Jurors Likely to Tack On Additional Fees

If you’ve ever purchased a car or booked a hotel room, then you’re familiar with the unfortunate fact that the initial price can be quite different than the actual price you pay.  Once you factor in taxes, fees and extras, that rock-bottom price you found after so much diligent research suddenly balloons.

The same thing can happen during trial, in that jurors are often tempted to add “extras” to their awards – above and beyond what the plaintiff asked for or what the judge instructed.  During focus groups, jurors often express a desire to award additional money for “lawyer fees” based on the belief the plaintiff attorneys take a big bite out of any award, which could conceivably take away from the money they believe the plaintiffs are entitled to.

To put some hard numbers to our observations, we recently conducted a national survey of more than 800 respondents to explore the kind of “additional fees” jurors would include when awarding damages.

We asked jurors the following questions:

• “If you were on a jury and decided a plaintiff deserved money, would you consider lawyer fees when deciding on the amount?”
• “When deciding how much to award an injured plaintiff, might you want to award more than they asked for to make sure they are taken care of in the future?”
• “Would you want to add interest to an award amount, anticipating that it might take a while for the plaintiff to get paid or for some other reason such as future inflation?”

For all three questions, more than half of the respondents answered “yes.”  Specifically, 66.5 percent said they would consider attorney fees, 61.2 percent would be tempted to award more money to ensure the plaintiff is “taken care of” and 52.6 percent would add interest to their awards. 

The most troubling finding of the survey was that among those who would consider lawyer fees when calculating an award, 47.1 percent admitted they would still consider lawyer fees even if a judge told them not to.  

Jurors’ disturbing willingness to sometimes ignore a judge’s instructions further emphasize the importance of presenting a concise, credible and compelling story to convince jurors to side with your version of events – thereby avoiding the damages phase in the first place.

If you are interested in better understanding your specific jury pool and the strengths and weaknesses of a case, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Putting a Gag on Googling During Trial

Whether it’s the 2002 winner of the Super Bowl, the number of Academy Awards Meryl Streep has won or what poutine is, our smartphones have become the go-to tool to settle conversational debates or look up unknown terms.  After all, easy access to knowledge is tempting – even when you know it might lead down a Wikipedia rabbithole or it might be a tad rude at the dinner table.   

However, this same reflex can become a major issue in the courtroom when the Internet’s unlimited information is a lure for jurors wanting to know more about an issue.  We in the legal profession know all the evidence during a trial is supposed to come from witnesses and exhibits, but jurors often don’t realize the reasons for telling them not to engage in outside research, or the ramifications if they find out something that could cause a mistrial.

In fact, an eye-opening 62 percent of respondents during one of our recent nationwide surveys said they would be inclined to do outside research about aspects of a case they want to understand better.  Even more alarming – 18 percent said they would do this research even if a judge explicitly told them not to.

This desire to “know more” among today’s empowered jurors means educating them about the issues in your case is more important than ever.  If you provide jurors an adequate base of knowledge with which to evaluate the case, they’ll be less likely to conduct their own discovery during trial.  We also believe this is one of the best reasons to do focus group research before trial – by better understanding what issues jurors find confusing and which require clarification, you can anticipate their needs and present your case as clearly as possible.

As we advise our clients all the time, it’s likely you know your case too well.  Jurors don’t have that same context, and if they are not provided some of what they consider the “basics” in the courtroom, they may look elsewhere for it.  By defining terms in the way that is most helpful to your trial story, you’ll gain an advantage and ideally circumvent the juror temptation to Google that information instead.

If you’d like to discuss potential juror education and misconception issues for an upcoming case, we can help you figure out the best strategy.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Oh, and for the record?  The answers to the questions posed in the first paragraph are the New England Patriots, three (out of 18 nominations) and a Canadian dish of French fries topped with a gravy-like sauce and cheese curds.

Navigating the Perils of Juror Sympathy

The impact is undeniable.  An adorable little girl in a wheelchair, gurgling as her mother feeds her through a tube.  A grown man, formerly at the top of his career, now communicating only with gibberish.  A woman riddled with pressure ulcers confined forever to a bed, unable to do anything but stare at the ceiling while others tend to her needs.

These are the types of sympathetic plaintiffs we often encounter in our work, and even when jurors adamantly deny that sympathy will affect their verdicts, we know that oftentimes it is impossible for jurors to separate feelings from fact.

In a national survey we conducted last week of more than 800 respondents, 46 percent indicated that even if a judge tells them it shouldn’t, sympathy for an injured plaintiff would affect their decision on a case.  This finding wasn’t a surprise to us – in fact, we were just surprised the number was so low.  What was interesting to us was what emerged when we dug deeper, to see what kinds of demographics correlated with these sympathetic feelings.

We learned those most likely to say they would disregard jury instructions and let sympathy shape their verdict had one or more of the following traits:

• Student
• Works in hotel or restaurant
• State or government employee
• Hispanic/Latino
• Younger than 30
• Not registered for any political party or registered Democrat

Perhaps some or all of these demographics match up with your own instincts based on decades of jury selection.  Perhaps this is new information.  Either way, we believe having the data to back up assumptions is extremely helpful during voir dire and can help guide you in the right direction when it comes to making a quick call about which jurors to strike.

If you would like to learn more about the kinds of statistics we have in our database, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Misconception: The Court System Weeds out Meritless Lawsuits

During our decade-plus of litigation research, we have noted a longstanding misconception among jurors that if a lawsuit makes it to trial, then the plaintiff’s case must have some merit.  In fact, our own polling of jurors nationwide showed an overwhelming 78 percent expressed this perception.

This misconception is also fueled by the widespread belief there is some “mechanism” that weeds out junk or meritless lawsuits from the system.  Many people are generally aware court systems are overloaded and municipalities have limited financial resources, and assume the courts work tirelessly to eliminate warrantless matters from the docket.

Further compounding perceptions that the plaintiff’s side automatically has some credibility is the fact so few lawsuits are actually decided in a courtroom.  In fact, a 2013 study conducted by the Association of Trial Lawyers of America revealed that only two percent of tort lawsuits ever make it trial annually.

Again, these kinds of statistics bolster the belief that if a case is one of the few that has “made it this far,” and hasn’t been thrown out or settled by now, it must automatically have some legitimacy.

As you can imagine, this misconception can put the defense team at a significant disadvantage.  So, rather than running from this major misconception, or hoping your jury panel is one of the rare ones that doesn’t feel that way, you might be better off acknowledging the topic during voir dire.  Not only can it help to identify jurors who are leaning toward the plaintiff before hearing a word from either side, it also allows jurors to consider alternative reasons why they are all sitting in the jury box, including unrealistic plaintiff demands, the possibility the wrong party is being sued or even the firm belief the defendants acted reasonably.

If you would like to discuss other issues that could benefit from some “priming” during voir dire, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.

Off-Label Drug Use Can Be Off-Putting to Jurors

We encounter a surprising number of medical malpractice lawsuits involving off-label use of a drug – to treat something other than for what the FDA approved – even if this isn’t the primary focus of the case.  And more often than not, at least a couple of focus group jurors attack the off-label use as “experimental” or “illegal.”

Plaintiff attorneys are savvy to this perception, and they often throw in an off-label allegation to inflame the jury and make them think the defendant caregiver was engaging in an unethical practice far outside the realm of acceptable medicine.

You and I know this isn’t the truth, but how do you convince jurors off-label isn’t synonymous with malpractice?

The key – as with so many things – is education, and through the years we’ve developed a multi-pronged education strategy to help normalize off-label use:

• Off-label use is extremely common.  The numbers are hard to pin down, but as many as half of all prescriptions written in the U.S. are for off-label uses, and the practice is a vital part of mainstream medicine.  We’ve found it’s helpful to educate jurors about common, well-known off-label drugs uses, such as the antidepressant Wellbutrin to help with smoking cessation.  By pointing to common examples most people have heard of, off-label prescriptions seem a little less out of the ordinary.
• It is not illegal.  There is no law prohibiting doctors from prescribing drugs for off-label uses.  The FDA regulates the sale, labeling and marketing of medications, not the practice of medicine.  No one wants a bunch of government bureaucrats telling doctors how to care for patients.​
• Unapproved does not mean dangerous or ineffective.  The FDA has approved these drugs for some purpose, so all of them have been through clinical trials to determine the side effects are acceptable.  The fact a drug is unapproved for a certain use usually just means the manufacturer did not think it was economically viable to go through the long, expensive approval process for another use since doctors are free to prescribe it for that anyway.
• Off-label use is not experimental.  Experiments are testing to see if a drug has any benefit.  In off-label use, the doctor knows through the medical literature and his own experience there is a benefit and is doing what he thinks will be most effective for the patient.
• It leads to advances in medicine.  Doctors discovering new uses for existing drugs is one of the major ways medical treatments advance.  They don’t do this by experimenting; rather, they prescribe the drug for an approved use and notice an unexpected side benefit, so begin prescribing it for that as well.  Often, off-label uses eventually become approved by the FDA and come to define the standard of care for an illness.

Of course, this broad-brush strategy must be tailored to the facts of each individual case.  If you have a case involving off-label drug use and want to understand more about juror perceptions, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net to find out how we can help.