Judges: The Fix Is In

If the jury doesn’t get it right, the judge will fix it.  That seems to be the mentality behind some of the grossly inflated jury awards we have observed through the years, that there is a mechanism in place to "correct" inappropriate verdicts and keep jurors in check.  It’s not an illogical assumption, since judges can and do overturn or throw out verdicts.  Earlier this month, a judge struck down a $7.1 million discrimination verdict against former Los Angeles Times sports columnist T.J. Simers, ruling there was insufficient evidence to support his claims.  Given this seems to be a finding for the jury to make, especially if the case was able to get past the summary judgment stage, coverage of the judge’s ability to make this ruling will likely feed the public’s misconception that judges can overrule an erroneous jury award. Just two years ago, one of our own national surveys showed 78 percent of jury-eligible respondents throughout the country believe that if the case makes it to trial, they would assume the plaintiff’s side of the case has at least some merit.  We have explored this in more detail during our focus groups and learned many jurors believe there is some sort of legal body or process that evaluates cases prior to trial, and if a lawsuit gets to the courtroom, someone somewhere has determined it’s probably worth something. During voir dire, it is crucial to learn which of your potential jurors share these beliefs in order to even the playing field.  Otherwise, the plaintiff is clearly going to enjoy some advantages going in to the process.  Further, jurors need to understand there is no "checks and balances" process that will automatically reverse or alter their verdict if it’s not the "right" one, and thus their decision should be based on reason. If you are interested in evaluating how these fallacies can be more thoroughly explored during voir dire, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

"Making a Murderer" and Your Jury

Following on the heels of last year’s hit real-crime podcast Serial, Netflix appears to have a home run with its documentary series Making a Murderer.  For those who haven’t binge-watched the 10-hour series, it focuses on a Wisconsin man falsely convicted of rape who served 18 years in prison and was exonerated and released – then was charged with murder two years later under what many would call questionable circumstances. It’s addictive television.  But it also taps into what is emerging as part of our cultural zeitgeist: mistrust of police and other institutions. In the wake of highly publicized police shootings in Ferguson, Staten Island and North Charleston, among other places, a Gallup poll in June found only 52 percent of Americans expressed "a great deal" or "quite a lot" of confidence in police – the lowest percentage during the 22 years Gallup has been asking the question.  Only 23 percent of respondents have "a great deal" or "quite a lot" of confidence in the criminal justice system, only slightly higher than the percentage that trust TV news. In the litigation world, the implications for civil rights cases are clear.  With public trust in police and the criminal justice system on the decline, we have found during our focus group research that many jurors – even those we would otherwise consider conservative – are quick to believe plaintiff claims of being mistreated or railroaded by police and prosecutors.  When even Fox News spends valuable screen time debating Making a Murderer and covering police shootings, it should come as no surprise that many laypeople have begun to question the infallibility of law enforcement. From our perspective, the litigation ramifications go beyond civil rights cases.  Gallup has documented that trust in most institutions, including big business and medical systems, has declined in recent years, which may make jurors more receptive to claims against "institutions" including hospitals and Fortune 500 companies.   So what’s a lawyer to do?  There’s no changing the climate of the times, but you can try to identify during voir dire those jurors most likely to be suspicious of and hostile to institutions.  The Gallup poll found Democrats and racial minorities were most likely to hold such views, but – as noted earlier – these attitudes can cross political and racial lines.  Asking jurors about their views of institutions such as the criminal justice system, big business, the media and healthcare companies can help identify those who might be most hostile to your client. And perhaps it goes without saying, but you’d be wise to take a critical look at potential jurors who have recently viewed Making a Murderer. If you have a case where you think anti-institutional bias might come into play, we can help you figure out how best to mitigate that issue.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Thoughts On Jury Duty

From Todd Fairbanks, Vice President of Research

I was recently called to federal jury duty in downtown Los Angeles, and after two postponements due to a busy travel schedule, I showed up in person to explain why a pre-planned business trip to the Midwest would once again preclude me from serving.  (Yes, even jury consultants get called for jury duty, and no, we don’t automatically get stricken for cause.)

Since federal cases typically summon jurors from a much wider geographic area, some in the venire drove from as far as 80 miles away (in L.A. traffic, that one-way trip takes approximately five weeks).  To top things off, El Niño had started with a vengeance, lengthening commutes and explaining the haggard, exasperated faces all around me.  The mood was tense.

This general malaise is something we and our clients often encounter during jury selection.  Based on this, the conventional wisdom states people in your venire don’t want to be there and think jury service is an inconvenient waste of time, which makes for indifferent, detached and even hostile jury panels.  And having helped select juries for trials across the country, and having heard the ridiculous excuses employed to try to get out of jury service, I can see why that is a common perception. 

Furthermore, poor show rates for jury duty seem to back this up.  For example, according to a 2015 San Francisco Chronicle article, “About one-fifth of Californians in the state’s most populous counties fail to respond to a summons for jury service…”.  The article goes on to say things are particularly bad in Ventura County, where the no-show rate is an alarming 45 percent.

However, the article doesn’t focus on the jurors who do actually show up, and their level of engagement and willingness to participate in this fundamental aspect of being a U.S. citizen.  Although it’s true most jurors could think of something they would rather be doing than serving on a three-week trial, another way to look at it is that most of the jurors who brave traffic, weather and inconvenience to arrive at the courtroom do want to be there, which can provide an advantage to the side that taps into this fundamental desire. 

Along these lines, we always recommend that prior to jury selection our clients specifically address the inconvenience of jury duty and how you and your trial team will respect jurors’ time and service by making things as concise as possible while ensuring they have all the information they need to make an informed decision.  Of course, it’s incumbent on counsel to do everything possible to follow through on that promise.

However, just because someone shows up to the courtroom (whether by fear of fine or imprisonment, or a genuine sense of civic duty), that doesn’t automatically mean they will be receptive to your story.  This stresses the importance of conducting pre-trial Internet and social media audits of your venire once the juror list becomes available to look for telltale signs of favorable and unfavorable jurors.  Even if the list is made available only moments before jury selection begins, our team is able to conduct online research and send pertinent findings to your trial team in real time.  This type of research is vitally important because it can uncover viewpoints, biases and negative experiences that might not otherwise surface during voir dire. We talk to more than a hundred jurors each and every month and have helped research and select jurors for dozens of trials, which gives us a unique sense of the qualities that make favorable and non-favorable jurors.  If you and your trial team could benefit from a fresh perspective when selecting a jury, please contact Senior Vice President Claire Luna (who has actually served on a jury, in Ventura County of all places) at 714.754.1010 or cluna@juryimpact.net.

Big Changes Coming for Jury Selection?

Regardless of what the U.S. Supreme Court said in Batson v. Kentucky, everyone involved in litigation knows race plays an outsized role in jury selection.  Studies have shown that during criminal trials, prosecutors strike black jurors at a higher rate than whites, and in civil trials defense attorneys often do the same.

When a Batson challenge occurs, attorneys have been able to rest comfortably knowing most judges will accept even the flimsiest race-neutral reasons. 

But that might change soon.  On November 2, the Supreme Court will hear arguments in a case that could upend the way peremptory challenges are used and how lawyers must justify whom they choose to dismiss. 

The case revolves around the 1987 murder trial of a black man in Georgia.  Consistent with studies, the prosecutors used their peremptory challenges to strike black jurors and defense attorneys used theirs on whites.  The result was an all-white jury that convicted the defendant and sentenced him to death.

In 2006, the convicted man’s appellate lawyers obtained prosecutors’ jury selection notes under Georgia’s Open Records Act, and these notes contained information indicating the role of race in their decision-making process.  Prosecutors wrote “B” next to all the black jurors’ names and made a list of the black jurors they could accept versus those they felt they had to strike. 

There’s no telling how the Court will decide this case, but there are still lessons to be learned here.  It’s entirely possible some judges may be emboldened by the fact the Court is hearing this case at all and start demanding more substantial race-neutral reasons for striking jurors.  Here are a few suggestions for how to strengthen your jury selection process, no matter how the Court decides: 

• Look beyond race.  Striking jurors based on race is often the lazy way out– whether it’s done by plaintiff attorneys or the defense.  We believe personal experiences and attitudes are the most important factors to consider when evaluating potential jurors.  Instead of race, focus on truly race-neutral factors, such as education, relevant life experiences and jurors’ opinions about personal responsibility.  Also, there are some cases where minority jurors might be more favorable to the defense – we can help you identify those cases.
• Beef up your reasons.  You shouldn’t feel comfortable offering a judge feeble excuses for striking a juror, such as, “I didn’t like the way he looked at me.”  As mentioned above, there are always better reasons to support your gut feeling than someone’s race, and it’s your job to find them.  If necessary, spend extra time questioning those jurors you think you’re likely to strike.
• Note the race of ALL jurors.  It’s unlikely you’ll ever be compelled to turn over your jury selection notes, but it’s possible you could misplace a page or inadvertently give opposing counsel some other way to catch a peek.  If you’re going to note the race of potential jurors, do it for all jurors, not just the minorities.  We typically use a spreadsheet with a column for race to make sure everyone is recorded.
• Keep control of your notes.  It probably goes without saying, but you should keep close control of all your notes.  Don’t leave them lying around during the lunch break, and don’t throw them away in the courtroom trashcan.  Treat them as the privileged documents they are.
• Appoint a Batson assistant.  If you have an associate or second chair helping you with the case, assign them to listen for and keep track of race-neutral reasons for excusing jurors.  You’ve got enough on your plate, and it’s always possible you’ll miss something important.
• Go on the offensive.  Although it’s less common, we have observed attorneys use Batson to challenge strikes used against white jurors when it appears an attorney is systematically trying to load the jury with minorities.  At the very least, this can show plaintiff attorneys the race issue is a two-way street. 

We’ve helped attorneys select juries for hundreds of cases, and we are particularly adept at preparing for and navigating Batson challenges.  If you’d like our help choosing your next jury, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

We’re excited to announce Jury Impact has moved offices.  If you would like to get in touch with us by mail, please send all correspondence to our new location at 19800 MacArthur Blvd., Suite 700, Irvine, CA 92612.

Juror Passions Can Foretell Leanings

Education, employment, marital status – all important data to know about your potential jurors, but it doesn’t necessarily tell you what they really care about.  We recently sat through a trial where one attorney mixed up the routine voir dire questions by asking jurors to talk about their passions.  The answers were fascinating, and ended up predicting juror leanings and leadership potential far better than a dry recitation of hard facts.

For example, the woman who meets weekly with her Jaguar car club had a significant amount of disposable income, and her conservative nature mixed with a fun, outgoing personality made her an easy choice for foreperson.  The marathon enthusiast was a strong believer in personal responsibility, so the plaintiff’s claims in this specific case annoyed him from the start.  The woman who volunteers at a battered women’s shelter had an empathetic personality, but also was less sympathetic to the plaintiff because her problems did not seem particularly troubling when compared to those of the women this juror typically sees.

In addition to learning about these jurors’ hobbies, it was also instructional to observe them as they discussed their passions.  When someone is engaged, you can often see a different side of their personality.  We could immediately sense who was going to be a leader and who would follow the group, as well as get an idea for what personalities might click with or grate on each other.

We understand not all judges will allow questions that go beyond the basics.  But if you can, we highly suggest digging deeper than straightforward demographic queries to learn more about what makes your jurors tick.  Because oftentimes, these things can provide helpful clues as to which way they will side on your case.

For more suggestions on beyond-the-basics voir dire questions, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.

We’re excited to announce Jury Impact has moved offices. If you would like to get in touch with us by mail, please send all correspondence to our new location at 19800 MacArthur Blvd., Suite 700, Irvine, CA 92612.

Low Income Could Mean High Awards

One of the major hot-button issues during this year’s presidential race is the perceived vast income inequality in the U.S.  Bernie Sanders’ platform is in large part based on his socialist ideals, while Democrats and Republicans debate whether there should be a flat tax versus a higher tax for the wealthy.  This debate splits voters right down the middle, and we’ve noticed how differences between those at the top income bracket and those at the bottom can directly shape opinions in the courtroom.

We’ve worked with more than 7,000 participants during our 12 years of experience conducting focus groups and found jurors whose annual household income is less than $25,000 are 1.3 times more likely to find in favor of the plaintiff than those whose annual household income is $75,000 or more.  We’ve also observed these plaintiff-oriented jurors are more willing to spike damages, including some outliers who award incomprehensible amounts.  On more than one occasion, we’ve heard jurors recommend awarding plaintiffs an eye-popping $1 billion. 

Although a small number of jurors treat awards like “monopoly money,” the majority of low-income jurors’ decisions to award damages are rooted in their plaintiff-friendly ideals.  For instance, our data shows those whose annual household income is less than $25,000 are more likely to believe corporations should be punished more harshly than individuals.  Low-income individuals are also more willing to take lawyer’s fees into account when deciding how much to award and are more likely to award extra money to “take care of” an injured plaintiff “just in case.”

These facts can add up to troublesome awards from a defense perspective, but the perception of “fairness” can work in your favor.  Low-income jurors are also more likely to decide a case based on what’s fair rather than the letter of the law.  Therefore, it is important to ensure you counter the plaintiff’s award in terms of fairness.  Clearly explain the reasons behind your damages number so jurors have an understanding that the defense isn’t “lowballing” – it’s suggesting fair and reasonable compensation based on facts about life expectancy and previous medical costs.

Although replicating the sympathy factor present at trial during focus groups can be tough and there’s no way to definitively predict how anyone – including low-income jurors – will respond in the courtroom, examining the reasoning behind jurors’ awards can help.  Please contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net if you’d like assistance learning what factors jurors in your jurisdiction believe are important.

We’re excited to announce Jury Impact has moved offices.  If you would like to get in touch with us by mail, please send all correspondence to our new location at 19800 MacArthur Blvd., Suite 700, Irvine, CA 92612.

Make A Point Everyone Understands

A picture may be worth a thousand words, but it’s only effective if it uses the right words.  As we have said before in this space, visual aids can be a key way to communicate information at trial.  But an infographic or visual that you think clearly communicates with jurors may not be as comprehensible as you think. Pew Research recently conducted a survey asking respondents about their knowledge on several science questions.  The list included a scatterplot graph showing the correlation between sugar consumption and decayed teeth.   Only 63 percent of Americans could read the graph correctly.  This issue became even more apparent when the data was broken down by education – only half of those with a high school education or less understood the graph.  Having a visual aid is only helpful if the jury understands it.  The majority of your jury pool isn’t likely to be composed of college graduates (where eight out of 10 could decipher the scatterplot correctly), increasing the chance your visual will fly right over their heads.  We’ve outlined some helpful tips to ensure your graphics are effective and simple to understand for all your jurors: Simplicity is Key – Limit the amount of information you include on a visual aid.  You don’t want to overwhelm your jurors with 10 different points of information on a graph where important information can get lost in the shuffle.  Instead, use just a handful of bullet points.  If you’re using a graph to illustrate a relationship, limit it to a relationship between two or three points.   Highlight the Main Point of the Graphic – Outlining a specific bar in a bar chart or using a different color for a particular point in a timeline will help to place your point in the context of the whole story, allowing jurors to focus on your message. Explain Your Visual Aid – It may seem obvious to some, but you’d be surprised at the presentations we’ve seen where speakers leave their chart open to interpretation.  Clearly explain what each aspect of the visual aid means and how it relates to your overall story. Plan Your Presentation Without Graphics – Not only is this helpful in case technology goes awry in the courtroom, but it also sets the precedent that your visual aids are there to enhance your message, not tell it for you.  Write your presentation without the use of the graphic and see if it still makes sense. Getting a message across during trial can seem difficult, but the use of effective visual aids can help, especially if everyone on your jury can understand them.  If you would like help developing clear and effective trial demonstratives, please contact Senior Vice President Claire Luna and 714.754.1010 or cluna@juryimpact.net

Crafting an Effective Story

This holiday movie season brings with it some of our favorite franchise stories and characters of all time.  Batman faces off against Superman to protect the world in Dawn of Justice.  Katniss Everdeen prepares for the final battle against President Snow and the Capitol in Mockingjay Part 2.  And Luke, Leia and Han reunite 30 years after the Battle of Endor in The Force Awakens.  These stories endure because people care deeply for the characters and long to see what happens in the classic battle between good and evil.

As trial attorneys, you certainly wish jurors would enter the courtroom with the same enthusiasm they have when they enter the theater showing the latest blockbuster.  Here are some tips to help you develop an interesting story to keep your jurors interested and invested in your client’s story:

Characters – Good stories start with good characters.  In your story, your main characters are the plaintiff and defendant, and your supporting cast members are your witnesses.  Your job is to bring your characters to life so the jury can better understand their motivations.  It’s your job to explain who they are, where they came from, why they made the decisions they made and why your jurors should trust them (or not).

Setting – Setting provides the anchor for your story by giving jurors context.  If your story has many significant dates and times, your jurors will thank you for creating a timeline to help them organize the information.  Additionally, we all love picture books, and if it makes sense to include pictures of the setting, doing so will help jurors visualize the story.  Both of these small acts will also help you establish credibility.

Plot – The plot is the driving force behind your story.  Skilled writers start with a good theme and weave their facts around it.  Instead of seeking to change your jurors’ core values, you should develop a theme that fits within their preconceived definitions of fairness and justice.  Remember to keep your plot points simple and well organized without immersing your jurors in too much detail – your job is to try the case, not your jurors’ patience.  Revisit your theme when you question witnesses and introduce new facts.  Repetition will keep your message fresh in jurors' minds.

  

Conflict – You should address the conflict of your story as early as possible by telling jurors the claims against your client and how you intend to prove he or she acted reasonably.  We suggest using opening statements as an opportunity to precondition jurors to the unfavorable points in your case.  Owning the conflict in your story shows jurors you’re confident you will overcome it.

Resolution of conflict – It is important for jurors to know how they can make your story right.  Think of this as the “Choose Your Own Adventure” aspect of the story, in that jurors can choose how justice will be carried out.  Once again, you should reinforce your theme and advise jurors that a ruling in your favor is the only way traditional notions of justice can be reached.

Storytelling is an art form, and we understand the challenges of telling the right story.  If you need help developing or telling your story, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

With Witnesses, Focus on the Big Picture First

We’ve found that when prepping a witness for trial or deposition, many attorneys jump right into the medical records, corporate documents, employment files or other minutiae.

It’s understandable, because these are the documents you use to build your case – but we believe it’s misguided.  We believe it’s first necessary to focus on the big-picture themes that form the bedrock of your case, and only delve into the details when the witness has internalized the bigger ideas.

From our perspective, the first and most important goal of a prep session should be to formulate the witness’ message safeground – an idea (or two or three) that encapsulates the witness’ message to the jury and serves as a lens through which the witness can view the details.  Keeping the message safeground in mind allows the witness to see how the details fit into the bigger theme of the case.

What the message safeground is not is a rote statement for the witness to repeat ad nauseum.  Instead, a witness should keep the message safeground in the back of his or her mind and consider how each detail to be covered during testimony relates to that theme.  This results in testimony that is both consistent and supports your broader theme of the case.

We’ve prepped hundreds of witnesses of all types through the years, and the message safeground is just one aspect of the successful process we’ve developed.  If you have a witness that could use our help, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Get to Know Your Jurisdiction

We have long believed learning as much as possible about your trial jurisdiction is an important but often overlooked part of the trial preparation process.  This may seem obvious if the jurisdiction is a county or state that is unfamiliar to you, but we believe it is equally true even if you’re in your home jurisdiction where you’ve tried dozens of cases.

Just because we live and work in a place doesn’t mean we always know everything about it. People tend to associate with others like themselves, so we may not be exposed to those in our own communities who see the world differently than we do.  These disparate worldviews can and often do affect how jurors will see a case.

It is also true that times change, and any given jurisdiction may not be the same as it was 20, 10 or even five years ago.  For example, a gay plaintiff might have had a hard time getting a fair shake in some jurisdictions a decade or two ago, but that might not be true any more for many of those same jurisdictions.

Similarly, demographic trends – such as an increasing number of Hispanics in many parts of the country or young, affluent people flocking to inner cities – can impact the composition and attitudes of a potential jury pool.

There are also case-specific factors you should consider as you assess your jurisdiction.  For example, we’ve noticed that even extremely conservative, predominantly white jurisdictions have become more receptive to police brutality and wrongful conviction lawsuits as these issues have been front and center in the news during the past couple of years.  Similarly, media attention to the issue of “pill mills” and prescription drug abuse has affected how many people see the use of narcotics in medicine, and these perceptions and attitudes can impact how jurors assess a doctor’s care.

The point is, there are myriad demographic and sociographic factors at play in any given jurisdiction and for any given case.  No matter how much experience you have in a place, we believe it is worth exploring the attitudes in your jurisdiction and how they might affect perspectives on your case.

There are many ways to do this, of course, but one way is through Jury Impact’s community surveys.  We work with the client to craft a customized survey and then field it to a representative sample of your jurisdiction using proprietary technology developed by our sister company, MFour Mobile Research. 

Through a community survey, we can explore attitudes about everything from the reputation of a hospital or company to thoughts about a relevant hot-button issue.  It can provide an incredible amount of intel – useful during voir dire during every trial in a jurisdiction – for a relatively modest investment.

We’d be happy to walk you through our community surveys and what they can offer you. To find out more, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

At Trial, More’s Not Always Better

If you’ve been following the news recently, you’re probably aware there are currently 15 candidates running for the Republican presidential nomination.  An ongoing debate has questioned whether 15 is just too many candidates – overwhelming voters, creating chaos and making it difficult for candidates to break through the noise.  Although we have no opinion about this political issue, when it comes to witnesses at trial we do believe you can have too much of a good thing.  We’ve long believed that more is not always better, and you shouldn’t present 12 witnesses if seven or eight will do.  Similar to voters, jurors have a limited attention span – and a concise, surgical presentation is more effective than one that drones on and on. Trial attorneys sometimes feel the need to match the opposition witness for witness.  You obviously need to present enough witnesses – and the right ones – to tell your story and rebut the opposition’s case, but we don’t recommend feeling like you “need” to present a certain type of witness just to check that box and match the other side’s number.  Instead, we recommend streamlining your trial presentation whenever possible without sacrificing important testimony.  We’ve interviewed hundreds of trial jurors through the years, and one of the most common complaints is redundant testimony that “wasted our time” – not once has a juror told us one side’s trial presentation was too short. With that in mind, here are a few ways we’ve encountered to streamline your case: Have witnesses serve double duty – Have your experts testify about multiple issues when possible.  There are times in medical malpractice cases, for example, when separate standard of care and causation witnesses are necessary, but just as often a single expert could handle both of these areas.  Just because the other side uses multiple witnesses doesn’t mean you need to. Avoid repetitive testimony – If you feel like you’ve defeated a certain issue during the other side’s case through their witnesses, don’t always feel the need to present your own witness about the issue.  Although it’s sometimes helpful to re-emphasize certain points with your own witnesses, also bear in mind that you’ll be opening your witness up to potentially damaging cross-examination.  Sometimes it’s better to quit while you’re ahead. Keep it short(ish) – Jurors rarely enjoy a four-hour direct or cross-examination, and in our opinion it’s rarely necessary.  Cover the ground you need to, and move on to the next issue when you think you’ve made your point. Be prepared – Jurors find nothing so frustrating as an ill-prepared lawyer fumbling through documents during the middle of a witness examination. To the extent possible, plan ahead and know which documents you’ll need so you can make the best use of your time – and the jury’s. Every case is different, and the witnesses you'll need to present and what you should cover with them depends on the specific case.  If you'd like to get a read on the key elements of your case, our focus group process can help.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 for more information.

Rookie Expert Witnesses Can Be Worth the Risk

The start of the NFL season brings with it a crop of new rookies, bright-eyed and eager to make an impact.  As any coach, pundit or fantasy football player knows, which rookies are going to turn into stars and which are destined for the scrap heap is anybody’s guess.

But the fact rookies are unknown quantities is also what makes them so intriguing and valuable – because there is such limited information about them, they can easily sneak up on the opposing team as a secret weapon.

We believe the same applies to first-time expert witnesses.  There’s obviously a risk of using a newbie as a foundation of your case, but inexperienced witnesses also have several advantages over those with dozens of depositions and trial appearances under their belts:

• Avoiding the “hired gun” label – Witnesses who have testified dozens of times can easily be painted as “hired guns” who will say anything the attorney pays them to, especially if a large percentage of their witness work is for only one side.  New witnesses don’t have this baggage, and jurors may be more likely to think they’re testifying because they truly believe in the case rather than just because it pays well to say so. 
• Not a “professional” witness – We’ve seen expert nursing witnesses who haven’t worked at a hospital in 20 years, and retired doctors who supplement their retirement income with witness work.  It is easy to attack the credibility and freshness of these witnesses’ knowledge, especially when compared with those who are still working “in the trenches.”  We’ve found jurors often respond better to witnesses who are still actively involved in their primary careers and have testified seldom or not at all, even if they don’t have the paper credentials that come with long careers in academia or administration.
• Less polished can be more earnest – Numerous jurors have told us after trials that they found experienced, star witnesses “too slick” and therefore not as credible.  Inexperienced witnesses may not be as polished as old hands, but this lack of polish may make the witness seem more earnest and believable.  Jurors understand these people are experts because of their experience and knowledge, not their slick presentation skills.
• Can’t be pinned down as easily – Like politicians, experts with a long track record leave an extensive paper trial for the opposition to pick apart and look for things that contradict their testimony.  This is especially true for academics who have published dozens of papers and conference presentations over the years.  Younger experts without that same history are more of a blank slate, and are less likely to get tripped up by things they’ve written or said in the past.
• Younger can be better – It’s a fact of life that some in our society harbor a bias against older people.  This may cause jurors to view younger witnesses as more “cutting edge” and well informed than those heading for the twilight of their careers. 

Of course, it’s necessary to be judicious when considering an inexperienced expert witness, and you’ve got to be comfortable with their qualifications, knowledge base and ability to communicate.  We also recommend prepping these witnesses thoroughly prior to deposition and trial so they won’t be surprised by tricky tactics they’ve never encountered.  But if you choose wisely and put in the work, we believe a rookie expert can lend your case an authenticity a more experienced witness may lack. 

If you’ve got an inexperienced witness who needs to be prepared for deposition or trial, we’d love to help.  Witness prep is one of our mainstays, and we’ve worked with witnesses of all types through the years.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out how we can help. 

Evaluating Your Argument Roster

During the past week, millions of Americans have started their Fantasy Football leagues.  If you’ve never played, it involves creating a mock football team composed of NFL players.  Players acquire points depending on how well they perform in their real-life games.  Each week, fantasy teams face off in a “matchup” against another team for the most points.

At the start of the season, a team will draft more players than are needed and then pick who will play each week, benching the rest.  There are a lot of different strategies to choose which player to use that week, but oftentimes people go with their gut.  Sometimes this instinct turns out well, sometimes not.

When it comes to arguments at trial, you may experience the same pitfalls.  Structuring your whole case around what you think the strongest argument is could fall flat in the courtroom. 

Our focus groups are a great tool to test arguments and ensure you’re putting your best players out there.  Along with the participants themselves, we operate as a fresh set of eyes.  We can test multiple arguments using our Instant Response technology to see which ones potential jurors in your jurisdiction rate the highest.  We then follow up with jurors to talk about why they favored a particular argument.  This allows you to not only identify which arguments to use, but to also hear the language your jurors use to discuss it.  On more than one occasion, we’ve even had jurors surprise us by rating the underdog argument as one of the strongest for the defense, which has helped attorneys restructure their defense more effectively.

If you would like help identifying which arguments to play and which ones to bench, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010. 

Don’t Let The Reptile Slither Into Your Trial

The Reptile Theory has been all the rage among the plaintiffs’ bar for the past several years, and you have no doubt encountered a practitioner of this theory slithering his way around a courtroom. 

The theory is simple: The most successful way for a plaintiff to persuade a jury is by using fear to appeal to the primitive, reptilian part of the brain that houses our survival instincts.  By focusing on the supposed dangers of the defendants’ conduct, attorneys prompt jurors to react out of fear for themselves and the community and punish the defendants for putting the community at risk.  The most common way they do this is by creating supposed “safety rules” and suggesting the defendants violated them – endangering the entire community, not just the plaintiff.

Although we’re skeptical of the neuroscientific trappings of the theory – which scientists have challenged – there’s no doubt scaring a jury can be an effective way to get jurors to react emotionally rather than intellectually – and emotion in a trial usually benefits the plaintiff. 

But the defense bar has not taken this lying down, and in trials we’ve attended during the last couple of years, we’ve noticed defense attorneys challenging the reptile tactic more proactively.  Here are a few things you can do to send the reptile on its way:

• Motion in limine – Many people have noted the Reptile Theory is nothing new – it’s really just a restating of the Golden Rule, in which jurors are encouraged to put themselves in the place of the plaintiff.  Golden Rule tactics are usually not allowed, and we’ve seen several attorneys successfully obtain motions in limine against plaintiff attorneys mentioning “safety rules,” “safety principles” and other terms that suggest a duty to someone other than the plaintiff.  We’ve also seen judges bar plaintiff witnesses from testifying about what would be the “safest” thing to do, as the standard of care is “reasonable,” not “best” or “safest.”  We would encourage all defense attorneys to submit motions in limine in any case where the plaintiff might engage in Reptile Theory – even if the judge doesn’t grant it, the motion will get the tactic on his radar and you might prevail the next time around.
• Prepare your experts – A favorite tactic of reptile practitioners is to create demonstratives or charts of supposed “safety rules” or “safety principles” and get the defense’s expert witnesses to agree these rules are valid.  The “rules” are often phrased in such a general way that witnesses fear looking unreasonable if they do not concede, but by conceding, the witnesses in effect “endorse” the plaintiff’s standards.  Expert witnesses need to be warned about this tactic and made to understand what the plaintiff attorney is trying to do.  Witnesses should push back against the assertion that these principles apply in all situations, and that they apply to any particular case.
• Choice, fairness, accountability – Safety can indeed be a powerful motivating factor for a jury, but there are other principles that resonate just as deeply.  We have long believed that “choice,” “fairness” and “accountability” are the most popular words in the English language, and if you can couch your story in these terms, you can effectively appeal to jurors’ fundamental instincts.  Jurors want to do what’s fair and hold the right people accountable – even if it’s plaintiffs themselves – and you need to convince them you are on the side of right.

We’ve seen a lot of defense attorneys in the courtroom successfully take on the Reptile Theory, and we’d be happy to share our experiences with you.  If you’ve got a case involving these thorny issues, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010 to find out how we can help.

Collective Memory Can Be Collective Mess

Generation X received a shock recently when they realized that the Berenstain of the Berenstain Bears – purveyors of life lessons including healthy eating, sharing and stranger danger – is spelled with an a, not an e. 

A large and vocal percentage of those who read these childhood favorites about a family of moral-focused, treehouse-dwelling bears staunchly believe that their surname was Berenstein.  Evidence that in fact it is Berenstain has produced conspiracy theories and talk of a glitch in the matrix and the existence of parallel universes where the names were spelled differently. 

The more accurate explanation is that this is another example of what researcher Fiona Broome dubbed the Mandela Effect.  This phenomenon was described after large groups of people all had very vivid – and very false – memories of Nelson Mandela dying in prison well before his actual passing in 2013 at his home.

These types of collective false memories can also be a factor during a trial, when a majority of jurors remember a piece of testimony or a key demonstrative differently than what actually came out in court.  This is why we believe repetition is so important at trial, since the more a person hears something, the more it’s established as fact.  Also, allowing jurors to take notes and ask questions of witnesses can solidify accurate memories of what is said and shown at trial so that during deliberations, the correct information is disseminated.

To discuss more about how to combat this phenomenon at trial, especially when you expect a case will take many weeks or even months to try, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Follow the Leader

Among the lawyers we work with, and also on our own team, we have observed some ironclad “rules” for jury selection.  When it comes to cases where we are working for the defense, we always try to strike teachers.  We look critically at those who have filed a similar suit or have even thought about filing one.  One of us refuses to consider men with ponytails.

But beyond those rules, the other primary attribute we consider is leadership potential.  In fact, our juror “facesheets,” customized one-page summaries of individual jurors, include a box on top where we add a plus if we believe a person will likely be a leader in the deliberation room.  That plus goes right next to our overall juror rating, underscoring the weight we place on this trait.

Identifying the potential leaders in your venire is key, because the inclusion or exclusion of certain leaders can change the entire tenor of your trial and likely determine (or at least strongly influence) the outcome.  Whether it’s actual leadership experience such as being PTA president or head of a club or personal experience relevant to the case that might give the person knowledge of the subject matter, we have observed such people dominate a focus group conversation.  In this setting, our moderators are able to re-direct conversation to “spread the love” to the less vocal participants. 

But at trial, there may not always be a voice of reason in the deliberation room.  We have heard about leaders taking over the discussion and in some cases belittling or berating those who dare to disagree.  In the end, the verdict could very likely go the way the leader wants – regardless of whether it’s the consensus of the jury as a whole.

If you would like some guidance on the right questions to ask to identify the leaders in your venire, contact us at cluna@juryimpact.net or 714.754.1010.  We look forward to hearing from you.

Filing a Lawsuit Is Easy As Pie

It seems to surprise many Americans that running for president or any elected office is as easy as filing a form and meeting some minimal age and citizenship qualifications.  But that’s at least part of the reason why the current pool of presidential candidates is large enough to field two softball teams. 

It may be that the only thing easier than running for president is filing a lawsuit.  Where Jury Impact is based in Orange County, Calif., a civil case can be filed for just $225.  (The small claims filing fee is even less – just $30, or one-third the price of a ticket to Disneyland.)  But not everyone understands how simple it is to file a lawsuit, and the different perspectives on this issue can be surprisingly predictive of juror verdicts.

In research with more than 6,000 jurors around the country, one of the most striking correlations we have observed ties to responses to the question: Filing a lawsuit is a) too easy, b) just about right or c) too difficult.  Those jurors who believe filing a lawsuit is too difficult are 1.2 times more likely to find in favor of the plaintiff during our focus groups.  Those participants who consider it too easy to file a lawsuit are 1.2 times more likely to side with the defense.

Put a different way, 68 percent of those jurors who render a defense verdict believe it is too easy to file a lawsuit.  These jurors tend to believe there are too many frivolous lawsuits simply because the process is so simple, and they also are more likely to believe a plaintiff might be using a lawsuit to “game the system” or as a “get-rich-quick scheme” rather than a valid complaint.

In contrast, those jurors who believe it is too hard to file a lawsuit tend to also share the misconception that there is some “process” within the legal system that weeds out frivolous lawsuits.  This in turn creates an air of legitimacy around the lawsuits that do make it to the courtroom.  As many as 80 percent of jurors in our most challenging jurisdictions believe that if a case makes it to trial, it must “have merit.”

Next time you’re considering questions to add to voir dire, we would suggest asking about juror views on the ease or difficulty of filing a lawsuit.  The answers can be illuminating and, in many cases, predictive of juror behavior in the deliberation room.

To discuss other ways to elicit revealing information during jury selection based on our data, contact us at cluna@juryimpact.net or 714.754.1010.

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.