Restoring Realistic Expectations on the Chain of Command

Chain of command is one favored tactic to put nurses (and thus the hospital) on the hook for a doctor’s decisions.  Many times this makes sense to jurors – if they as laypeople question the doctor’s course of action, they can conclude a nurse should have as well.

It’s an easy argument to make since, in hindsight, another course of action “might” have prevented a negative outcome – if only that nurse had had the guts to stand up to that wrong-headed doctor.  Unfortunately, a survey we recently conducted shows jurors expect nurses to do just that.

In a May survey of more than 1,200 potential jurors nationwide, an alarming 84 percent of respondents indicated they believe nurses have a duty to question a doctor’s decision if they disagree with it. This jibes with what we have observed during focus group research – jurors increasingly expect nurses not only to be patient advocates, but also to have enough medical knowledge to second-guess doctors.

We’ve also learned that for whatever reason, jurors believe nurses rarely if ever take the step of going up the chain of command.  The same May survey found that 39 percent of respondents believe nurses “almost never” question a doctor’s orders.  Based on our discussions of the topic during focus groups, this perception is likely due to the shared juror predisposition that many doctors are “arrogant” and would likely disregard such disagreement anyway.

We have had the most success overcoming this plaintiff theme during case research by emphasizing how the medical chain of command, like its military counterpart, functions because nurses follow doctors’ orders – except in extraordinary circumstances.  These circumstances might include a doctor who is incapacitated by health or alcohol, or who orders a C-section for a patient who has expressly withheld consent.  Like a foot soldier, however, the nurse is not considered the appropriate person to weigh in on or dispute routine medical decisions because they don’t have a doctor’s training and background – and the treatment environment and patient safety might suffer if they did.

The best way to counter a plaintiff’s chain-of-command claim will vary based on the unique factors of each case.  If you’d like to hear our thoughts about your case, contact Senior Vice President Claire Luna at cluna@juryimpact.net.

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We consistently advise clients to humanize defendants as a way to help level the playing field.  In that same vein, we will be doing more to humanize ourselves by sharing notable events for the Jury Impact team.  We look forward to working with you soon!

Senior analyst Erik Holmes will be moving to Charlotte, N.C., at the beginning of July.  His wife will be joining the faculty of the University of North Carolina at Charlotte as an assistant professor of criminal justice and criminology.  Erik will remain an integral part of the JI staff, and this move will be a great benefit to our East Coast clients.

Fairness Means Taking Care of Plaintiffs

We’ve previously discussed how a significant number of jurors outright disregard the law or judge’s instructions in favor of rendering verdicts based on perceptions of fairness.  Our recent online and mobile survey of 1,212 jury-eligible participants confirmed this tendency, as 43 percent openly admitted they would rely on their sense of fairness rather than the law – consistent with numerous polls we have conducted.

This time, though, we delved further into what “fair” means to jurors and established some surprising findings.

First, we learned a majority of jurors believe it is “fair” for the defense to cover the plaintiff’s medical bills – even if they don’t believe the defendant was at fault.

Second, in their quest for fairness, an overwhelming 74 percent said they would consider attorney’s fees when calculating damages.

But the most shocking aspect of this figure is the answer to a follow-up question asking if they would still consider awarding lawyer’s fees even if a judge specifically told them not to.  Thirty-three percent said they would ignore those instructions and award attorney’s fees anyway.

Finally, we learned fairness also includes the unforeseen, as slightly more than half of all respondents said they would award more money than the plaintiff demanded to ensure he or she is “taken care of.”  When evaluating a case or going to trial, we believe it’s important to understand these aspects of damages will almost certainly be on the table and are an inherent part of jurors trying to ensure the plaintiff receives all of the money the jury wants them to get.

Although the juror tendency to ignore courtroom instructions and instead rely on their sense of fairness is a seemingly negative finding, we believe this can be a good thing – as long as you and your team take it into account and present a defense story that plays to jurors’ strong desire to achieve “fairness.”  The plaintiff is likely to call on jurors to “make things right,” highlighting the importance of providing a competing narrative that ensures fairness and balance is not a one-way street and instead the “right people” are held accountable.

If you have an upcoming case and need to find ways to appeal to jurors’ inherent sense of fairness, we have a variety of research methods to help you achieve that goal.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net for more information.

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We consistently advise clients to humanize defendants as a way to help level the playing field.  In that same vein, we will be doing more to humanize ourselves by sharing notable events for the Jury

Impact team.  We look forward to working with you soon!

Senior analyst Erik Holmes will be moving to Charlotte, N.C., at the beginning of July.  His wife will be joining the faculty of the University of North Carolina at Charlotte as an assistant professor of criminal justice and criminology.  Erik will remain an integral part of the JI staff, and this move will be a great benefit to our East Coast clients.

Director of Logistics Allison Cooper gave birth Saturday, May 4, to her first child.  Her daughter, Peyton, weighed 7 pounds, 9 ounces. Baby and mom are both doing great – congratulations, Allison!

Witnesses Should Choose Wisdom Over Wisecracks

We’ve all encountered expert witnesses who think they’re the next Jay Leno, and just can’t help themselves from cracking wise and hoping to get a chuckle from the jury.  Maybe you’ve even encouraged witnesses to do this to help them establish “rapport.”

News flash – jurors couldn’t care less if your expert is funny.  

We recently conducted a nationwide survey of 1,212 jury-eligible participants, and we asked them to choose (from a list) the top three factors that would influence how favorably they view an expert’s testimony.  Only 2 percent chose humor as an important factor – tied for dead last with the witness’ gender.  In fact, more participants (3 percent) chose the witness’ race than their sense of humor.

So what are jurors looking for in an expert witness?  It turns out their values in this regard go back to our number one piece of advice during jury trials: Be considerate of the jury’s time.  Don’t waste their time with incomprehensible jargon, and make sure your experts' experience is relevant (not 30 years ago or in a field only tangentially related to the case at hand).

In fact, the number one factor survey respondents said would influence how favorably they view an expert’s testimony is experience, with 75 percent selecting years of experience as their top factor.  Coming in a strong second, at 71 percent, is the ability to explain things in simple terms.  The witness’ education came in a distant third with 52 percent.

And although a dazzling CV is nice, it may be more important to you than it is to your jurors.  Only 6 percent said having a famous employer (such as Harvard or Stanford) was one of their most important factors – the same number who chose how many accolades the expert has racked up in their field.  The number of papers the expert has published mattered to more jurors (18 percent), but it barely cracked the top five.

This survey lends credence to some of the tips we give witnesses during the hundreds of hours of witness preparation we conduct for clients every year:

• Jokes oftentimes don’t play – jurors want a witness who is considerate of their time, and humor is often at odds with being concise.
• Explain terms and educate the jury – particularly if the subject matter is scientific or technical, the ability to explain clearly is critical. 
• Reinforce your experience – it isn’t bragging for the witness to put the case in the context of how many years she has been in the field, or how many surgeries she has conducted.

Keep these survey findings in mind the next time you’re prepping a witness for deposition or trial.  And get in touch with us if you think your witness could benefit from our experience and insight.  We’ve worked with witnesses including CEOs and nursing aides, and we can help bring out their attributes most likely to appeal to jurors.

We also have a unique online witness assessment tool that can allow you to get feedback about a witness’ deposition video from real people in your jurisdiction.  There’s no reason to guess what a jury might think of your witness.

Please contact Senior Vice President Claire Luna at cluna@juryimpact.net to find out more about our witness preparation services or online witness assessment.

Life is eternal – at least when it comes to our consultations

When we state in our proposals that focus group and mock trials include consultation for the life of the case, we mean it.  Our clients have told us this is one of our best selling points, and one that we may not emphasize enough.

Whether it’s been five days, five weeks or five years since we conducted research with you, we are happy to provide further analysis of any new data or fact that has come your way in the interim (for example, a defendant has settled out or a crucial piece of evidence has been excluded), or produce a list of potential jury selection questions if trial has finally been set.  We do this because we care – we take a strong personal interest in each of our cases and oftentimes years after a focus group can still recite details of a key deposition or recall the language that switched jurors to your side.

If you have worked with us before and would like to talk through previous research with us, contact us anytime.

Where's the Video?

As mentioned in previous Things… articles, certain types of cases and jurisdictions lend themselves to jurors quickly suspecting a cover-up, even when those specific allegations aren’t being made.

The cover-up mindset can also affect other aspects of case evaluation – especially when it comes to allegations of “missing” video footage.  In today’s world, where video cameras are seemingly everywhere (on the street, waiting in line in Starbucks, in elevators, etc.), many jurors assume video footage of the incident in question exists – and become suspicious when told it does not.  In fact, when discussing dueling versions of events, the first juror question during focus groups often is, “Where’s the video?”

Especially in situations where cameras were in place but the footage is unaccounted for, skeptical jurors quickly suspect a cover-up, and we have seen plaintiff’s counsel play to those suspicions by using language such footage that has “gone missing” or has been “lost.”

We have found it useful to take the time to educate jurors about the video recording system and the data-collection system, and normalize such procedures as the overwriting of footage after a predetermined period of time – a practice some jurors are familiar with in their lines of work.  The vast infrastructure required to store years’ worth of around-the-clock, high-quality video footage from multiple cameras “just in case” would make Google blush.

Although a lack of video footage – whether because there were no cameras, or policy and procedure required overwriting after a certain number of weeks or months – creates significant challenges for the defense, it also presents an opportunity to get jurors invested in strongly considering both sides, thinking critically instead of emotionally, and taking it upon themselves to figure out the true story in the absence of video footage that might make the trial process easier for everyone.

We’ll note, too, for those times when there is video footage, testing it to find out how jurors interpret it – not just how you want them to interpret it – can be crucial.  Through focus groups and our online research process, we have prompted jurors to evaluate hundreds of hours of footage, including Taser videos, ER security camera footage and surveillance videos of plaintiffs walking, dancing and even rapping despite claims of debilitating injuries.  These findings can be game-changers in terms of how jurors view the entire case.

Whether you have video or not, give us a call to discuss how we can help you evaluate how this footage or lack thereof might shape jurors' perceptions of your case.

Life is eternal – at least when it comes to our consultations

When we state in our proposals that focus group and mock trials include consultation for the life of the case, we mean it.  Our clients have told us this is one of our best selling points, and one that we may not emphasize enough.

Whether it’s been five days, five weeks or five years since we conducted research with you, we are happy to provide further analysis of any new data or fact that has come your way in the interim (for example, a defendant has settled out or a crucial piece of evidence has been excluded), or produce a list of potential jury selection questions if trial has finally been set.  We do this because we care – we take a strong personal interest in each of our cases and oftentimes years after a focus group can still recite details of a key deposition or recall the language that switched jurors to your side.

If you have worked with us before and would like to talk through previous research with us, contact us anytime.

Defendants "Stick Together"

As many of you know, we conduct research in some pretty tough jurisdictions.  Some jury pools are more skeptical than others, more conspiracy minded or more amenable to sympathy, but we have found a common thread across the nation is the perception among many disparate jury pools that medical caregivers cover up for their co-workers when there is a bad outcome.

Due to the frequency with which we encountered this predisposition during focus groups and mock trials, we added a question to a recent national survey of 400 participants.  The responses – with nearly 57 percent believing caregivers “always” or “frequently” engage in this behavior – demonstrate jurors are even more conspiracy minded than previously anticipated.

The “cover-up” preload doesn’t stop at hospitals.  As we have focused more on examining this widespread perception during research, whether discussing police officers, a school district or managers at a meatpacking plant, during focus groups jurors consistently believe there is a tendency for defendants to “stick together” when things go south.

So how do you combat this?  We tell clients it’s important to understand the difficulty in fully overcoming this widespread predisposition, and that in most cases you need to acknowledge it up front with jurors.  Even if you don’t anticipate opposing counsel will make direct accusations of cover-ups, jurors will likely walk in with the mindset that caregivers – especially in the context of them being defendants in a lawsuit – often cover for each other. Any opportunity to introduce third-party credibility, demonstrate that certain witnesses are no longer employed there and thus have no motivation to lie, or refer to national or state standards can be beneficial in mitigating cover-up suspicions.

For more advice on how to mitigate this perception for one of your cases, please call us at 714.754.1010 for a consultation.

Life is eternal – at least when it comes to our consultations

When we state in our proposals that focus group and mock trials include consultation for the life of the case, we mean it.  Our clients have told us this is one of our best selling points, and one that we may not emphasize enough.

Whether it’s been five days, five weeks or five years since we conducted research with you, we are happy to provide further analysis of any new data or fact that has come your way in the interim (for example, a defendant has settled out or a crucial piece of  evidence has been excluded), or produce a list of potential jury selection questions if trial has finally been set.  We do this because we care – we take a strong personal interest in each of our cases and oftentimes years after a focus group can still recite details of a key deposition or recall the language that  switched jurors to your side.

If you have worked with us before and would like to talk through previous research with us, contact us anytime.