Language Matters

As any newspaper reporter or copy editor knows – especially when writing headlines intended to hook the reader and provide a sense of the story below  – words matter.

For example, are you more likely to support a financial “scheme” or a “plan?”  When you read that a congressional committee “demanded” a federal agency hand over records, does it have the same narrative impact as reading the committee “requested” those same documents?  How about if the federal agency in turn “rejected” that demand, versus “declined”?

Language is a tricky thing, and it seems every trial jurisdiction uses a different dictionary.

For example, a recent CNBC poll showed 37% of Americans polled opposed the “Affordable Care Act,” compared to 46% who opposed “Obamacare.”  At the same time, more people supported “Obamacare” (29%) than those who were in favor of the ACA (22%).  As you know, they are the same thing, yet the language on both sides elicited very different responses.

http://www.cnbc.com/id/101064954

The courtroom is no different than politics, advertising or media, and the importance of using jurors’ language and choosing the right words and terms at trial cannot be overstated.

In some cases we’ve heard trial attorneys describe extremely premature babies as the “size of a dollar bill” or “a stick of butter” – language that was revealed during exit interviews to have a dramatic impact on the jurors when discussing the likelihood a newborn “this small” would have complications regardless of the care rendered.  Although “two pounds” also has an impact – and it’s certainly more juror-friendly than saying the baby weighed 907 grams – it still requires math and a bit of context you shouldn’t assume your jury has (especially those who have never had a child).

Along these lines, we always recommend talking about pregnancy in terms of months, not weeks.  Describing a patient as “24 weeks along” not only requires jurors to do mental math – causing them to become distracted while you present your case – but it is far more effective, as well as contextualizing, to describe the resulting baby as "three months early."

Another example: during research for a recent case, there was a significant difference to jurors between a national medical organization recommending a certain test only when specific criteria are met, and when that same medical organization actively recommends against that test unless the criteria are met.

The importance of discovering and using the right language isn’t limited to medical malpractice.  In fact, we’ve found that even in contract, workplace discrimination or personal injury cases, using the right language – and more importantly, avoiding the wrong words – can have a significant impact on the outcome.

Having been involved with more than 50 trials and interviewed tens of thousands of jurors across the country during hundreds of focus groups, we have unique insight into the specific language jurors use to talk about lawsuits – and how that can change from city to city, county to county, and state to state.  If you have a case that could benefit from the thematic and language input of your unique audience, give us a call so we can discuss your goals.  Senior Vice President Claire Luna can be reached at 714.754.1010 or cluna@juryimpact.net.

With Challenging Witnesses, Setting Expectations Allows You To Surpass Them

We’ve all had the experience: stepping up to a restaurant’s host stand and being told there’s an hour-long wait – just to be seated 30 minutes later.  It’s a classic example of “underpromise and overdeliver,” and it gives you a positive feeling about the place because it’s already exceeded expectations by seating you earlier than anticipated.

Just like restaurant hosts have the power to surpass expectations since they created them in the first place, so do trial attorneys when it comes to putting challenging witnesses on the stand.  By explaining to jurors a witness’ rough edges or faults ahead of time, you can create a lower bar that is easier for your witness to clear.

We have observed this several times monitoring trials around the country, and juror exit interviews have confirmed the effectiveness of this tactic.

The most notable example: an intelligent, successful surgeon who was keenly aware that he is at the top of his field.  Being a defendant in a lawsuit did not fit with his perception of himself, and his resentment of the entire process displayed itself repeatedly during prep sessions in the weeks leading up to trial.  Forget the humanization we’re constantly recommending – we were just trying to get this doctor to stop rolling his eyes and yelling, “Stupid question!  Next!” after every mock cross-examination question.

Fast forward to voir dire and opening statements.  The trial team, including one of our lead analysts, knew we had to do something to prepare the jurors for this witness’ palpable anger so they wouldn’t immediately perceive him as the arrogant, “rushed” doctor with a God complex plaintiff’s counsel desperately wanted to make him out to be.

The answer is the trial version of overpromise and underdeliver: Inoculate early; inoculate often.

During voir dire, jurors were told the defendant was extremely upset at the allegations being made against him – and context was provided that before the incident in question, the doctor and plaintiff were actually friends.  Suddenly, the jurors were primed to view our witness as a person with feelings, and understand why he might take the whole process personally.  When asked if they could be fair if this witness got upset on the stand, the jurors all nodded in empathy. This inoculation continued during opening statements, and it set the stage perfectly for what started out as disastrous testimony by our witness.  To put it bluntly, he was a jerk.  But when we talked to jurors after the verdict – for the defense, we will add – they consistently shared the same perception of our doctor: “He wasn’t as bad as we thought he would be.” Several jurors even parroted our lawyer’s language and noted they would take it personally as well if they were “under attack.”  Clearly, this was a perfect example of managing juror expectations from the outset and setting the stage for what might otherwise have been a disaster on the stand. If you have an upcoming case with a potentially difficult witness and want to discuss how to manage expectations at trial, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.  We would love to hear from you.

The Best Expert May Be The One You’re Not Paying

We recently had a product liability case involving a gruesome workplace accident involving a piece of heavy machinery manufactured by the defendant.  The plaintiffs were suing because they believed the defendant manufacturer’s product, as designed, posed an unreasonable danger to end users, causing wrongful death.  Jurors quickly identified key themes for the plaintiff and defense, and both sides presented compelling arguments – leaving many jurors on the fence regarding which party to support.

However, we noted jurors consistently focusing on an accident investigation report by OSHA (Occupational Safety and Health Administration) that concluded the design and manufacturing of the product was not a factor in the accident.  This OSHA report, although not terribly in-depth, served as sort of an independent “tie-breaker” by way of OSHA’s third-party status, and pre-existing juror predispositions about OSHA being the “safety experts.”  Of note, even jurors with negative opinions of the agency (namely, those who had been on the receiving end of an OSHA investigation) viewed it as an independent organization whose opinion on safety matters carried weight.

When working on a case involving any topic, whether medical malpractice, contracts, maritime law, personal injury or product liability, presenting credible third-party testimony or evidence can provide a distinct advantage for your narrative, and a lighthouse to help navigate the “he-said-she-said” fog.  Helpful third-party evidence can include any certifications or extra training employees or defendants have received – whether you’re talking about police officers, nurses, warehouse employees or CEOs.

This also applies to witnesses and experts, who jurors assume are typically “hired guns.”  If you can present witnesses who are, for example, treating doctors not being paid by either side, jurors will give their testimony more weight because they have nothing to gain from their testimony. 

Any oversight or credentialing organization – whether city, county, state or federal agency – can be a considerable asset to your story, whether in shifting responsibility to other parties, or establishing your client acted within the standard of care.  If no independent third party has chimed in, even the fact that a governing body has never sanctioned, fined or criticized actions or practices can serve a similar purpose.

If you would like to talk through one of your cases for ideas on identifying that credible third party, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Mind the Gap When Telling Your Story

A trial is typically not the ideal format for telling your client’s story.  Presenting jurors with numerous witnesses and hundreds (or thousands) of pages of documents spread over two or more weeks can result in a fragmented narrative that leaves jurors overwhelmed or confused.  It’s your (and our) job to overcome these limitations of the trial format and focus on telling the big-picture story from the outset.

Recently, academic studies have shed light on the processes jurors use to make sense of a case.  These studies found that because of gaps in presented information and disagreement among witnesses, jurors often “fill the gaps” and actively “search for … explanations to make sense of what they are seeing and hearing.”  What’s more, once they begin deliberating in the jury room, jurors will pool their individual assessments to come up with a hybrid story that incorporates all of their views about the conflicting and incomplete information they’ve heard.  (Read the entire article here: http://www.thefederation.org/documents/11.Empirical%20Analysis%20of%20Jurors-Diamond.pdf)

Although jurors are instructed not to form opinions about a case until they’ve heard all of the evidence, we know this isn’t how it works in the real world.  We’ve interviewed plenty of jurors who made up their minds about a case as early as jury selection or opening statements and spent the rest of the trial looking for evidence that confirms their initial leanings.

That’s why it’s important during opening statements to focus on the big picture and tell jurors a simple story – your 30-second version of what the case is about – before fleshing out the details.  If jurors have your story – and not the opposition’s – in mind from the outset, they will be more likely to “fill in the gaps” during the course of trial in a way that favors your side.

We also recommend using clear, detailed timelines as demonstratives you can refer to throughout trial.  We have found during focus groups that jurors often crave a timeline and are able to more clearly see the big picture once everything is laid out in clear, chronological order.  Having a visual timeline for jurors to refer to in effect leaves fewer gaps they will be tempted to fill in with their own version of events. 

In our experience, timelines should be as detailed as possible – again, to leave as few gaps as possible.  Even if not much happened at a specific time – such as when labor is progressing for several hours in a birth injury case – it can be useful to simply put the patient’s vital signs or fetal heart status on the timeline so there’s no long gap jurors will be tempted to fill in unhelpful ways.  Rather than a gap when caregivers were “ignoring the patient” or “looking at their Facebook,” jurors look at the timeline and see “constant monitoring” and “above-and-beyond care.”

If you would like our advice on how to frame your story or “fill the gaps” before jurors do it for you, please contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.