Things That Make You Go Hmmm...

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

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

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

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?

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

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...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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!

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.

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