No One Wants to Meet a “Risk Manager”: Define the Language, Control the Debate

We recently met a defense attorney who chatted with us about a potential client meeting the following week on a “whistleblower” case.  Our free, unsolicited advice to pass on to that potential client?  Stop calling it a whistleblower case – a whistleblower is someone who jurors want to protect, someone who comes into the case with a distinct credibility advantage.  Instead, we suggested, describe it as a lawsuit filed by a “disgruntled employee.”

Along the same lines, no hospital patient or visitor wants to meet a “risk manager.”  Think about it – the title combined with the timing (typically right after a negative event) might as well be “the person who tries to keep me from filing a lawsuit.”  A designation that would likely create much more positive associations would be “patient advocate.” 

Defining the language allows you to control the debate.  Instead of allowing opposing counsel to control the conversation with their biased vocabulary, set your own terms with defense-oriented language that tells your story.

And it’s not just us who say so.  In a survey conducted last week by our sister company, Surveys on the Go, two-thirds of participants across the country agreed they view a “whistleblower” positively.  Nearly as many respondents agreed the phrase “risk manager” carries negative connotations.

Next time you’re thinking about how to tell your story in court, as well as the words opposing counsel will use to tell their story, consider the power of language.  You can even use language to turn a weakness into a strength.  For example, with an inexperienced nurse or doctor that the plaintiff lawyer will describe as a “rookie,” go on the offensive and humanize him or her for the jury as “fresh,” “energetic” and “current on all of the newest medical advances.”

If you’d like our input on how to control the language – and the debate – for one of your pending cases, call us at 714.754.1010 or email Senior Vice President Claire Luna at cluna@juryimpact.net.  

MedStar’s Larry Smith – In Court, “Fairness” Matters More Than the Law

Jury Impact’s new monthly Internet radio show “Trial Talk” interviews high-profile leaders in litigation to get their opinions about trial trends around the country.  In our first edition, we interview Larry Smith, head of risk management for MedStar Health, on trial tactics, characteristics of a great defense lawyer and the future of healthcare in America.

To listen, click here Larry Smith Interview or visit our website at www.juryimpact.net.

Here are some snippets of the interview:

Q:        What’s the most important quality of a great trial lawyer?

A:        “Somebody who can tell the story, somebody who can convey [to a lay jury] a very complex set of medical issues.  It is almost like everything else that we do in life – [to be successful you must have an] ability to relate.  The ability to relate from one human being to another makes a tremendous difference…  In medicine, sometimes the law doesn’t mean a whole awful lot.  What does mean a lot is the story.”

Q:        How do different jurisdictions influence verdicts?

A:        “Malpractice is a local phenomenon. [At MedStar] I have six different jurisdictions I have to worry about: five in Maryland and one in the District of Columbia, and they are all different.  If you take the same case and try that case in DC 10 times, you may win that case eight times.  If you take that same case and try…in Baltimore City with the same witnesses, same everything, [you are likely to] lose that case probably [eight out of 10 times].  So part of the analysis has to be, ‘do I realistically have a chance with a jury [in this jurisdiction] to prove to them what I need to prove in order to prevail?’”

Q:        How important is “humanizing” witnesses?

A:        “One of the lawyers I enjoy working with said to me before a trial – we [were putting on the stand] one of [our] nurses [who was also] one of the defendants [in the case] who was really well credentialed.  She also was a member of the Armed Forces before she became one of our [nurses] – and he said, ‘I’m going to spend 30 seconds on her academic credentials, and I’m going to spend 10 minutes on her personal credentials.  I’m going to [show] this jury what a wonderful person [she] is.’  And, I’ve got to tell you, just watching the jury…you could see them really tuned in.  They could care less what school she went to; they loved [the fact that she served her country and had given such great] public service...”

Q:        What’s the next “big thing” in healthcare?

A:        “We’re not [slowly] moving towards [hospitals employing doctors], we are right in the thick of it… I looked at the data recently, and four years ago about 50% of the physicians in this country were employed [directly] by a healthcare [system] or an insurance company.  Today, that [number] is 77% and it is expected in the next two years to be over 80%.  So, we are talking about a smaller and smaller number of physicians who are going to be independent and more and more physicians who are going to tie their [professional] practice to a healthcare [system] such as MedStar…or one of the insurance companies...” 

Q:        Talk about the future of patient care.

A:        “I have seen lots of changes—managed care and the coming and going of managed care, development of healthcare systems like MedStar.  What we’re seeing right now, I hope, is…the beginning of…a transformation [in the] way in which we provide care to patients.  …If it is done right, rather than being reimbursed… on [the basis of] what I do to the [patient], I’m going to be rewarded on how well I [maintain the health of] populations of [patients]. …[How can I keep] people out of hospitals, [and how can I keep them at home] with their families?” 

Jury Impact will be conducting these interviews monthly, so if there are any topics you would like explored, or suggested guests for our show, please feel free to call us at (714) 754-1010 or email us at cluna@juryimpact.net. 

Humanizing the Messenger

You’ve heard us talk about humanizing corporate or governmental clients at trial, but remember, lawyers need to humanize themselves as well.

A fundamental part of forging the connection between jurors and your side of the story is giving juries a messenger they connect with. Recently, we watched an attorney do just that leading the defense’s voir dire.

Instead of launching into questions that managed to be both tedious and invasive, as the plaintiff attorney had done, he stood up holding a single sheet of paper – the same ones the jurors had used to prompt them on their basic demographics. And after cheerfully telling jurors he would never ask them to talk about things he wouldn’t himself, he told them his name, marital status and occupation.

When he reported his time in the county – “about six days” – the jurors laughed, and he successfully diffused any attack the plaintiffs were going to make on our “cowboy” lawyer defending cases 1,500 miles from home.

In two minutes, this attorney endeared himself to the venire and set the tone for trial – straightforward and worried less about offending than about being honest.

Jurors are more observant than they get credit for. They notice American flags on a lawyer’s lapel or the license plate frame on a lawyer’s car, and they listen more carefully than you might imagine. Following a recent trial in Utah, exit interviews revealed that jurors noticed and appreciated our attorneys’ ability to personalize themselves, whether conscious or not.

One juror noted that she saw an attorney with a parking sticker for the same amusement park her children love. Another juror told us that she “appreciated” the attorneys’ personal comments, such as when an attorney mentioned her grandmother came to watch her examine a key witness, or the other lawyer used a hypothetical and alluded to the fact his own daughter had seizures when she was younger.

Although we always urge you to choose your words carefully, in the sea of blue suits and bankers boxes, showing a bit of humanity provides an advantage when telling your side of the story.

If you would like to discuss this and other methods of connecting with a jury, or any other topic related to an upcoming case, please call us at 714.754.1010.

Book review: '27 Powers' convinces By the Deseret News

Book review: '27 Powers' convinces
Published: Tuesday, Oct. 11, 2011 12:08 p.m. MDT
By Rhett Wilkinson, For the Deseret News

"27 POWERS OF PERSUASION: Simple Strategies to Seduce Audiences and Win Allies," by Chris St. Hilaire, Penguin, $15, 240 pages

Leaning over someone, using five minutes to make your audience feel safe and staying in the present were just a few of the many, though often obvious, suggestions of persuasion given by Chris St. Hilaire in his book, "27 Powers of Persuasion," which has recently been released in paperback.

It's quite amazing to consider the many ways in which one can break down the methods of persuasion. For those who might think that a businessman, lawyer, politician, or reporter can simply walk into a room and cause everyone to agree with his or her points of thinking, St. Hilaire would argue otherwise.

Some readers may read a chapter in the book — each of which focuses on a particular method of persuasion — from the tactics mentioned above to using third-party validation and being your own pundit. Oft times, the suggestions seem of common sense, though others may not strike readers as such.

St. Hilaire uses excellent examples ranging from sports figures to business entrepreneurs to demonstrate his points — showing tact in one of his own suggested methods, "mak(ing) sure everyone's invested."

St. Hilaire also uses appealing personal examples, including, among other examples, the time he wore a pink shirt as a part of helping a team of lawyers recognize their reality.

In doing so, St. Hilaire has appealed to readership beyond just law or journalism, but to business owners and even parents striving to guide a family. St. Hilaire's appeal to a wide demographic through his strength of parallels is found from start to finish.

www.27powersofpersuasion.com

Jurors Adding Lawyer Fees

Jurors are typically instructed not to include attorney fees when considering damage awards. Think they’re listening?

Nationwide data collected this year from our jury focus groups is telling: A whopping 76 percent say they would take lawyers’ fees into account when determining damage awards.

That tendency isn’t attributable to Americans’ love of ignoring judges, but rather our implicit belief in “fairness.” During focus group discussions, jurors tell us again and again they “know the lawyers are going to take 30 to 40 percent,” meaning if they believe the injured party requires $1 million to be adequately taken care of, lawyers taking 30 to 40 percent in fees doesn’t sound “fair.”

As you can imagine, this “juror math” can cause large verdicts to quickly grow larger.

Give us a call if you would like to know more about our research in this area. And don’t forget to pre-order Chris St. Hilaire’s new book 27 Powers of Persuasion available online now at major book retailers.

To sign up to receive our Things That Make You Go Hmmm... to your inbox, please e-mail us at info@juryimpact.net

Investors Business Daily: 27 Powers of Persuasion

Chris St. Hilaire's upcoming book 27 Powers of Persuasion was recently featured in Investors Business Daily:

Make A Powerful Case

By Cord Cooper

Getting ahead often means winning people to your point of view. It depends heavily on your approach — and the allies you tap to build your case.

• Bring 'em in. If the idea involves risk, some will be hesitant to show early support, says business coach Chris St. Hilaire, author of "27 Powers of Persuasion."

To win people over, use what he calls "third-party validation." Mention key people who support your idea — whether execs, co-workers or industry heavyweights.

If the idea's gaining traction, "nobody wants to be the last" to climb aboard, he noted.

• Defuse. "One of the easiest ways to soothe an ego is to use the phrase 'From my perspective,'" St. Hilaire said. "Perspective is an incredibly useful word that implies you're going to take the emotion out of the conversation."

• Play it up. When presenting viewpoints, look for strengths in each situation. If you're the only woman in a meeting, "own that perspective instead of ignoring it," St. Hilaire said.

He suggested trying something like this: "Can I tell you what I'm hearing from women? They account for 43% of this market."

If you're young or transitioning to a new career, you may be seen as lacking experience. How to fight it? Offer fresh insights convincingly. Back ideas up with facts.

• Show appreciation. If trying to persuade your boss in a one-on-one meeting, "use the first few minutes to make him feel valued," St. Hilaire said.

Thank him for taking the time to meet with you, then get to the point quickly.

• Phrase it positively. When presenting your case, use key words that gain support, such as choice, accountability and fairness. He gave this example: "I want to make sure you have choices, and that in the end someone is held accountable so we ensure the fairest result."

• Give 'em ammo. To bring people aboard, arm your allies with facts — talking points and statistics they can use to make your case, he says. Keep your points brief, so allies — and their audience — can remember them.

In presentations, simplify your story as much as possible. Show how the endgame can be reached. Stress the benefits.

• Size 'em up. Howard Gardner, author of "Changing Minds," suggests asking yourself:

Does the person you're trying to persuade respond well to an upfront approach, or should you open with questions and examples?

What are the person's hot-button issues?

Is the topic you're about to broach one of those issues?

• Compromise. When seeking support, don't respond to requests with a negative. Saying no has an air of finality. Look for common ground with a "let's-try-this" approach, St. Hilaire said.

• Keep cool. The more calmly you make your case, the more effective it'll be, notes communications coach Jack Griffin, author of "How to Say It at Work."

• Be prepared. List the negatives people could raise — then address them early in your presentation.

CLICK HERE TO PRE-ORDER THE BOOK!