Scales Tipped Toward the Plaintiff From the Beginning

The symbol of justice may be an evenly balanced scale, but that’s not always the reality with a jury.  In fact, an alarming number of jurors tip the scales toward the plaintiff from the outset of trial, before they hear a word from either side.

We have observed during focus groups over the years a tendency for jurors to believe there “must” have been some fault by the defendant or else there wouldn’t be a lawsuit.  These jurors seem to assume there is some kind of mechanism early on to separate the nonsense claims from the closer calls or those with merit.  In reality, however, we know judges are extremely reluctant to dismiss even obviously specious claims.

This juror tendency to believe there “must” be some merit becomes even greater should a case make it to trial, as jurors tend to believe a frivolous lawsuit would have been thrown out long before it got to a jury.  In fact, in a recent nationwide survey we conducted, an astounding 69 percent of respondents agreed that if a case makes it to the stage where it is being tried in a courtroom, they would assume the plaintiff has a legitimate complaint.

That means eight (or more) members of a 12-person jury could already be a step (or two) toward the plaintiff’s corner.

That’s why we believe it’s essential to begin during voir dire educating jurors that making it to court does not mean the plaintiff has a legitimate grievance – and identifying and weeding out those jurors who don’t get it.  We also believe it’s important, if possible, to ask for an instruction telling jurors that the fact there is a trial does not mean or imply that one side is more correct than another.

Give us a call at 714.754.1010 if you’d like to hear some of our suggestions for weaving this theme into your voir dire – and ensuring that you get as fair-minded a jury as possible.

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 features 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 regarding your most and least troubling jurors as well as how to tailor the defense’s message to the selected jurors.

In addition, with former news 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.

Advance Your Case With Advanced Technology

Many jurors could believe attorneys are riding to the courthouse by horse and buggy, judging by the antiquated technology some counsel trot out during trial.

Some lawyers worry technology can intimidate jurors or look too flashy, especially if it’s clear a corporate client is footing the bill.  But during the past seven years of juror exit interviews, with literally hundreds of jurors interviewed post-trial, not a single one has ever complained about excessive technology use.

Even in the most rural or economically troubled jurisdictions, television and movies shape juror expectations of what goes on at trial and the kinds of technology lawyers use.  This means that when lawyers use overhead transparencies rather than TrialMax, jurors believe lawyers are doing their clients a disservice by trying to advance an old-fashioned, “good ol’ boy” shtick rather than using tools that will best aid jurors’ understanding of the case.

Earlier this year, we observed a pair of Midwestern plaintiff attorneys apologize for not having the defense’s “fancy computers” and instead use transparencies and enlarged copies of records slapped with paste onto one of those tri-fold, science fair-style boards.  These homespun displays contrasted sharply with their $20 million demand.

The jurors were not impressed.  One told us during an interview last week, “I haven’t seen transparencies used since I was in kindergarten, which was more decades ago than I’d like to admit.”  Rather than artificially trying to come across “like us simple folk,” the juror added, the attorneys should have capitalized on the available technology and potentially improved perceptions of the merits of their case.

“Every time there was a record to show, the defense could pull it right up and enlarge it,” the juror told us.  “The defense clearly had nothing to hide.”

Rather than resist technology, we strongly suggest using it to your advantage.  Jurors will appreciate your seamless presentations, and you’ll give your case a professional edge.  And unlike the attorneys in the aforementioned trial, you won’t have to risk your pride by tripping over your thicket of posterboards.

To discuss potential ways to use technology during your next trial, as well as how we can help test your audiovisuals’ effectiveness before you get to the courtroom using our sister company’s smartphone survey app, please email us at cluna@juryimpact.net or call 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 features 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 regarding your most and least troubling jurors as well as how to tailor the defense’s message to the selected jurors.

In addition, with former news 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.

Common Sense May Not Be So Common

When working up cases for focus group research, we sometimes encounter trial teams inclined to skip testing a certain lawsuit because the key issues are “obvious” or “common sense.”  But in research around the country, we’ve learned a funny thing about common sense – there’s really no such thing.

Just like we suggest to witnesses that they never use the word “assume,” we’ve learned not to use that word ourselves.  We believe you always need to test your assumptions – no matter how basic they seem – before taking your case before jurors.  Although you or I may believe something to be common sense, a lay juror with a different background may view things very differently.

For example, our clients include a lot of top hospitals with sterling reputations, which on the surface seems like it could only be a positive in the context of a jury trial.  But research has shown us time and again that a top hospital’s excellent reputation can heighten juror expectations for care and outcomes and cause them to be more critical of caregivers because they hold the hospital to a “higher standard.”

In fact, 49 percent of respondents in a recent national survey we conducted "somewhat" or "completely" agreed they would hold top hospitals to a different, higher standard than other hospitals when evaluating a medical malpractice claim.  These jurors’ “common sense” is much different than yours or ours.

Top hospitals should be held to a higher standard than other hospitals when looking at a medical malpractice claim.

Similarly, what might seem like a given to a juror in a big city could strike a rural juror quite differently.  We conducted focus groups for a case where a surgeon brought a handgun to work at a rural hospital in the South.  Along with the attorneys, we anticipated jurors would be shocked by a gun in a hospital environment, but many of them insisted this doctor was simply exercising her Second Amendment rights and it had no bearing on the case.

Here are some other ways we’ve seen “common sense” turn out to be not so obvious during case research:

• You might think jurors would hold a hospital responsible for the suicide of a patient in a locked mental ward, but many in a conservative Midwest jurisdiction in fact believed it wasn’t the hospital’s fault because people intent on committing suicide will “find a way.”

• We suspected that if a pregnant woman smokes, jurors would blame the mother’s behavior for negative outcomes with the baby.  What we actually found during focus groups is that many jurors – particularly in less affluent jurisdictions – believe this known pregnancy risk elevates expectations for caregivers.

• Public opinion polls consistently told us most people have unfavorable impressions of health insurance companies, but focus group research showed participants have fairly high opinions of their own insurers – it’s the industry as a whole they don’t like.

​Keep these in mind as you prepare your next case for trial.  What may seem like common sense to you could strike your jurors quite differently – and only by doing research can you find out what your jurors are actually likely to think.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net to find out how we can help you avoid the common-sense pitfall.

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 features 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 regarding your most and least troubling jurors as well as how to tailor the defense’s message to the selected jurors.

In addition, with former news 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. 

Connect with Jurors Fast by Putting Your Best Foot Forward

Real estate agents know the first photo of a home for sale has to be an eye-catcher or the buyer will never get to selling points such as the granite countertops or nearby Blue Ribbon School.  A recent Wall Street Journal article found an astounding 95 percent of homebuyers viewing online listings looked at the first photo (typically of the home’s exterior) for 20 seconds – more than a third of the total average time spent looking at all photos – and after that their eyes tended to meander all over the screen with varying degrees of attention. 

By researching how homebuyers interact with Internet listings, real estate professionals are able to better understand the importance of leading off with the most effective photo to engage buyers.  This principle of putting your best foot forward applies to jury research as well.

Regardless of the product – real estate, new types of toothpaste or your side of the story in a civil trial – the article highlights the importance of first understanding how your audience will view your product (in a trial context, the key language, witnesses, themes and  arguments of the case), and then presenting your most compelling information up front to quickly connect with jurors.

For example, when we conduct witness preparation sessions one of the first steps is to get the witness talking about why they got into their line of work in the first place, and some of their most positive experiences.  Years ago, while an anxious witness was telling us about her nursing background, she mentioned as an aside that she was “hand-picked” by a doctor to be present during the deliveries of his own children – a compelling fact that might not have come up naturally during direct examination (and especially cross).

When our team pointed out the potential significance of this information to a jury – practically a throwaway line as far as she was concerned – she not only gained more confidence in her testimony, but it opened other avenues of questioning that led to her saying she got into nursing to “be there for that miracle” – a moving statement that came out organically and poignantly.

At trial, armed with newfound confidence and a mindful attorney who added these humanizing types of questions early during direct examination, this formerly nervous and reticent nurse was poised, confident and made an immediate – and extremely positive – impression on the jury.

Whether through conducting focus groups, surveys, witness preparation or online research, we always recommend taking steps to learn about the jurors in your particular jurisdiction, and uncover what they believe is your strongest, most sympathetic position.  Their candid feedback allows you to lead with the most effective themes and language to connect right away, and ultimately arm your advocates in the deliberation room.

If you have an upcoming case that could benefit from research, please feel free to call us at 714.754.1010 and we would be happy to discuss your goals and how our services can help you and your clients.

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 features 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 regarding your most and least troubling jurors as well as how to tailor the defense’s message to the selected jurors.

In addition, with former news 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.