosecution bounced him for being star-struck.

Click here to read the full article...

Vioxx Ruling Overturned

2008-05-15T10:07:00.000-07:00

A Texas appeals court has overturned a multi-million dollar verdict against Merck, the makers of the painkiller Vioxx. Retrials are currently pending in several other cases. Click on the link to read about the case and the latest developments.

http://www.setexasrecord.com/news/212383-texas-court-overturns-vioxx-ruling

Judicial Hellholes

2008-05-09T11:25:00.001-07:00

The American Tort Reform Association released it's 6th annual Judicial Hellholes report with their rankings of "America's most unfair jurisdictions." How does your home state compare? Click on the link to learn more.

http://www.atra.org/reports/hellholes/

Judge Rules Georgia Award Caps Unconstitutional

2008-05-08T10:48:00.000-07:00

Reports this week of a judge striking down monetary award caps on medical malpractice cases in Georgia may seriously impact tort reform law in the state. Click on the link to read more...

http://www.ajc.com/metro/content/metro/stories/2008/05/01/arrington_0502.html#

Simple Statistics

2008-05-05T09:28:00.000-07:00

If social scientists are right and jurors only retain 10 percent of what they hear in a courtroom — more likely than not what they heard first — what can you do to make them remember the defense’s case?

Using only a few carefully chosen statistics or key numbers to illustrate a point is a great way to arm jurors with ammunition they can use in the deliberations room.

As an example, a general internal medicine patient died from a calf sarcoma after multiple tests in response to “arthritis-type” pain.

Focus group research in the case revealed that highlighting the extent of the efforts made to diagnose the patient’s condition was crucial. The defense formulated a phrase that was used repeatedly to reinforce its theme: “Four tests were done by three different radiologists, at two hospitals, and none of them saw any sign of cancer.”

After trial, exit interviews revealed those words rang out again and again during deliberations — “four tests, three radiologists, two hospitals, and no cancer!”

Used correctly, simple statistics and numbers help to illustrate a theme and help arguments resonate in jurors’ minds, which they will hopefully remember when it comes time to render a verdict.

"Making" the Right Jury

2008-03-17T12:32:00.000-07:00

It's often asked whether there are sure-fire tricks to "picking the right juror."

First, it's important to keep in mind that you rarely "pick" anyone - the best you can do is eliminate the worst potential jurors. But if you can't always pick the "right" juror, there are opportunities to educate the jurors you get.

Consider this: A defense lawyer represented a corporate client who had taken a beating in the local press over the case. Worse, the judge refused a venue change, even though nearly every juror on the panel was familiar with the press' accounts.

After the lawyer used much of his allotted time to expose special biases among the jurors, he shifted his questioning from questions designed to expose and eliminate to questions designed to educate those who would ultimately serve.

"Who thinks there was a rush to judgment in the Duke Lacrosse case - I mean by the media?"

Nearly every hand on the panel went up.

The lawyer continued, "And who thinks that a lot of opinions about those three boys changed once the defense finally put forward its case - meaning what the media had originally written wasn't fair, or was at least incomplete?"

Again, nearly every hand was raised.

In the end, the lawyer couldn't "pick" the right jury, so he "made" it the right jury.