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. 

‘Indeterminate’ Doesn’t Mean Emergency

During recent birth injury cases across the country, we have observed a troubling juror tendency to equate an “indeterminate,” Category II fetal monitoring strip with one that is abnormal or non-reassuring. To these jurors, anything that isn’t clearly “good” or “reassuring” is by default a reason for concern.

Needless to say, this can be problematic for defense teams because so many strips are, or become, indeterminate – for reasons as innocuous as the baby sleeping or the mother moving around. Yet jurors often expect providers confronted with anything other than “reassuring” strips to immediately move to “get that baby out” by emergency C-section – especially if they can use the hindsight knowledge that the baby came out injured.

Through our focus group research we have developed some simple juror education strategies to approach this issue:

• “Indeterminate” doesn’t mean “borderline” or “emergency.” Use your experts to educate jurors that indeterminate strips aren’t necessarily concerning findings, and most babies will have Category II strips at some point during labor. Most often this perfectly healthy baby is just sleeping.
• Emergency C-sections are risky. C-sections have become so common that jurors perceive them as nearly risk-free procedures. Educate jurors that all “C-section surgeries” have significant risks – especially emergency procedures that leave no time for thorough preparations such as contacting the blood bank or getting an anesthesiology evaluation.
• A C-section is never automatic. When addressing the juror perception that indeterminate strips require an emergency C-section, it is useful to educate jurors that ACOG guidelines do not recommend an immediate C-section section even for non-reassuring Category III strips. There are other steps that can and should be attempted first.
• External fetal heart monitors have limitations. These tools to provide a basic picture of a baby’s health, but cannot show pre-existing injury or predict injuries during labor. Since the advent of fetal heart monitors, the rate of newborns with cerebral palsy has remained the same.

Have you encountered these perceptions? We would love to hear about your experiences and ideas for addressing this issue, please call us at 714.754.1010.

* * *
Jury Impact welcomes Dr. Chris Condon, an expert in survey methodologies and statistics, who will oversee the design, fielding and analysis of Jury Impact’s quantitative research projects. Prior to joining the team, Dr. Condon was a senior statistician at the American Institutes for Research (AIR), an international educational consulting organization. Before that, he served as a researcher for the Johnson O’Connor Research Foundation, which conducts large-scale aptitude testing.

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.

Keep It Simple

We once monitored a trial where the jurors returned a verdict in 32 minutes. They would have been faster, the foreman explained later, but they wanted to eat lunch before they started deliberating.

Jurors attributed the speedy defense verdict to attorneys who presented a simple, easily comprehensible story that was consistent from beginning to end of the 14-day trial.

Contrast that with the federal criminal trial of former Illinois Governor Rob Blagojevich, where deliberations alone took 14 days – and ended with a jury deadlocked on 23 of the 24 counts.

Jurors’ comments to the media reveal that the prosecutor’s case collapsed under the weight of its own complexity. “The majority of us felt it was confusing,” juror Eric Sarnello said. “It was all over the place.”

Consider what jurors were given to work with: more than a month’s worth of prosecution witnesses and 100 pages of jury instructions. Even more stunning is what they weren’t given, perhaps the most basic courtroom tool available: a timeline. This oversight forced jurors to spend hours of their deliberations doing what prosecutors should have done for them, piece together the dates and charges from 2001 to Blagojevich’s arrest in 2008.

Our case research has demonstrated that the side who presents the simpler story has the advantage. We suggest making sure before you go to trial that you can tell a compelling story in 30 seconds – basically, an “elevator pitch” for your case. If the other side can’t do this, so much the better.

While the Blagojevich jurors were 11-1 in favor of conviction on the other 23 counts – perhaps compelling evidence that the prosecution’s case was at least in some ways better than the defense’s – the fact is that when the standard is “beyond a reasonable doubt,” the need to streamline should be elevated as well. When this case is retried, prosecutors would be well-advised to remember that focus and restraint are paramount to helping jurors understand what a case is all about.

They would also be prudent to consider that the defense did exactly what it was supposed to do: create doubt through a straightfoward contention that the government had failed to prove its case, all without calling a single witness. “Zip,” is how Blagojevich’s lawyer described their defense.

It’s hard to make it much simpler than that.

Things That Make You Go Hmmm…March 2010

Unless you’re a superhero masquerading as an attorney, chances are telepathy isn’t among your abilities. Instead, you’re stuck divining jurors’ thoughts by monitoring body language or note-taking – and assuming feverish writing is related to your brilliant cross-examination, rather than a grocery list or screenplay pitch.

Fortunately, more and more courts are allowing jurors to submit written questions to witnesses following the attorneys’ examinations. These questions provide a much better gauge of juror leanings during trial by revealing what made sense to them, what did not, and what else they want to know.

Although some lawyers may prefer the “ignorance is bliss” approach to trial – learning what the jury was thinking only when the verdict is read and not before – we respectfully disagree.

As we have observed during our focus groups and mock trials, the ability to identify and answer questions from the outset prevents the dangerous juror tendency to make up their own answers based on potentially inaccurate, pre-existing knowledge. Pre-trial jury research can help to eliminate and address the majority of likely juror questions, and allowing jurors to submit questions during trial adds another layer of proactive protection from harmful juror assumptions.

During a recent trial, juror questions were eye-opening. After nearly four hours of expert testimony explaining the plaintiff’s causation theory, a high-priced, self-important expert witness received the following query: “So I don’t understand…what exactly is your theory on why the plaintiff was injured?”

With that one question, from arguably the most intelligent juror on the panel, the defense knew the plaintiff’s “star expert” explanation had failed to resonate, and, most importantly, that despite four days of testimony, jurors were still observing the plaintiff’s case with a highly critical eye.

So until your superpowers include mind-reading, encouraging the court to allow juror questions can be a great way to get into jurors’ heads and adjust your case accordingly – before they announce a verdict you don’t want to hear.

-Claire Luna

Exit Interview Tips

About three days after we check out of our hotels, an e-mail containing a feedback survey pops up in our inboxes. Hotels use these questionnaires to learn what they did well and what could be done better. I guarantee that North Carolina hotel we stayed in a little while back will be much more vigilant about springing forward their clocks and stocking the bathroom with towels after the lambasting my co-workers and I provided in our responses.

Exit interviews with jurors can provide the same wealth of information, but oftentimes attorneys and their clients concentrate too much on the good or bad news of the verdict itself and not enough on the people who actually delivered it.

During the past three years, Jury Impact has refined its exit interview process to make it more consistent, comprehensive, and useful. As a former reporter for the Los Angeles Times, I was able to incorporate journalistic skills and techniques to make these interviews as powerful a learning tool as possible for our clients.

If lawyers decide to do the interviews themselves, the following tips can help:

A good first question asks jurors to describe what the case was about in one to two sentences, as if they’re describing the trial to their spouse or best friend. Not only will it make jurors comfortable because it’s an easy question, it will also provide you a great deal of insight into the direction of their answers to later questions.

Use the jurors’ answers to transition to other questions. This creates the perception the jurors are driving the interviews, not the other way around. For example, transition to another question by saying, “Going back to that point you made about the attorney being heavy-handed with that witness, tell me more about that…” This is key to making jurors feel like they are having a conversation with you, not like you’re peppering them with questions and not really listening to the answers.

Don’t be wedded to the list of questions. If a juror tells you, “The hospital killed that poor child and deserved to be punished,” don’t go straight to the next question. The follow-up question should be along the lines of, “What did the plaintiff say to make you think that?” or “At what point in the trial did you start to believe that?”

Know when to stop talking. Listen carefully and get into a conversational rhythm so that you know when jurors are pausing to collect their thoughts instead of simply not talking because they’ve finished answering the question. Don’t feel the need to fill every empty space with another question. Some of the best answers will come after you’ve paused enough to let the juror feel you want to hear more of what they have to say.

Oftentimes the best answers will come at the end of an interview, when a rapport has been established and the juror is relaxed. Save your most delicate questions for points, like, “Was there really anything the defense could have done to change your mind after you heard the plaintiff’s opening?” or “Do you think sympathy for the plaintiff affected your verdict?”

Avoid making statements during an interview that remind a juror which side you’re on. They are more likely to answer candidly if they’re not worried about offending you. At the same time, try not to get frustrated at a juror’s comments or take their words personally. Even if you can’t see the logic in a juror’s perspective, the fact remains that they feel this way and it is your job to find out why.

Take a few extra minutes during each interview to ask questions that aren’t on your survey sheet but show the juror you’re genuinely interested in their lives. If they tell you they wanted the trial to finish quickly because they had to get back to their job, ask what they do for a living, even if you already know. Sometimes this also provokes further insight into their thinking – “I’ve been fired myself so I knew what this guy was going through.”

-Claire Luna

Giving the Big Bad Wolf a Friendly Face

This may come as a shock to you, but most of the companies that hire us aren’t typically viewed by jurors as the “warm and fuzzy” types. And you'd better believe the other side does everything they can to paint them as “greedy corporations,” "monstrous institutions," or the “big bad wolf” salivating as it prepares to devour yet another vulnerable plaintiff.

Most often, these descriptions of "profit-driven corporate behemoths" help to paint a David-and-Goliath struggle, pitting plaintiff vs. defendant in a battle with seemingly impossible odds.

What the other side tends to forget is that there are a lot of friendly faces behind that so-called behemoth. No matter how big the hospital or the company, the fact remains that the people who work there – especially in healthcare – chose their careers according to what they believed would help other people. Nurses, especially, certainly aren’t doing it for the money or the easy hours.

We encourage all of our clients to do everything possible to humanize the defendants, to show that they are just as vulnerable as the sympathetic family in the Day in the Life video. Pictures of smiling nurses in an opening statement PowerPoint and, even better, those same compassionate nurses sitting in the courtroom audience day after day help to make the adversarial plaintiff-defendant relationship about people vs. people rather than people vs. “The Man.”

Even more can be done when witnesses are on the stand. Asking why nurses love nursing, especially labor and delivery, has evoked some powerful responses: “I treat them all like my daughters.” The same goes for doctors, although it must be said that knowing these responses in advance is key. We still shudder a bit when we remember the ER doc who reported choosing medicine because “nothing else seemed that interesting.”

Jurors don’t want to hear about caregivers who went into medicine by default – they want to hear about a passion for patient care. Our experience has taught us that along with that enthusiasm for helping people, jurors also respond well to credentials, experience, and training.

During a trial we monitored last year, simply labeling the labor and delivery nurses as “Level III” instantly established a credibility the plaintiffs couldn’t tarnish – and believe me, they tried their hardest.

So we urge clients to make every effort to humanize your organization – no matter if it’s an insurance company, hospital, or even a major financial institution – and demonstrate that just like the plaintiffs are people with families and feelings and dreams, the people who work there - espeically those who provided care - are as well.

-Claire Luna

Professional Often Trumps Bombastic

Perhaps it’s too many episodes of Law and Order on their DVR, but it seems like some attorneys we’ve observed during the past few years of trial monitoring are taking their cues from the bellowing, bellicose trial lawyers from TV and film. But from what jurors have repeatedly told us, that style is oftentimes is a big turnoff.

Exit interviews we’ve conducted this year following trials in two very different jurisdictions –one of which was in a large, fast-paced jurisdiction, where one might assume jurors expect at least a little flash – revealed that not only do jurors notice screaming, excessive sarcasm, sotto voce asides, petty objections and witness badgering, most of the time they can’t stand it.

Consider the plaintiff’s attorney in one of the cases we monitored. We watched him badger nurse after nurse, prompting all five involved to cry on the stand. He thrived on disrespecting opposing counsel in front of the jury, at one point saying, after she objected to a leading question, “If you hate it so bad, how come you do it so much?”

While we developed an immediate aversion to him on the first day of trial, we’ll let the juror comments after the trial speak for themselves:

“Did you see me rolling my eyes at him? I tried to control myself, but he was just so horrible.”
“This is the epitome of a sleazy, weaselly lawyer.”
“That ‘why is everyone so stupid except for me’ mentality got really old. The little comments he made under his breath were really insulting to his professionalism.”

To a juror, no one could stand this guy.

We had the good fortune of working with lawyers who, in contrast, jurors described as “professional,” “efficient” and “courteous.” Don’t mistake these descriptors as synonyms for boring. On the contrary, jurors appreciate examinations that move along at a good clip, using well-chosen questions in conjunction with well-placed “a-ha” moments to establish or undermine credibility.

Not only is this approach consistently more appealing, jurors understand that bombastic lawyers consume a lot of courtroom time with irrelevant asides and argumentative, often repetitive lines of questioning. When jurors’ time is on the line, and they’re looking at the clock thinking about kids who need to be picked up or work that needs to be caught up on, they want every minute in that courtroom to be used effectively.

And as entertaining as the buildup to a “You can’t handle the truth” climax is in the movies, in real life, jurors are usually looking for something much more straightforward.

-Claire Luna

Trial Tip: The Details Matter

An Eagle Scout pin on a lawyer’s lapel.

A Day in the Life video briefly showing a Mercedes SUV in the garage of a plaintiff’s family claiming financial hardship.

The attorney whose objections are only sustained one time out of a dozen.

Jurors notice all of these things, and more. To them, what they observe and analyze in a courtroom is so much more than what the witnesses are saying on the stand. As their attention and focus spread beyond testimony and case facts, jurors’ observations of seemingly inconsequential details can be a powerful tool in shaping their opinions of the lawyers, parties involved, and the merits of the case itself.

Consider a recent five-week medical malpractice trial we monitored. As much as we noted about courtroom events and the jurors’ reactions, it turns out the jurors were just as attentive to the most minute details, including those described above.

Although they were quick to say during exit interviews that they didn’t arrive at a verdict based on any of those observations, it was clear that the lawyer with the Eagle Scout pin quickly gained credibility among the panel – and that his slightly unkempt suits stood in sharp contrast to the other side’s bespoke ensembles.

Also evident to these jurors was the fact the plaintiffs involved "weren’t hurting for money." In addition to the pricey SUV, jurors also noted the large house (and were critical that the plaintiff's young son with cerebral palsy had a room "barely bigger than a walk-in closet") and the father’s tendency to wear designer Polo shirts in the courtroom. “I kept a tally, and I saw that little horse every day,” one juror told us. “Those shirts aren’t cheap, so I didn’t think they should be crying poverty.”

One thing our clients learned during this trial was the importance of paying as much attention to detail as the jurors. After one expert was finished testifying, a gleaming black town car was waiting outside the courthouse to take him to the airport. Not a good way to connect with the jurors--especially the farmer who gawked as he puttered by in his battered 1970s pick-up truck.

Because strong case facts and concise, effective themes are the cornerstone of any good trial presentation, it's sometimes easy to overlook details. But jurors are watching, and consciously or not, their observations of the little things are helping to shape their impressions of the big picture.

-Claire Luna

Trial Tip: Don’t Make Jurors Do the Math

In our experience, simple numbers or statistics are some of the most effective ways for attorneys to make key points. But too often, lawyers use figures that force jurors to crunch the numbers and the point quickly loses impact.

For example, we work on a lot of medical malpractice cases involving premature babies. The way that doctors talk about gestation – 13 weeks, 25 weeks, 37 weeks – doesn’t make sense to the average juror unless they’re a recent parent. After conducting nationwide focus groups, we've learned that most jurors don’t even know that a full-term pregnancy is 37 weeks.

Therefore, we encourage attorneys to talk in terms in months. A baby born "three months early," as in a recent trial we monitored, paints a much clearer picture than one born at "28 weeks."

The same goes for a baby's weight. Premature babies are often categorized in grams, but most jurors hearing arguments on the fly don't have conversion calculators handy to decipher what "34 ounces" signifies. Don’t talk metrics – use the measurements people are most familiar with and describe a baby born at "two pounds, two ounces." The image is immediately clear: this is one tiny baby.

We recently monitored a trial about a baby exactly like this, born three months early and weighing two pounds, two ounces. When we interviewed jurors after the defense verdict was rendered, they said the main determinant in finding no causation (or negligence, for that matter) was that this baby was born so early, weighing so little, citing the "two pounds, two ounces" figure.

Our recommendation: Do the math for your jurors. A little conversion goes a long way when it comes to making a salient point.

-Claire Luna, Jury Impact Senior Analyst