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.