The Winning Game Changer in Your Case

The Super Bowl is this weekend, and football teams and fans have seen some unexpected plays that have changed whether their teams made it into the playoffs.  Interceptions, long field-goal kicks and last-minute touchdowns have all put fans and players on the edge of their seat this season.  Even college football saw a miracle catch in November when Ricardo Louis of the University of Auburn caught a Hail Mary, 73-yard pass that bounced off a defender, and raced to the end zone for a 43-38 victory over Georgia State.

A single play can change the course of a game and give momentum to either side.  The same could be said for your case.  Oftentimes, there is one piece of evidence one side is holding onto that could change the way jurors look at a case.

The plaintiff may show a crucial note in the medical records that caregivers may have overlooked, or a company supervisor’s Facebook post that demonstrates a little too much affection for the physical attributes of the women who work for him.  Jurors could easily see these pieces of evidence as red flags that an injury could have been prevented or someone should have been aware of ongoing harassment.

If you are going up against a plaintiff’s game changer, we recommend emphasizing actions your client did take with the information they had at the time.  Educate jurors about the thorough investigation behind the complaint or the timeline of medical decisions caregivers made in response to a patient’s symptoms, despite a missing note in the medical records.  This will help establish a pattern of reasonable actions, mitigating the “red flag” perception.  And with the other example, note that this supervisor’s Facebook postings only became a matter of record after a lawsuit was filed, and none of his colleagues or supervisors were aware he treated women poorly.

However, there is also the strong possibility that what you believe is a game changer, jurors will care little about.  That’s why focus group research can be so important in identifying what jurors tell us are the pieces of information that stand out.  For example, participants in a recent focus group completely disregarded one piece of information we had predicted would be a key to the case – and then turned another fact we had previously assumed would have only minor impact into the defense’s best alternate causation story.

If you have a case involving some potential game changers and want our perspective on how jurors will evaluate them, please contact Senior Vice President Claire Luna at 714-754-1010 or cluna@juryimpact.net.

Redefining the American Dream

Last week The Onion published a satirical article suggesting the new “American Dream” is a substantial out-of-court settlement.  Funny?  Yes.  Timely?  Sure, although Martin Luther King Jr. probably wouldn’t have been happy about this development.  But true?  Absolutely – and more so than you might realize.

Last year, in our national survey of more than 1,200 jury-eligible respondents, six percent of Americans admitted they “actively look for opportunities in their daily lives to file a lawsuit.”  While not a particularly riveting number on its own (we actually expected it to be higher, given the feedback gleaned during some of our focus group research), once we dug deeper into the data we found some demographic groups are much more inclined to look at a slip-and-fall or a scalding coffee spill as the key to a big payout and thus an easier life.

Breaking down the demographics showed us those most likely to be on the lookout for lawsuit opportunities in their daily lives were:

• Male (10 percent agreed)
• Have children at home (11 percent)
• Live in an urban versus suburban or rural area (13 percent)
• Hispanic (14 percent), followed by Asian and African-American respondents at 9 percent each
• Younger than 40 (15 percent)
• Currently serve in the military (an astounding 44 percent)

We also noted those who agreed with this question were also much more likely to display plaintiff-leaning tendencies in their responses to other questions in this survey, such as believing a hospital is responsible for any negative outcomes under its roof – regardless of whether there was negligence involved.  Adding this question to jury questionnaires or verbal voir dire can thus be a helpful tool to quickly identify the most plaintiff-oriented jurors in your venire, as well as those most comfortable awarding money even if they aren’t convinced the defendants did anything wrong.

This analysis also demonstrates our ability to mine the data we collect and identify trends that may be useful to you as you analyze the jury pool for an upcoming case.  If you’d like to talk with us about our observations and research findings for a specific area of the country or about a specific issue, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Dr. Google: Jurors' Choice for a Second Opinion

A longstanding juror complaint we have encountered during years of focus group and trial research is that doctors simply “don’t spend enough time” with patients to discuss diagnoses, options and procedures.  Not surprisingly, through our recent healthcare survey polling nearly 800 respondents nationwide, we discovered a strong majority of Americans are increasingly relying on the Internet to supplement their conversations with healthcare providers.

More than three-quarters of respondents indicated they use the Internet to research their condition after talking with a caregiver, and the same number indicated they have looked online to “self-diagnose” their symptoms before going to the doctor. 

Interestingly, of those who said they research their condition after talking to a doctor or nurse, 34% said they do this “every time.”

As doctor visits and trips to the hospital get more expensive, we expect increased use of Web sites such as Web MD and Wikipedia to research health conditions.  However, this Internet sleuthing is likely to create even more medical misinformation among your jury pool.  Anyone who has typed “headache, runny nose” into Web MD and diagnosed themselves with the Ebola virus can attest to how access to such a wealth of information can contribute to confusion regarding certain afflictions and the appropriate treatment.

In a trial setting, this increasing reliance on the Internet underscores the importance of using credible expert witnesses who can explain concepts in a simple manner.  As other surveys have shown, most jurors rank an expert’s ability to educate in an understandable way far above other attributes many assumed were the most persuasive to jurors.

The increasing tendency to self-diagnose due to perceptions of doctors being “rushed” also highlights how crucial it is to emphasize the time your caregivers take to not only diagnose an issue, but explain findings one-on-one to the patient and fully inform them of the aspects of various options and treatments.

Although patients seeking out new ways to educate themselves can be a positive trend in some respects, the human touch will always will trump a monitor and keyboard – and it is in your best interests to highlight face-to-face measures taken by doctors and nurses whenever possible.  Even in cases where documentation of caregiver/patient discussions is lacking or the consent form is vague, it can be helpful to discuss with caregivers on the witness stand their standard practice, caregiver philosophy and reasons why they believe patient communication is crucial to their practice.

If you would like to discuss any of our findings or suggest a topic for future surveys, please call us at 714.754.1010