The Language Advantage

The holidays are upon us, which means retailers are doing their best to compete for your shopping dollars.  So given the vicious competition and aggressive price cuts employed to get the consumers’ attention, how do retailers gain an advantage?  Well, at least one aspect is language.

A December 6 Rasmussen poll of 1,000 Americans revealed the majority prefer store signs reading “Merry Christmas” as opposed to “Happy Holidays” (66 percent versus just 21 percent, with 13 percent undecided).  Although surely other factors such as big price reductions and stocking-specific products can play into consumer decisions, this survey shows how important the right words can be in gaining an edge – regardless of whether you’re a retailer, product manufacturer or a legal team trying to tell the most effective story.

[Read the entire report and see survey wording by clicking the following link: 66% Prefer ‘Merry Christmas’ Over ‘Happy Holidays’]

For some, language is about more than simple preference.  Witness the Arizona Salvation Army volunteer who was punched last week after telling a customer “Happy Holidays” instead of “Merry Christmas.”  Although that customer may have been an extreme, it’s actually quite common for language choices to prompt a visceral reaction.

We approach mediation and trial messaging with the same mindset, which is that in order to connect with your audience and get them to buy into your story, you must first understand your audience’s values, preferences and mindsets, as well as the language and numbers they respond to, before trying to sell them on your version of events.  Jurors don’t want to do math or sit through hours of expert testimony – they want to side with the simpler story that makes the most sense and appeals to their experience and worldview.

Civil trials are similar to Black Friday sales in that there is fierce competition to get through to a specific audience – and any edge matters.  If you have an upcoming case that could benefit from the right language, words and messages to tell the most compelling story, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.

And for now, we’ll just stick with telling you Happy New Year!  May your 2014 be happy and prosperous, and we look forward to working with you.

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

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

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

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

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

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

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

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

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

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

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

Making Juror Biology Work For You

We tell our clients all the time that it’s much easier to convince someone of something they already believe.  Recent research is backing up this fundamental finding, with science showing the human brain actually processes information differently depending on people’s preconceived notions.

Researchers conducted a study where people were briefed with an introduction of two causal theories, one plausible and one implausible, so they were primed to believe one theory.  Participants were then given information supporting either theory to test how they interpreted the different evidence.

MRI imaging showed when people were presented with evidence consistent with their beliefs, the brain region associated with learning and memory was activated.  When they were presented with evidence that was inconsistent with their beliefs, the brain region associated with error detection and conflict resolution was stimulated.  Researchers concluded people’s beliefs act as a “biological filter” when processing information.  (Read the full article here: http://rstb.royalsocietypublishing.org/content/359/1451/1749.full.pdf)

This means that during trial, jurors may not know the degree to which their beliefs are impacting the way they interpret evidence.  When jurors hear or see something that doesn’t coincide with their beliefs, the brain will activate error detection instead of their memory, causing them to discredit the information from the outset.  This “biological filter” makes it difficult for jurors to remain unbiased and set aside their beliefs as they judge causal events in your case.

Overcoming biology may seem like a daunting task, but understanding these beliefs before trial will help you find ways to present your evidence so it aligns with your jurors’ preconceptions.  The science – as well as our own experience – shows us it’s easier to convince people of causal claims if it’s something you want to support rather than discredit.

One example of this is if you have a case involving the decision to perform a C-section.  Rather than focusing solely on mitigating the preconceived notion many jurors hold of performing a “routine” C-section “just in case,” play to the other common predisposition that “all surgeries carry some risk” and “there are too many C-sections being performed today.”  By reiterating the risks of all surgeries, jurors’ brains will interpret it as learning why doctors waited to perform a C-section until it was absolutely necessary to do so rather than detecting an error that C-sections are “routine” and the doctor’s actions were negligent.

The takeaway is to find what aspects of your case already resonate with jurors’ pre-existing opinions and present the evidence in a way that bolsters those opinions rather than opposes them.  If you’re looking for ways to present your evidence in a way that will overcome these “biological filters,” contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714-754-1010.

When “Never Events” Happen

There are perhaps no two words that strike fear in a med-mal defense lawyer’s heart like the phrase “never event.”  The message is clear – these events should “never” happen, and if they do, it’s your client’s fault.

Defending a case involving “never events” is a tall order, in part because so many of the “never events” listed by the National Quality Forum (NQF) and Centers for Medicare and Medicaid Services (CMS) – the two primary organizations that publish the lists – are truly events that should never happen, such as performing surgery on the wrong patient or discharging a newborn to the wrong person.  The fact the complication involved in your case – whatever it may be – is on the same list as these obviously negligent mistakes allows a plaintiff’s lawyer to paint what happened in your case in a very unflattering light.

Of course, you know several so-called “never events” are not always preventable and don’t necessarily indicate anyone was negligent.  This is particularly true of relatively common occurrences such as pressure ulcers, patient falls and post-surgical infections.  Patients with poor circulation who are immobile for long periods of time will sometimes get pressure ulcers no matter what preventative steps are taken, just as surgical sites will sometimes get infected.

The challenge at trial is getting your jurors to understand and believe that.

We have worked on numerous cases involving “never events” over the years, and the most successful tactic we’ve found for defending these cases is educating jurors about what the NQF and CMS lists actually mean.  The NQF list, first published in 2002, was intended to decrease the frequency of such events by focusing attention on what it regards as events that are usually preventable (although some items on the list are considered always-unacceptable errors).

Even more useful for defense purposes, the CMS list is simply an insurance classification of events and complications that occur at hospitals and are not reimbursable by the government.  This list doesn’t mean the events will never happen absent negligence, just that the government will never reimburse the hospital for them.  In a world in which most people have experience with the government or insurance companies denying coverage, this distinction can really resonate with jurors.

Defending cases involving “never events” will remain a challenge, and there’s simply no way to remove all of the sting from such a loaded term.  But by educating jurors about the true meaning of “never events,” you can at least get over the first hump and get the jury to consider the circumstances and the merits of the care in this particular case and decide whether the complication was truly avoidable.

If you’re working on a case involving a “never event” or some other tricky complication, we’d love to help you figure out the best approach.  Contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net to find out how we can help.