Use Smartphones to Get Smarter About Your Jury

If you’ve ever been 20 minutes into a two-hour errand run and had anxiety over leaving your cell phone at home, maybe even turning the car around and going home to get it, then you’re fully aware of how integral these devices have become in our daily lives.  This is a good thing in the sense that we are better connected, have access to virtually unlimited information and, for the navigationally challenged, can get turn-by-turn driving directions in seconds.

However, when it comes to the courtroom, this reliance on our phones, tablets and wonder-devices presents a unique, and troubling, challenge.  In prior newsletters we’ve covered the temptations jurors face to research terms or even people on the Internet during trial – even despite specific instructions from a judge not to.  In the old days, the court could just confiscate all newspapers from the deliberation room, but with the sheer amount of information and research tools available to jurors with the touch of a button, the perceived acceptance of using these devices in a courtroom – just as people would in the course of their daily lives – has become more commonplace.

Recently, NFL defensive tackle Darnell Dockett made the news for live-tweeting, and mocking, his jury duty experience.  The New York Post characterized his anti-jury-duty tweets as “hilarious,” supporting the general impression among many people that this is acceptable behavior for a potential, or actual, juror.  

The article doesn’t state whether the judge specifically banned the use of devices, but the article did note, “Dockett even claimed to continue to tweet on his iPhone after the guards took his Android” – further demonstrating some people simply don’t see a problem with this activity, or openly defying judges’ orders.

But what happens when judges themselves fall prey to these temptations?  Last month, a Detroit judge got in hot water when she was caught tweeting during a murder trial.  The day the defendant’s close friend testified, she tweeted, “A true Friend will support you at your worst and NEVER again mention when you become your best.”

The judge clarified the jury was out of the courtroom at the time, but it just goes to show how commonplace social media has become in most peoples’ lives and in the courtroom. 

And you and your trial team should use it to your advantage.

First, you would be amazed what some people put out there in the public, whether via Facebook, Twitter or comments on news sites.  When we’re called to consult on a trial, we start by conducting thorough social media audits on the jury panel to see if there is any information that can help determine whether certain jurors will be helpful or detrimental to the case.  Political leanings, recreational activity, education level, viewpoints on current events, homeownership, etc. can all tell you something about a potential juror – and sometimes this information takes very little effort to gather.

More importantly, we continue to conduct ongoing monitoring of their online lives to ensure they are complying with court orders and are not discussing the trial.  On a surprising number of occasions we have had unfavorable jurors kicked off of the jury for openly defying orders not to discuss the trial on social media. 

Finally, don’t assume just because a judge gives jurors specific instructions about not researching aspects of the trial or discussing the proceedings on social media, they will listen.  In fact, you should operate under the assumption they will give into smartphone temptation, and ensure time is taken to address likely predispositions and potential misconceptions they might encounter online, and educate them through expert testimony in a way that benefits your case.  

If you would like to know more about how we can use technology and social media to benefit your case, or how to best educate jurors about complex issues, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.  

------------------------------------

This will be our last issue of Things in 2014. The newsletters will resume January 7, 2015. Happy holidays, and thank you for your continued support! We look forward to working with you in the new year.

Debunking Sham Science in the Courtroom

It’s no secret attorneys can usually find an expert witness to say just about anything they want, but this becomes particularly problematic when that expert is testifying regarding complicated scientific or medical issues about which lay jurors have no knowledge, background or understanding.  An opposing expert may be peddling snake oil while yours has medical literature on his or her side, but how is a jury supposed to know who’s the fraud and who’s the real thing?
 
We’ve noticed the issue of sham science in the courtroom particularly rears its head in relation to neuroscience – perhaps no surprise given the complexity of the field.  In fact, scholarly research has found that specious neuroscience can be used to dupe people who have no background in the field – a group that would include most jurors.
 
In our experience, the use of brain scans is an area where jurors are particularly vulnerable to experts willing to mislead.  Technologies such as SPECT scans and functional MRIs (fMRI) produce colorful, compelling visual images that unscrupulous experts can manipulate into showing whatever they want them to show.  These images take on added significance among jurors accustomed to such high-tech forensic presentations from TV shows such as CSI.

Based on recent trial experiences, we believe the best tactic to combat such sham science is to use your own experts to unmask exactly what the opposing expert is doing – taking them “behind the curtain,” so to speak.  It is not enough to simply have your experts offer a competing interpretation of a brain scan, because it can be too difficult for lay jurors to sort through complicated scientific testimony and figure out who is right.  Instead, we recommend unleashing your expert to attack his or her counterpart’s methodology. 
 
For example, during a recent trial involving alleged brain damage, the plaintiff’s neuroscience expert relied on a bright, multicolored SPECT scan to highlight areas of supposed damage.  Based on exit interviews, we know jurors found this very compelling – that is, until they heard from the defense expert.  The defense expert testified how the plaintiff expert’s color scale used is intended not to diagnose areas of brain damage but only to highlight previously known damage for presentation purposes (such as at conferences or in medical literature) because it uses bright colors to make extremely small differences look more dramatic.  In other words, it was a complete misuse of technology intended to mislead the jury.  Jurors told us after the trial that the defense expert “destroyed” the plaintiff on this issue.
 
Although jurors may not be neuroscience experts, they’re smarter than we often give them credit for.  They’re capable of understanding how they’re being misled by sham science, but it’s up to you to show them exactly how that’s happening rather than just asking them to believe your expert’s word instead of the plaintiff’s.
 
If you have a case where sham science comes into play, we’d love to help you figure out how to address it.  Contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net to find out how we can help.

Bring Clarity, Not Confusion, to the Courtroom

Contusions.  Are they hair?  Bones?  Perhaps another name for wisdom teeth?

The Onion posted an amusing article Monday about a juror who spent an entire trial confused about the meaning of the word “contusion” because he was too embarrassed to ask – and no one bothered to explain it.  Unfortunately, it’s funnier because it’s true.  Far too often, attorneys and witnesses throw around jargon in the courtroom without bothering to explain basic terms.  It goes along with knowing your case, or your line of work, far too well and assuming others have the same base of knowledge that you do. 

These assumptions can prove problematic, and could potentially derail your entire case.  There’s the minor issues, such as the length of a full-term pregnancy, and the major ones, like clearly defining that a doctor is an independent contractor rather than a hospital employee.

It sometimes shocks clients at our focus groups that laypeople don’t know these things, and these participants’ opinions then get jettisoned because they’re uninformed.  But it’s not about whether a juror is smart or dumb; IQ and education level don’t have any impact on whether a juror automatically knows a contusion is just a fancy word for bruise.

Defining terms isn’t about “dumbing down” your case (and believe us, jurors can sense when they’re being condescended to and will not be happy).  It’s about making sure you’re in control of educating the jury about key terms and issues.  Evaluating your case with a representative group of jurors, either in person or online, can help you figure out potential areas of confusion.  Every report we produce includes a section on jurors’ verbatim questions, and making sure your trial team proactively answers those questions will give your side the courtroom advantage.

To learn more about educating your jury, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.
  

A Focused Jury is a Better Jury

It goes without saying that putting life on hold for weeks to serve as a trial juror is less than convenient for most people.  Whether it’s work, family or both, almost everyone has something they should be doing – or at least would rather be doing – instead of sitting in a courthouse for several hours a day hearing about emotionally draining issues.

That’s the position in which our court system places jurors, yet oftentimes we do nothing except pay lip service to their inconvenience and sacrifice.  Too often, the result is preoccupied trial jurors with multiple other demands for their time and attention.  Obviously, distracted jurors are not in an ideal place to pay attention and come to a rational, logical conclusion.

So what can be done, short of limiting juries to retirees?  Although there is no ideal solution, several states and jurisdictions are starting to address the problem.  Their solutions range from a Wisconsin juror pamphlet recommending yoga, meditation and exercise to hotlines that connect stressed-out jurors with mental-health professionals.

That’s all well and good, but in our experience there are things you can do – with the cooperation of the judge and opposing counsel – to help make the burden of jury service more manageable – and help your jury remain engaged and pay attention to your case.

• Flexible scheduling – We’ve found from interviewing jurors post-trial that it is enormously helpful for them to have some time away from court during the week.  Whether it’s one day off per week or having shorter breaks and stopping every day in the early afternoon, this allows jurors to pick up the kids from school, squeeze in a shift at work or at least keep on top of what’s happening at the office. 
• Time limits on witnesses – In our experience there are few witnesses who require a full day of testimony, and most witnesses who take that long do so because of plodding, repetitive examinations by counsel.  Jurors hate having their time wasted, and lawyers aren’t doing themselves any favors with overly long witnesses because jurors will simply get bored and tune out.  We’d suggest discussing time limits with the judge and opposing counsel – it’ll keep the trial moving and keep the jurors engaged.
• Bring doughnuts – Jurors are people, too, and people love doughnuts.  Pitching in with opposing counsel to bring an occasional treat can provide jurors some relief from the drudgery of jury duty.
• Ask what works for them – The judge can structure the trial any way he or she wants, so it might be worth asking the judge to poll jurors about what would make their lives easier.  Would they prefer one day off per week, or would they rather plow through?  Would it be helpful to start later in the mornings or finish earlier in the afternoons?  Would they prefer a longer lunch break or a shorter trial day with minimal breaks?  After all, it’s their lives you’re interrupting.

Jury service will never be without its inconveniences, but we believe it is within the power of the judge and attorneys to minimize these hassles and be as accommodating as possible.  You’ll be rewarded with a more attentive and focused jury.

To hear more about our thoughts on keeping jurors engaged, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.

Avoiding Mistrial by Facebook

Social media audits of prospective jurors are now (or at least should be) the standard before voir dire.  But too often, once the trial team has learned of jurors' “likes” for Mitt Romney or the Kardashians or chemtrails and jury selection is over, their social media profiles are ignored.

From our perspective, monitoring of jurors’ public social networking should continue through trial and through deliberations.  The potential for misconduct is too high to ignore, since many jurors active on social networking may be unimpressed by the flood of admonitions judges provide at the start of trial and before every break. 

Judges around the country have been forced in growing numbers to confront willfully disobedient jurors who post on Twitter, Facebook or their personal blogs about ongoing trials.  By 2010, according to Reuters Legal, juror social media postings have called into question at least 90 verdicts and prompted nearly 30 new trials.  We’re sure those numbers have jumped since then.

When monitoring a trial, we check jurors’ social media postings on a daily basis.  Most of the time we find nothing – really, most jurors do follow instructions.  But there are a significant few who do not, including the young man from Florida we found posting key trial details, and his take on the presentation of evidence, on his Facebook wall.  The posts were overall rather innocuous, but it was clear he was ignoring the judge’s admonitions.  And if he had no qualms about ignoring one key instruction, we were concerned he might flagrantly disregard others throughout trial and deliberations.

We notified our clients, who told the judge, and the juror was off the case.

Monitoring seated jurors’ social media is a time commitment that’s easy to push down the priority list during the hectic days of trial.  But staying abreast of your panel’s continued Internet usage really needs to be just as standard as the initial searches.  Even making sure to ask for their Twitter names during voir dire (or asking the judge to do so to avoid looking stalker-ish) can be a strong deterrent to their disregard of Internet use admonitions.  For more advice on monitoring jurors’ Internet presence during trial, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net. 

Mitigating the CSI Effect

There have been many studies on the “CSI Effect,” the effect of criminal dramas (such as CSI, Law and Order, etc.) on jurors’ decision-making process during trial. Television brainwashes jurors to believe there should be hoards of physical evidence, documentation, video footage, photos or some other “smoking gun” when it comes to proving cases.  As we all know, however, this is rarely the case.

The popularity of the fictional shows can elevate expectations to an unrealistic level that is detrimental at trial.  Our national research has shown 82 percent of jurors watch criminal dramas at least occasionally and 36 percent watch weekly.  However, there are several ways to mitigate jurors’ concerns regarding evidence in your case, and we have a few suggestions that will help jurors understand your case and the evidence presentation process.

Having a fresh set of eyes take a look at your case could divulge some of the weaker points susceptible to the “CSI Effect.”  Our focus groups provide an excellent platform to see what jurors want to know more about.  These questions can highlight the necessary education points that you may not see based on your familiarity with the case or at least the subject matter.

When considering expert testimony in a case where you might lack concrete evidence, consider a witness who will testify how uncommon it is to have every minute charted or every move photographed.  In an information-hungry society, we often forget that not everything is recorded – especially if the incident took place years ago.

It is also important to request jury instructions that are clear and do not confuse the jurors into misinterpreting the law.  This is particularly is necessary when explaining the preponderance of evidence standard since jurors – especially avid crime drama-watchers – are more likely to be family with “beyond a reasonable doubt.”  Clearly explaining the plaintiff’s burden will be effective in mitigating those who demand more evidence and proof.

Most importantly, you must adapt to match the demand of the “CSI Effect” rather than fight it.  With so many people watching shows and interpreting them as a likely representation of the courtroom, the expectations are there.  Providing jurors with adequate explanations and anticipating the information they will require will help to squash doubt about lacking CSI-like evidence in reality.

If you need assistance in discovering what parts of your case could fall victim to the CSI Effect, contact Senior Vice Preside Claire Luna at cluna@juryimpact.net or (714) 754-1010.

De-Stressing the Courtroom

You’re driving through an intersection with a green light and suddenly a car rushes in front of you running the red.  Most people would immediately judge this person as reckless with no regard for others, or someone who believes the rules don’t apply to them.  However, if you were in their shoes, it's possible they were rushing a child to the hospital or had some other emergency situation and they believed they could make the light.

At some point, we’re all guilty of this situational bias, also known as fundamental attribution error or FAE.  Described another way, it’s a person’s tendency to place undue emphasis on a person’s internal characteristics – or personality – in a given situation rather than considering alternate external factors.

National Geographic recently wrote about a study by authors from University of Chicago and New York University that found stress exacerbated FAE, making subjects more likely to judge harshly.  National Geographic noted this could come into play in the courtroom where jurors are under stress and forced to make judgments in a new and uncomfortable situation.

We believe that as a result of this stress-induced FAE, jurors could judge your client with a negative bias before all the evidence is even presented.  In order to combat FAE in your case, we suggest mitigating the amount of stress placed upon jurors in a few simple ways.

• Clear, concise explanations – When discussing the details of your case, be as clear as possible so jurors don’t have to spend extra time processing what you mean in order to keep up.
• Simple, organized visuals – As we have discussed in previous Things… articles, featuring clear visuals and simple fonts helps jurors understand what you mean and eliminate potential confusion.
• Respect their time – Part of the stress of jury duty is the time taken away from their other responsibilities.  By explaining things clearly and efficiently, you show the jury their time is valuable. 

We believe humanizing your client and explaining situational factors at play can also mitigate FAE.  Asking a doctor or nurse why they went into the field can help a jury understand their personality better and begin to realize there could be more factors at play rather than judging them on a fundamental level.

If you need assistance creating a clear and concise case message, please contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

Female vs. Male Experts: Who Has the Head Start With the Jury?

Old stereotypes die hard.  No one knows that more than a woman in a male-dominated field – including the law, although that is slowly changing.

We’re sure we’re not the only ones who have noticed male expert witnesses in litigation vastly outnumber female ones.  But is there any real reason for this?  Are there times when juries might receive men better and other times they might prefer women?

That’s the question two researchers – both women, we’d like to note – set out to answer in a recent study published by The Jury Expert, an American Society of Trial Consultants publication.

For better or worse, they found gender stereotypes are alive and well when it comes to how juries see expert witnesses – a conclusion you might want to consider when both selecting and presenting your experts.

For example, these researchers reviewed a previous study that found jurors viewed male experts as better witnesses when the case involved traditionally “masculine” fields such as construction or finance, whereas women were perceived as better witnesses in cases involving “feminine” areas such as children or sexual assault. 

Perhaps not surprisingly, jurors were harshest on witnesses – particularly women – who violated societal expectations of gender-based behavior.  One study found “unlikeable” female witnesses were judged more harshly than “unlikeable” men. 

From our perspective, it is worth considering these findings as you work up and prepare cases for trial.  We’d recommend ensuring male witnesses will come across as authoritative and direct rather than meek, and suggest to female witnesses they should avoid appearing unnecessarily combative (frankly, we believe male witnesses should also strive to be pleasant rather than confrontational).  

It is also worth considering the field in which your expert will be testifying – finding the most-qualified and personable expert available is always the goal, but there may be a disconnect for some jurors if you bring in a man to talk about a topic more associated with women, or vice versa.

Of course, the jurisdiction and make-up of your jury also matter.  A jury in a liberal area or with several younger, well-educated members may appreciate an assertive female witness, whereas it might not fly in a conservative area with a jury comprising older white men.  We’ve monitored trials in the past where the defense successfully appealed to young female jurors by having older female witnesses talk about the challenges they’ve overcome to get where they are.  As with all things in trial, context matters.

We’d like to think society is moving past gender-based stereotypes, but your client is paying you to win a case, not make the world a fairer place.  As long as those stereotypes exist and affect how jurors see witnesses, you’d do well to pay attention to them.

If you’d like our help in preparing a witness appeal to your jury, we’d love the opportunity.  Please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out more about our witness preparation process and how we can help you evaluate how your expert will come across to jurors.

Selling Experts in a Skeptical World

It’s no secret the American public is more skeptical now than ever.  Distrust of institutions – the federal government, media and medical authorities, to name a few – is at an all-time high.

With the public so skeptical of traditional authorities, Internet resources have become a frequent first stop when people are looking for answers – whether the question is something as routine as “Can I ignore my check engine light?” or as potentially life changing as “Do I have cancer?”

Just last week, we were fascinated to read about a new website called CrowdMed that outsources your medical diagnosis to the public.  You submit a description of what’s ailing you, and the site’s “medical detectives” will do the sleuthing to figure out your condition.  The surprising part is CrowdMed’s detectives don’t need to be doctors or nurses, and it brags that it doesn’t care about their formal credentials – all that matters is whether they can figure out the patient’s problem.

In the courtroom, we believe the public’s widespread skepticism has important implications for expert testimony.  In a world where, thanks to the Internet, everyone’s an expert and the influence of traditional authorities is eroding, why should a jury simply accept the word of your highly paid expert?  Why is your Harvard professor’s opinion more valid than that of any schlub who can navigate over to WebMD? 

Perhaps it’s time to rethink what makes a good expert witness.  Although affiliation with a prestigious institution and winning awards are always nice qualities in a witness, they matter less in a world where the public is skeptical of those institutions.  In fact, a nationwide survey we conducted last year revealed that only 6 percent said having a famous employer (such as Harvard or Stanford) was one of their most important factors in how credible they find an expert witness – the same number who chose how many awards the expert has received.

Instead of just trusting the authorities, today’s skeptical jurors want to be convinced that an expert is credible – and nothing speaks to these jurors like experience and clear communication.  In our survey, the number one factor survey respondents said they look for in an expert testimony is years of experience (75 percent), followed closely the ability to explain things in simple terms (71 percent).

From our perspective, these findings should play into both how you choose your experts and how you present them at trial.  In medical cases, it might be better to choose a local doctor who’s been practicing in the community for 30 years and excels at talking to regular people than a big-name university hotshot with no bedside manner.  When presenting your witness at trial, don’t gloss over that person’s experience in favor of chairmanships and accolades – let that witness talk about the thousands of patients he or she has treated and the reasons why he or she enjoys that particular specialty.  And it may even be necessary to “re-train” experienced witnesses on the important of explaining things clearly with a minimum of jargon.

If you’d like our help evaluating your witnesses and helping them appeal to today’s juries, we’d be happy to lend our perspective.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714-754-1010 to find out more about our witness evaluation and witness preparation services.

There’s No Question: Allow Juror Questions

The Boston Globe reported recently that jurors hearing a federal public corruption trial submitted an astounding 281 questions of witnesses through the presiding judge.  Based on that news, the ABA Journal posed a “Question of the Week” to its readers about whether the practice of allowing jurors to submit questions should be permitted.

This ignited a heated and sometimes nasty debate between those in favor and those opposed to the practice.  Our two cents?  In most circumstances, we enthusiastically favor juror questions.  A few reasons why:

• Clarity – In our experience, most juror questions are simply seeking clarity on a confusing or incomplete aspect of a witness’ testimony.  We believe allowing questions helps ensure your witness has gotten his or her point across in a way jurors understand and keeps the jury from deciding a case based on misinformation.
• You can be too close to the case – When you’ve spent months or years working on a case, sometimes you can “lose the forest for the trees” and misjudge what will be important for jurors.  Juror questions act as a safeguard in case you and your witnesses don’t recognize what jurors will find really important and want to know more about.
• The Googling epidemic – Our research has shown repeatedly that jurors think it’s OK to use the Internet to do research about a case they’re hearing, especially if it’s just for educational or clarification purposes.  The problem, of course, is you have no idea what they’ll find.  By answering jurors’ questions during trial, you can head off their impulse to do outside research.
• Questions are valuable intel – You can tell a lot by jurors’ questions – what they’re skeptical about, what they don’t understand and sometimes even which way they’re leaning.  These questions are the only real-time, concrete feedback you can get during a trial, and this information can help you adjust your strategy or shore up weak aspects of your case before it’s too late.

Based on the Globe article and ABA Journal debate, it seems the most common objections to allowing juror questions are that it encourages jurors to become advocates for one side or the other before the they hear all the evidence, and it takes the control of how the case is tried away from the attorneys. 

For the first criticism, we think simple procedural safeguards can prevent inappropriate advocacy.  For example, jurors should submit individual questions only (to avoid jurors discussing the case with each other) and should write their questions down for the judge and attorneys to consider.  That way nothing inappropriate or unduly biasing gets read in front of the jury.

Regarding lawyers controlling how the case is tried, we believe the modest amount of control you will give up by allowing questions is more than compensated for by the significant advantages of knowing what jurors want to hear and supplying them with the facts they need to come to an educated decision.  Just because you came into the trial with a plan and a strategy doesn’t mean it’s written in stone.

From our perspective, one of the great advantages of conducting focus group research before trying a case is it allows you to learn ahead of time what questions a jury might have and proactively answer them before jurors even ask.  If you’d like to learn more about our focus group process, or our online research process for lower-exposure cases, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Answer the Demand – Don’t Attack It

We have long noted in our focus group research that jurors’ awards often skyrocket once they learn the plaintiff’s demand, and it’s not unusual for a juror to award $100,000 in damages prior to hearing the demand and then $5 million afterward.  From our perspective, the old plaintiff lawyers’ adage that “the more you ask for, the more you get” is absolutely true.

Legal scholars call this the “anchoring effect” because it effectively anchors the award to the plaintiff’s demand, and a recent study by researchers at the University of Denver and University of Arizona law schools found the effect to be dramatic.

In the study, mock jurors were presented with identical cases – except one group was presented with a non-economic damages demand of $250,000 and the other was provided a demand of $5 million.  Alarmingly, jurors presented with the higher demand awarded amounts that were 430 to 823 percent higher than those presented with the lower demand – that’s four to eight times higher – even though the facts and presentation of the case were identical.

The bad news is that none of the defense strategies tested – ignoring the demand, countering it with a much lower number or attacking it – erased this anchoring effect.  However, it’s not all doom and gloom, as the study revealed some glimmers of hope for defense lawyers.

First, proffering outrageous demands appeared to hurt the plaintiff’s credibility and chances of winning the case, as jurors who heard the high demand found for the plaintiff about 20 percent less of the time compared to those who heard the more moderate demand.

In terms of what you can control – how you respond to a plaintiff’s excessive demand – countering the demand with a more reasonable amount was significantly more effective than either ignoring or attacking it – and attacking it was easily the worst option.  

Defense attorneys are sometimes concerned that offering an alternative number might seem like an admission of liability, but the study found countering the demand actually led to more wins for the defense.  By contrast, ignoring the plaintiff’s demand reduced the defendant’s success by 6.6 percentage points and attacking it reduced the win rate by 14.7 percentage points.

Moreover, countering the plaintiff’s demand with a more reasonable suggestion of $50,000 reduced the average damages by between 9 percent and 41 percent (depending on the scenario details), confirming our long-held observation that jurors often find a number somewhere between the plaintiff and defense suggestions.  As with liability, attacking the plaintiff’s demand was the worst option, resulting in the highest average award in all scenarios.

Although scholars clearly have more research to do in this area – particularly by looking at real trial outcomes – this study demonstrates that offering a reasonable alternative to the plaintiff’s non-economic demand offers the best chance for success on both liability and damages.  It may be tempting to get on your high horse and attack the plaintiff’s outrageous demand, but the research shows this is not the way to go.

If you’d like to explore how jurors react to a damages claim in your case, we can help with either focus groups or an online study.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out more.

Is Personal Responsibility Dead or Alive? Depends Who You Ask.

Just like buying real estate, evaluating lawsuits is primarily about location, location, location.  As many of our clients know, a trial with the exact same case facts can produce extremely different results depending on the jurisdiction in which it is tried.  Sometimes, just being one mile on the other side of a county line can make an enormous difference regarding the decision to try a case or avoid a jury trial altogether.

During 10 years of jury research we have learned that one of the biggest differences between favorable and problematic jurisdictions is how the jurors view the concept of a plaintiff’s personal responsibility.  In some of the more conservative jurisdictions, a pregnant plaintiff who misses a handful of prenatal appointments becomes the primary focus of criticism, whereas in more plaintiff-friendly venues, a plaintiff who started prenatal care at eight months creates an increased expectation for caregivers to "do more" to ensure a healthy baby is delivered.

Likewise, a medical malpractice case involving a patient who smoked against doctors’ orders and refused to make diet changes can prompt divergent interpretations depending on the makeup of the jury.  After all, in certain jurisdictions where many of your jurors are themselves smokers, don’t count calories and have never heard of CrossFit, they are less likely to be receptive to arguments that the plaintiff’s own health choices led to a poor outcome. 

A more recent example of how perceptions of personal responsibility affect opinions is this ABC News article reporting that a Brooklyn jury just awarded $510,000 to Kevin Jarman, whose ankle was injured during his arrest for shoplifting.

Now, when you just read that article, what was your reaction?  It could probably fit into two general opinions:

1. If Mr. Jarman hadn’t been stealing, he never would have been injured so he shouldn’t blame others for his injury, or
2. Regardless of what Mr. Jarman was doing, the police hurt him and it’s only fair to compensate him.

In the comments sections of various news sources, these competing takes on personal responsibility are on full display (with one side being more strongly represented depending on the news source and its readership, as you can imagine).  Some commenters express their outrage that “crime really does pay,” while others argued out-of-control police departments are the problem and these lawsuits keep them in check. 

The point of all this is that every audience is different and it is always to your benefit to know what kind of audience you’ll be facing, as well as their experiences, outlooks and mindsets, before setting foot in a courtroom.  If you have an upcoming case and want to better understand the worldview of your particular jurisdiction, and how it could affect your case, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.  

Taming of the Juror

Teenagers are notorious for being rebellious and ignoring what authority figures tell them.  There are even online “survival guides” to help parents deal with defiant teenagers.  The problem is teenagers often still defy the rules, no matter what tactics are employed.

In our experience, there are some jurors who will behave just as defiantly as teenagers.  They may not disrupt the courtroom with outbursts or talk back to the judge, but they are likely to disregard the judge’s instructions in pursuit of what they think is right or fair.

This was borne out by a national survey we recently conducted of more than 800 respondents examining perceptions of the courtroom.  The results were alarming, and we found people with pro-plaintiff attitudes answered “yes” or “most fair” consistently to all of the following questions:

• Even if a judge tells you that it shouldn’t, do you believe sympathy for an injured plaintiff might affect how you decide a case?
• If the judge told you specifically not to consider lawyer fees, would you still consider lawyer fees when deciding on the amount?
• Even if you don’t believe the defendant is at fault, would you consider awarding an amount equal to the plaintiff’s medical bills as damages in the case? 
• Even if a judge tells you not to do outside research during trial, would you do it anyway?
• Would you decide a case based on the letter of the law, including the judge’s instructions, or based on whatever you think is most fair?

This correlation indicates that if a juror is prone to ignore the judge’s instructions regarding one aspect of the case, they’re much more likely to disregard the judge’s instructions on something else as well, making them especially worrisome.

One way to mitigate this issue is through voir dire.  When we looked more closely at the data, we were able to identify those who had the strongest tendency to ignore a judge’s instructions across the board, and many of them shared the following characteristics:

• 18-29 years old
• Not registered to vote
• Receives government assistance
• Student
• Democrat
• Single
• Rents rather than owns property

If you would like assistance in how to identify rebellious jurors or fine-tune the “fairness” message you present, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714-754-1010.

Googling Gets the Green Light

Mug shots, unsavory posts, silly “likes” and embarrassing photos – these are all things found during our social media audits of prospective jurors for our cases.  Although we have known social media and Internet searches to be worthwhile for some time, the American Bar Association has finally given the seal of approval to “Google” potential jurors.

The ethics of social media audits have been a gray area in many jurisdictions, since sites such as LinkedIn might notify a user of another person accessing their page – which could be construed as communication with a juror.  However, The American Bar Association has decided such searches are not considered communication unless the searcher “friends,” “follows” or “likes” the juror’s page.

Researching and getting to know your jurors could reveal what subtle ways you might use to connect with jurors during trial, or which arguments to steer clear of for fear of offending one of the panelists.  However, The American Bar Association warns against taking this too far, citing an example of using fishing metaphors during a trial where the jury contains some avid fishermen, since this grays the area between knowing your audience and making jurors feel as though they are being “watched.”

In this day and age of electronic footprints on the web, we recommend as much research as possible without overstepping the lines established by The American Bar Association.  Our team is able to research numerous jurors during the short time between receiving the jury list and choosing the members in the same morning or afternoon.  Finding a juror has a soft spot for cancer awareness in a misdiagnosis trial, extensive knowledge of commercial driver protocol or a bias regarding a particular hospital could mean the difference between a defense or plaintiff verdict.

These audits are also valuable during trial to see if jurors are following orders to refrain from posting or commenting about the trial.  If selection time is so short that quick searches won’t reveal any damning information, further research after the jury is picked could prove helpful to make sure jurors are following instructions not to post about the trial.

If you have an upcoming trial that would benefit from some extra Googling, jury selection or monitoring assistance, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Let Your Witness Make Conversation

People can be quick to judge those who fill their speech with “um” and “well” and “I guess.”  To a listener, such disfluencies have the potential to reduce perceptions of the speaker’s intellect.

However, a recent study published in The Journal of Language and Social Psychology examined transcripts from previous studies and showed those who use filler words such as “like” and “you know” are more conscientious and thoughtful.  The authors of the studies indicated these filler words as used are markers to show the individual’s desire to share or rephrase their opinions to others. 

Although we have found some filler words such as “um” can indicate a witness’ lack of confidence, the idea behind this study is a useful one: certain filler words help a witness come across as more conversational and better able to explain concepts simply. In fact, earlier this year we conducted a national survey of more than 800 jury-eligible participants and asked them to list what characteristics were most important in an expert witness.  Consistent with our previous research, the ability to explain things in simple terms was one of the top traits.  Approximately 64 percent of jurors rated it as one of the top characteristics (second only to years of experience). When a witness explains a key medical procedure, the safety procedure for a bus driver or the science behind traffic patterns, complex technical jargon can get lost on jurors.  Lay jurors appreciate a witness who is able to connect with them on the same level and educate them about complicated information in a simple and conversational way. When we work with doctors or nurses, we ask them to explain complicated procedures the way they would to a patient, and this helps them adapt their language to the audience.  However, people in other industries don’t have this experience and can have a difficult time translating their advanced level of knowledge, so preparation is key before deposition or courtroom testimony. If you have a case involving complex concepts and would like help finding the best way to educate jurors about them, or help prepping a witness to explain things more conversationally, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.

First Step to Persuading Jurors: Simplify

Recent news out of California shows it might be impossible to simplify things too much for a jury.  A Fresno jury’s confusion about how to fill out the verdict form — they acquitted an accused burglar instead of indicating they were deadlocked as they intended — meant the man was freed from custody.  A few hours later, he was killed in a fight at a relative’s house.

Some might be inclined to dismiss these jurors as “stupid” and consider their verdict form dilemma a one-off.  However, this attitude ignores the reality that it doesn’t matter why the jury didn’t know how to fill out the form (and along the same lines, why jurors don’t understand concepts you may find basic such as agency or negligence).  All that matters is that for these jurors, this was their reality, and neither the attorneys nor the judge simplified the verdict form in a way that made sense to them.

Our experience has taught us that the side with the simpler story has the advantage.  Put another way, as one of our clients told us recently, “When you’re explaining, you’re losing.”

The point is that in this information-heavy world, where infinite data is available at the touch of a smartphone screen, delivering an effective story to a jury means providing the simplest package possible.  That package has to include discussion of the verdict form so jurors know what to expect when they start deliberating.

Concepts such as negligence, cause and agency can consume entire chapters in a law school textbook, but put these words on a verdict form and we expect jurors to understand them with a two-paragraph instruction.  Countless times we have interviewed jurors after a trial and heard, “I still don’t really know what negligence is.”

We often tell our attorney clients they know their cases too well, potentially producing false assumptions about what their jurors should, or will, understand.  This can also result in bad assumptions regarding jurors’ ability to navigate the verdict form, and attempts to educate your jury should always include an explanation of the verdict form and the concepts it contains. 

If you would like to talk with us about how best to explain some of the key concepts in one of your upcoming cases, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Conspiracy Theories More Common Than You Might Think

We’ve written before about jurors’ tendency to invent and embrace conspiracy theories during the course of a lawsuit, and those of our readers who have done focus groups with us have likely seen that dynamic in action.

It turns about that tendency – particularly as it relates to medical conspiracy theories – is even more pronounced than we thought.  A new study by a University of Chicago political scientist published in March in the journal JAMA Internal Medicine found that half of Americans – and likely half of your jury panel – believe at least one popular medical conspiracy theory.

Among the highlights, the study found more than one-third of respondents believe the FDA is keeping natural cancer cures off the market because of pressure from drug companies, 20 percent think cellphones cause cancer but the government is ignoring it to appease corporations, and 20 percent believe doctors and the government know vaccines cause autism but continue using them anyway.

It takes no great leap of imagination to conclude jurors holding these views might be quicker to assume doctors, hospitals or corporations being sued would engage in a cover-up.  The challenge, of course, is to identify these potential jurors during voir dire – before they have a chance to poison your jury.

The study found people who embraced conspiracy theories tended to be less educated, poorer and members of minority groups.  But a deeper look reveals some interesting trends that could give you a leg up during voir dire.

For example, conspiracy theorists were less likely to use a primary care doctor for medical advice and instead relied on the Internet and celebrity doctors such as Dr. Mehmet Oz.  In fact, more than 80 percent of people who look to celebrity doctors for medical advice believed at least one of the conspiracy theories.  Conspiracy believers were also more likely to buy organic foods, take herbal supplements and avoid vaccines. 

Interestingly, political liberals and conservatives embraced conspiracies in almost equal numbers (with conservatives being slightly more conspiracy-minded), so don’t rely on political ideology alone during jury selection.

What ties this all together is a deep distrust of institutions and authority, whether it be government or the health care industry.  From our perspective, these are the types of issues you should probe during voir dire: Do you think hospitals put profits before people?  Do you trust your doctor to give you unbiased advice, or do you look for advice elsewhere?  Do you think vaccines cause autism or cell phones cause cancer?

If you have a case where conspiracy might rear its head, it might be worth it to see how this plays out in focus groups.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714-754-1010 to find out how we can help.

Separating Jurors’ Desire to Help From Their Verdict

Juror sympathy is a force to be reckoned with, despite judges' instructions telling them to separate emotion from verdict, as we have explored before in this space.  But the more important question to us is how a plaintiff might be able to secure a verdict based on sympathy alone.

Consider some of our recent focus group cases, when staunchly defense-minded jurors indicated willingness to change their verdict once they learned their inclinations meant the plaintiff would not get any money.  Again, these were participants who not only believed there was no breach in the standard of care, but were also convinced in most cases of an alternate, more logical cause for the plaintiff’s injuries than the alleged negligence.  Yet they were willing to put these convictions aside in the name of compensating the plaintiff.

In a recent national survey we conducted of more than 800 potential jurors throughout the United States, one-fifth of the participants – 20.2 percent – stated they would be more likely to side with the plaintiff if they knew a vote for the defendant meant the plaintiff wouldn’t get any money.  They believed this to be true “even if a seriously injured plaintiff hadn’t convinced you to support their case.”

In looking more closely at those 20.2 percent, a few commonalities stood out.  Those most likely to side with the plaintiff to ensure they would get money were young and “untethered.”  For example, 18- to 29-year-olds, those who rent, single people and the unemployed were all almost twice as likely to say they would be more likely to side with the plaintiff.  Surprising to us was the fact that those who currently serve in the military were nearly three times as likely to vote for the plaintiff in this scenario.

We have had some success in shifting this mindset by focusing jurors on one of the concepts they hold most dear: fairness.  By asking jurors if it is fair to find against a defendant they truly do not feel did anything wrong, they oftentimes conclude on their own that although they would like to find a way to give the plaintiff money, it would not be just to do so.

If you have a case where you’re concerned jurors’ desire to help the plaintiff may prompt them to ignore what they truly believe about liability, contact Jury Impact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.  We would love to talk with you.

* * *

Are any of you planning to attend the 2014 DRI Trucking Law Seminar in Las Vegas this month?  If so, please make sure to say hi to Claire, who will be leading a presentation on working with challenging witnesses. 

Testimony: How You Say It Is as Important as What You Say

When we work with witnesses during deposition or trial prep sessions, a crucial aspect of this process is videotaping the witness answering tough questions and playing back the footage for them.  If you’re one of those people who dislike the sound of their own voice, then you know how uncomfortable this can be. 

However, we believe this exercise is vitally important because it gives witnesses an idea of what a jury would see and what adjustments (in many cases, immediate ones) can be made to better appeal to those jurors.  Especially during trials where both sides haven’t given their presentations the “Twitter treatment” to simplify their stories, jurors can get bored and focus their attention elsewhere – including the clothing, demeanor and attitudes of witnesses and attorneys.

We recently monitored a trial after which we interviewed several jurors and asked them about the drivers behind the unanimous defense verdict.  In addition to aspects of the case they believed were stronger for the defendants, they also mentioned the key witness for the defense – a healthcare provider accused of skipping safety steps during a heart catheterization procedure – was a particularly strong witness.

Although this witness was on the stand for more than four hours answering a slew of tough questions, the foreperson condensed this witness’s performance down to, “She answered directly and without hesitation – that is not the type of person to veer from her routine.”  

After showing a witness' video deposition to focus group jurors and soliciting their feedback, we also find it useful to show the witness later clips of the participants discussing their observations.  Seeing objective strangers discuss a witness’ demeanor, rather than jury consultants and the legal team sitting right in front of them, can lend a certain third-party credibility to the feedback. 

We recommend conducting preparation sessions with all witnesses – not just the “challenging” ones – because as we have learned from jurors there are fine lines between “direct” and “rehearsed,” “confident” and “arrogant,” and “knowledgeable” and “defensive” – and sometimes a little outside perspective on these nuanced differences can make a dramatic difference in demeanor, attitude and credibility.  If you have an upcoming case that could benefit from witness preparation, or you would like to garner juror feedback on specific witnesses, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Give Your Story the Twitter Treatment

It’s no surprise audience attention spans are getting progressively shorter, but you may be interested to learn just how short they have become.  According to the U.S. National Library of Medicine, the average attention span in the year 2000 was 12 seconds – an already dismal figure – but by 2013 our ability to stay focused had dropped to a measly eight seconds. 

In a world where many people now get their news from Twitter in 140 characters or less, it makes sense why so many have a tough time staying engaged for long periods of time.  As technological advancements continue to create more distractions in our daily lives and feed the growing “instant-gratification” mindset - if you’ve ever binge-watched an entire season of House of Cards or Breaking Bad over a weekend, then you’ve become a victim as well - we expect this number to drop even further.

When it comes to defending lawsuits, these shrinking attention spans highlight the importance of developing themes and language that appeal to how today’s jurors process information, and presenting it in ways that get through to the easily distracted.

The simplest way to do that is put your messages, themes, explanations and opening and closing statements on a diet.  No matter how many moving parts a case has, there is no reason opening arguments should take 2.5 hours.  Our exit interviews reveal that many jurors view these kinds of drawn-out presentations, as well as long, repetitive witness examinations, as disrespectful of their time.  Whichever side has the simpler, shorter story always has the advantage and looks better in the jury’s eyes – so make sure that’s you.

We recently monitored a medical malpractice trial where opening statements took less than 30 minutes – for both sides.  The plaintiff testified, both direct and cross, in just 18 minutes.  Although not every case can be presented so quickly and not every trial can proceed at such an accelerated pace, we firmly believe the goal should always be to make things as short as possible.  A good rule of thumb is:  If you can’t fit your explanation on a Post-It note, then you can’t explain it adequately.

In response to that we often hear, “But this case is too complex to be reduced to a Twitter-friendly format.”  If that truly is the case, and trial research and even inter-office discussions are unable to reveal ways to explain each side’s position simply and concisely, then you should seriously consider that when deciding whether to take a case to trial.

And this “shorter-is-better” philosophy doesn’t start and end with juries – mediators, judges, committees and claims managers are people too, and are highly receptive to short, simple and easily digestible explanations, theories and messages.

Not every case is simple, but all cases can be simplified.  If you have a case that could benefit from some simplification and juror feedback, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Younger Jurors Have Trust Issues

Trial attorneys all have their own beliefs about who make the best jurors, and who make the absolute worst.  Many attorneys tell us they actively avoid younger jurors for a variety of reasons, including shorter attention spans, a lack of life experience and perspective, unrealistic expectations, or simply the attorney’s experience and gut instincts.  

Whatever the reasons for avoiding younger jurors, we have been crunching a lot of numbers lately and have some hard numbers to back up those intuitions and gut feelings.  First, a recent national poll of 18- to 29-year-old Americans by Harvard’s Institute of Politics revealed these younger folks’ trust in public institutions is at a five-year low, and cynicism related to the political process is at an all-time high.

The tendency of younger people to be more cynical, critical and suspicious of public institutions – which applies to most large entities including education, healthcare, health insurance and the judicial system – is what we are seeing in our own polling.  In fact, in a recent national Jury Impact poll of 834 Americans, younger jury-eligible respondents were most likely to believe plaintiffs “rarely or never” inflate their damages amounts, believe a family member of the plaintiff would be a credible witness, and to change their vote for the plaintiff if they learned they would receive no money – even if the plaintiff failed to convince them of their case.

Most troubling, those 29 years old and younger were 2.55 times more likely to conduct outside Internet research on a case during trial – even if a judge specifically instructed them not to.  Furthermore, younger respondents were the most likely to admit they would ignore a judge’s instructions not to consider lawyer’s fees when calculating damages, and not to allow sympathy to affect how they decide a case. 

So, not only are younger jurors more likely to be hostile to defendants who classify as “large institutions,” they are also less likely to respect the legal process and instructions.

Although these numbers are daunting, because there is no way to guarantee younger people won’t get seated on your jury, it is important to understand their unique mindsets when evaluating cases and developing themes and messages.  Using research to gauge the perceptions of jurors with shorter attention spans can help you develop a more concise overall message that appeals to those accustomed to instantaneously Googling the answer to any question the world has ever asked in mere seconds.  Furthermore, if you are able get through to the most cynical, skeptical audience members, then you can have confidence your approach will also appeal to the rest of your jury panel. 

As the attention spans of all generations get shorter (if you’ve ever surfed the web on your smartphone or tablet while fast-forwarding through commercials on your DVR, then you have firsthand knowledge of this trend), it is even more important to present case facts, themes and arguments in a clear, concise manner.  If you have an upcoming case that could benefit from an outside perspective – from jurors of all ages and backgrounds – please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Not All Plaintiffs Created Equal

Not all plaintiffs are on a level playing field when it comes to juror perceptions.  Certain plaintiffs – babies, children, the elderly – are just more likely to garner sympathy and potentially high damages.  During a recent nationwide survey of 864 potential jurors, we learned nearly 40 percent would award a larger amount to a poor plaintiff than a rich one.

As we know from interviewing thousands of jurors around the country, this is something jurors notice.  We still remember the jurors we talked to after a defense verdict in a birth-injury case, all of whom noted the plaintiff’s father owned an expansive wardrobe of Ralph Lauren shirts – enough to last him through a four-week trial without a single repeat.  “I was tallying those little horses every day,” one juror told us.  “Pink, blue, white, yellow, he had it all, and it’s clear these people didn’t really need more money.”

Plaintiff poverty can work the opposite way, potentially producing higher awards because the jurors want to help this person or family.  That statistic we cited above shows between one-third and one-half of your jury pool might see bigger dollar signs when considering a financially deprived plaintiff.

Looking more closely at those more likely to say yes revealed some interesting consistencies – and people to look out for during jury selection.  Those most likely to give a larger award to a poor plaintiff than a rich one shared the following characteristics:

• Asian  (1.7 times more likely)
• Student  (1.6 times more likely)
• Registered Democrat (1.5 times more likely)
• Currently serve in military (1.4 times more likely)
• From 18 to 29 years old (1.3 times more likely)
• Part-time occupation (1.3 times more likely)
• Single (1.3 times more likely)
• Annual household income less than $25,000 (1.2 times more likely)

If you would like to talk more about the plaintiff in one of your upcoming cases and whether their circumstances might prompt jurors to give a larger award, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.