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.