Why Venue Matters

There are obviously many factors that go into evaluating a case and deciding whether to settle, battle it out at mediation, or go to trial – and how to identify and present the strongest arguments – but one of the most important aspects is trial venue.  We have found that no matter how good the science, documentation or the witnesses, sometimes the jurisdiction, combined with the type of lawsuit, can prevent jurors from viewing the case fairly and making decisions based solely on the evidence. 

This, of course, is the reason we fly on a weekly basis across the country to conduct research: Juror perspectives, life experiences, values and worldviews vary widely from state to state, county to county, city to city, and even neighborhood to neighborhood, and it is important to talk to members of the jury pool and understand how their unique viewpoints can shape their views on a case and affect defensibility.

For example, we do a lot of research in South Florida, and have noticed a widespread predisposition among residents that other drivers are “horrendous” and “god awful.”  (If you have ever driven the I-95 near Miami, you certainly understand this is not a radical opinion.)  However, when evaluating a case involving an auto accident, you can see how these gravely negative perceptions of the driving population could significantly affect how jurors view the case and the credibility of witnesses. 

In another example, certain areas around the country have become notorious for prescription drug abuse, and local news programs and articles frequently focus on this issue.  As you can imagine, that news coverage, in addition to personal experience with friends and family members struggling with pain pill addiction, can feed opinions among the local jury pool and automatically cause some jurors to view pain management doctors in a negative light due to perceptions they “overprescribe.”  Therefore, it is vital to gauge perceptions among the populace to understand if biases and personal experiences will cause a jury to ignore the law, increase awards or otherwise prevent the defense from getting a fair shake at trial. 

No matter what the lawsuit involves – breach of contract, accounting fraud, long-distance trucking, surgery-gone-wrong, car accidents, product liability, employee overtime disputes, sexual harassment – the trial venue can determine the difference between resolving it early or taking it all the way to the courtroom.  After all, our national survey data shows jurors in Buffalo are likely to view icy slip-and-falls differently than San Diego residents who have never seen snow in their lives – and it is beneficial to understand how geography can influence opinions, verdicts and damages.

If you want to understand how jurors in your particular trial venue for an upcoming case will view the facts, arguments, witnesses – and why – please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

First Impressions Last

We’ve all been in the poor position of making a bad first impression, then spending hours or even years trying to dig ourselves out of that hole.  Recent research in an article from Forbes has confirmed the importance of making good first impressions, since people tend to view what they learn later about a person through the lens of what they initially believed.  Regardless of whether a person’s first impression accurately represents his or her character, humans by nature trust it.

First impressions also matter in the courtroom, where jurors will likely continue to refer back to the initial story you tell them for the duration of the trial.  We have worked on hundreds of cases and seen jurors sway back and forth between verdicts.  However, the vast majority of jurors reach a verdict that is consistent with their initial gut reaction.  Our research with more than 6,000 focus group participants shows an overwhelming 83 percent submit the same verdict at the end of the study that they reached after reading and discussing the initial case fact pattern.

That’s why it is so important to define your case’s narrative up front, establishing early on the most important themes and mitigating the most troubling opposing arguments.  Framing a compelling story that resonates with jurors’ perceptions is the key to ensuring they may interpret what they hear later in a way that benefits your client.

Additionally, humanizing your client on the stand could be the best way to change stubborn plaintiff-leaning jurors’ initial opinions.  Forbes explains first impressions can be overcome when the relationship is important to a person.  We suggest asking your client or other witnesses on the stand how they got started in their career, or include small details about their family life.  What some may view as minor or irrelevant can be crucial in creating juror appeal.

If you need help creating the best first impression for your jurors, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Overcoming Sci-Fi Expectations

We’ve written frequently about jurors’ elevated, unrealistic expectations for healthcare and medicine, but one area where we’ve seen this phenomenon rear its ugly head the most is related to hospital technology.  In short, jurors expect seamlessly integrated, technologically advanced hospitals like something out of a sci-fi movie or TV show rather than the imperfect reality.

For example, we’ve worked on several cases where different clocks set to different times several minutes apart gave the appearance in the medical record that inexplicable delays occurred while delivering critical medical care.  To a layperson, of course an institution as sophisticated as a hospital – where every minute counts – has all of its clocks synchronized through GPS or an atomic clock.  Right?

The reality – that MRI machines, heart monitors, wall clocks and nurses’ watches are all routinely different – surprises jurors, and they’re initially resistant to believing this is normal and acceptable at hospitals around the world and in the United States.

Similarly, we regularly encounter drug interaction or overdose cases in which it was later learned a patient had more in his system than he told caregivers.  On TV, criminal suspects and new patients alike have test results available seemingly within seconds of blood being drawn.  Surely the hospital could have run a simple tox screen and learned exactly what that patient had on board in just a few minutes.  Right?

Once again, the reality that tox screens – and many blood tests – are not routine and take several weeks to return results doesn’t meet jurors’ expectations, and they can end up holding the hospital to an artificial standard.

When expectations are so out of whack with reality, it’s an uphill battle to get jurors to accept that what you’re telling them is actually true.  To overcome this challenge, we’ve found that a two-prong strategy works best: 

1. Rely on both sides’ experts.  Jurors know you’re paying your experts, and that you wouldn’t be paying them if they were going to say unhelpful things.  That’s why it’s so helpful to get the other side’s experts to corroborate what you and your experts are saying.  Although this can be challenging (depending on the issue), an expert can’t really avoid admitting that in fact it does take more than a few minutes or hours to get tox screen results.
2. Repetition repetition repetition.  Entrenched beliefs are the hardest to overcome, which is why we recommend telling jurors over and over again about the reality that doesn’t match their expectations.  In the above example about tox screens, ask all of the witnesses about it, not just one.  If you’re dealing with an issue of unsynchronized clocks, hit on it in your opening, ask both sides expert witnesses’ whether their own clinic or hospital clocks are all synchronized (they’re not), and reiterate it in your closing.  By the end of trial, you’ll convince them that of course clocks aren’t all synchronized and tox screens take time. You’ve changed their expectations to match reality.

These are only two examples of how hospitals aren’t as high tech as jurors expect, and any med-mal lawyer or hospital risk manager can come up with many others.  But the principles of how to overcome them apply no matter what the issue.

If you have a case where you’re facing elevated, unrealistic juror expectations, we’d love to help.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 for more information. 

The Stickiness in Solidarity

We’ve all been there when deciding to go to a group dinner: one person wants burgers, one person wants tacos and someone else is on a diet.  Choosing a restaurant that all 10 friends can agree on seems like an impossible task. 

Yet, juries made up of strangers from different backgrounds are asked every day to come to a consensus when reaching a verdict.  Getting 12 people to agree on anything seems like a daunting task, let alone a complicated legal case with thousands of pages of documents.  

Although it’s not necessary in many civil trials to reach a unanimous verdict, examining how groups of people form a consensus gives us an insight to how jury deliberations work and how we should frame our cases.  So how exactly does a diverse group of people come to a unanimous decision?

California Institute of Technology research recently combined neurology and social science to examine the biology behind forming a consensus.  They hooked up one individual to an fMRI machine to examine his brain while he worked remotely with five other people (who were off site in a separate room) to make a group decision during various trials.  Researchers found participants’ choices were determined by their own preferences, the group members’ previous choices and the “stickiness” of group members’ choices.  “Stickiness” refers to the willingness of a group member to “stick” to his or her decision.  These aspects of the decision-making process were each highlighted in a different part of the brain and combined in another part of the brain, illustrating it is a combination of all three that leads to consensus decision-making.

This Caltech study shows there is a biological basis in forming a consensus.  Although jurors’ personal choice comes into play, a large portion of their decision is driven by the group’s mentality and the ability of others in the group to conform to the majority.  Therefore, if you have a juror who is dead set on a particular verdict, that juror can actually sway others to change their minds. 

That’s why understanding what jurors think of your case before it goes to trial matters so much.  It’s important to examine not only how jurors react to particular arguments, but also what kinds of jurors to look out for during voir dire. 

To assess potential jurors' “stickiness,” we suggest asking questions during voir dire that elicit a scaled response to gauge the strength of a person’s opinion.  For instance, on our questionnaires we ask participants, “Generally speaking, corporations deserve to be punished more harshly than individuals” with “completely agree,” “somewhat agree,” “I don’t know,” “somewhat disagree” and “completely disagree” as their responses.  Jurors who answer using “completely” are more adamant in their beliefs and are less likely to be swayed.  Those who answer in the middle of the scales are more open to changing their opinion.

If you want to discuss how our focus groups can identify the issues that will build consensus in your trial jury, please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net