What Kind of Story Does Your Documentation Tell?

We often work with hospital nursing and risk managers eager for tips about how to convey to employees the importance of documentation.  Sometimes the old maxim, “If it isn’t documented, it didn’t happen” doesn’t fully resonate with caregivers until they're suddenly on the wrong side of an overzealous plaintiff’s attorney or a suspicious group of jurors.

We encourage caregivers to think of the documentation as “the story” of the patient’s care – and, equally, the story of your care of the patient.  Should someone months or years later want to hear that story, all the necessary pieces should be there in the medical record.

The question to put to caregivers is, “What kind of story do you want to tell?”

Medical records with gaps of several hours where nothing is documented can imply nothing happened and there was no care provided.  But jurors should understand that even during relatively uneventful periods in a patient’s care, things are happening – vital signs are being taken, drugs given, therapies provided, doctors consulted and family members updated.

Documenting even seemingly routine events – such as a nurse sticking her head into a patient’s room to check in – tells the story of an attentive caregiver paying close attention to the patient.  This documentation need not always be lengthy, detailed or time-consuming; sometimes noting a time and adding a few words are enough to fill in the blanks in the story and bolster a trial timeline.

Some may think of this type of practice as “defensive documentation” – and maybe it is – but this is the world we live in.  If each patient’s medical record is a story, then failing to document the “routine” and the “minor” is like tearing out pages – and leaving the real story open to interpretation.

If you have a tricky case involving incomplete documentation, or would like to discuss how we can present to your group on this subject, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.

Body Language: When Every Juror’s An Expert

We’ve written before in this space about how jurors’ experiences watching television shows such as Law and Order and CSI affect their expectations about everything from DNA testing to courtroom procedure.  It’s a dangerous phenomenon that makes jurors feel like they’re experts in how things should and shouldn’t work in a legal case.

We’ve recently noticed another less-than-helpful impact of jurors’ experience with these shows – the tendency to think they’re experts on body language and can “tell” when a witness is lying.

In a recent focus group, one juror watched two minutes of deposition video and proclaimed the witness a liar, saying:  “I’ve watched a lot of CSIs, and when you’re talking, you should look at the camera.”  During another recent session, a juror explained his low credibility rating for a witness: “He scratched his nose, and that’s indicative of lying.”

Or, you know, his nose itched.

Some people take this supposed ability to “read” body language too far, but there is no denying a person’s use of gestures and mannerisms affects whether they come across as credible.  A recent study by psychologists at Northeastern University, MIT and Cornell found the frequent use of hand touching, face touching, crossing arms and leaning away – in combination – made people seem less trustworthy to their peers.  Even a robot that engaged in these cues was judged as less trustworthy than a robot that did not.  (Read about the study here.)

That’s why a significant part of our witness preparation process focuses on non-verbal communication – we know appearing honest and comfortable is as important as what the witness says.  Although we don’t place too much faith in any one gesture – such as equating scratching your nose with lying – we strive to eliminate distracting mannerisms and help witnesses come across as poised, forthcoming and confident.

We’ve prepped hundreds of witnesses – from parking lot attendants to CEOs – for deposition and trial.  If you’ve got a witness you think could use help, we’d encourage you to consider a preparation session before he or she commits a bad performance on videotape that can be shown to trial jurors.  Please contact us at cluna@juryimpact.net or 714-754-1010 to learn more about how we can help.

PowerPoint Perils and Pointers

Jury Impact is occasionally asked to speak at events and conferences to discuss our experiences, emerging trends and tips for effective trial and mediation strategy.  We pride ourselves on our concise, informative – and, most of all, interesting – presentations.

However, anyone who has ever attended a trial lasting multiple weeks, a large industry conference or even a weekly staff meeting knows not all presentations are created equal.  If you have ever instinctually cringed at the very words “PowerPoint” – suspecting a longwinded, text-heavy, monotonous slide show was coming up – then you understand the hesitancy some trial teams have when it comes to using presentation software and digital projectors.

So is it best to just avoid using PowerPoint to avoid the general loathing of “slide shows?”  Not at all.  In fact, we’ve learned jurors actually expect this technology in the courtroom, and we believe it’s an essential component of storytelling.

In a previous “Things…” article we mentioned a trial where plaintiff’s counsel, in an attempt to seem more “down home” and make the defense team seem like city slickers with fancy, big-budget tech gear, relied on archaic overhead transparencies and a disorganized pile of poster boards to present their theory.  During exit interviews, jurors (most of whom owned “fancy” touchscreen smartphones) were shocked by the lack of technology, and said the defense team’s use of programs such as TrialMax and the ability to find, display and enlarge records, by contrast, seemed “forthcoming” and demonstrated they had “nothing to hide.”

When the bulk of the U.S. population has Internet access and many access it through smartphones, we have found there is no advantage to scaling back your use of technology to avoid seeming “intimidating.”

In fact, research has shown that not only do jurors appreciate when PowerPoint and other presentation programs are utilized, their verdicts favor the use of technology as well.  This study revealed that when the plaintiff used PowerPoint and the defense did not, jurors tended to favor the plaintiff, and when the defense used it but the plaintiff did not, the jury favored the defense.  However, when both sides used a PowerPoint presentation, the playing field evened out and this was not a primary factor in decision-making.  

So, what’s the solution?  We’ve found the key is treating programs such as PowerPoint and TrialMax as the side dish to your main course – you want your arguments and evidence to still be the primary focal point, and allow the slide presentation to enhance, and reinforce, what the jury sees and hears.

• After monitoring many trials, we’ve had the chance to see what works and what doesn’t.  Some tips: Keep the text on each slide as short as possible (one-line bullet points, for example).
• Consider quality over quantity.  After sitting (and slouching, and dozing) through multiple 80-plus-slide presentations during opening statements, we have found 30 to 35 slides is the maximum to maintain juror interest.
• Use clear fonts without frilly edges (something like Arial or Helvetica is easy to see at a distance).
• Make sure at least two or three other people edit your slides – even a couple of typos can be distracting and erode your credibility.
• Skip the “funny” clip art and animations, and save them for snarky office kitchen notes.

If you would like assistance in creating a captivating, succinct trial presentation or would like to test the effectiveness of audiovisuals on a sample jury prior to trial, please email Senior Vice President Claire Luna at cluna@juryimpact.net or call 714.754.1010.