The “Under Their Roof” Bias

The juror bias that an employer should be held accountable for everything that happens "under its roof” is well known.  But what about when a “rogue” employee does something completely outside the scope of their job, such as a nurse who cuts PICC lines or a park employee who falsifies maintenance records, to potentially devastating effect?  Do jurors apply the same predisposition to hold employers responsible for these unforeseeable acts? 

We recently conducted a national survey for a group of institutional clients to assess juror attitudes toward lawsuits. Nearly 82 percent of the 409 participants said they believe the basic employer/employee relationship creates liability for a hospital – even if the employee’s acts were outside the scope of their duties, or outside the employer's supervisory powers. 

If a hospital employee does something negligent that is clearly not part of their job duties, such as falsifying records or sabotaging equipment, the hospital should be held responsible as their employer.

Some of you might remember the “Angel of Death” cases (nurses Beverley Allitt and Kristen Gilbert) in the 1990s.  In those cases, the motives for their horrific acts still aren’t clear, significantly hampering attempts to establish foreseeability.  In other words, if even after criminal conviction the perpetrators still can’t explain their heinous actions, then how is it reasonable to expect their employer to predict, much less prevent, those actions?

 

However, even jurors convinced of human beings’ unpredictability can still find that the employer, since these acts occurred under its supervision, is responsible.  We have consistently found that once the employee’s crimes are brought to light, jurors already predisposed to believe employers are responsible for employee actions simply look backward for “warning signs” the employer might have had evidence this activity was somehow “sanctioned," or indication the employer "turned a blind eye."

This essentially places the burden of proof on the defendant, highlighting the importance of going on the offensive and explaining to jurors protocols and steps taken during the hiring process, such as background checks.  Performance evaluations and co-worker testimony – even if not stellar or particularly glowing – can help establish the employer’s due diligence before the employee went rogue, as well as reinforce the difficulty in predicting bizarre, irrational acts of otherwise competent workers without any documented red flags.

Also, we’ve found through focus group research that the most effective way to separate the individual’s acts from the assumed employee/employee liability relationship is to focus on the randomness of the actions and the unpredictability of human behavior.

Finally, it is helpful to remind jurors the rogue employee has already been, or soon will be, judged in a criminal case and brought to justice.  This can mitigate jurors’ desire to ensure – given the absence of the employee at a civil trial – that “someone” is held accountable (usually the defendant employer present at trial).

If you have an upcoming case that you would like to discuss – regardless of the topic – please don’t hesitate to call us at 714.754.1010. 

Beyond the focus group: Our other services

Hybrid Process 
Although many of you are likely familiar with our proprietary focus group format, some clients opt for a “hybrid” approach to combine the interactive aspects of focus groups with the attorney presentation aspects of mock trials.

This is a popular research option because the juror discussions reveal the strongest themes, language and arguments for both sides, and the mock-trial component of the exercise allows claims managers and attorneys to evaluate and hone the presentations well before trial.

Online Research 
We frequently hear from clients that they have a tough case coming up, but the exposure just isn’t high enough to merit focus group research.  These same clients are surprised to learn that for years we’ve been conducting cost-effective online research to provide high-quality feedback for lower-exposure cases.

By presenting the case facts, arguments for both sides, and evidence and demonstratives to jurors online, it not only allows you to gain similar real-time feedback as in a focus group, but it saves on facility and travel costs. 

Notably, this process allows us to reach a larger pool of respondents than a traditional focus group – with a minimum of 35 online participants providing written feedback, argument ratings, witness evaluations, pertinent case questions and language and thematic suggestions.  We conduct individual interviews with at least 10 percent of respondents to dig deeper and “push back” to get the same kind of insight you expect from our live focus groups. 

Other Services 
Jury Impact staff assists with jury selection and trial monitoring for dozens of trials every year.  Our seasoned analysts have the resources and savvy to provide on-the-spot advice on your most and least troubling jurors as well as how to tailor the defense’s message to the selected jurors.

In addition, with former reporters on staff, our exit interview process can provide valuable insight into the mindsets behind jurors’ verdicts.  These insights can be applied to future cases once you find out what worked – and what didn’t.