Simple Biases Affecting Verdicts

A recent look into juror perceptions relating to lawsuits and insurance rates yielded some interesting trends. Nationwide data collected from our focus group exercises shows 40% of Americans believe lawsuits are “significantly” contributing to rising insurance costs, while 54% say “somewhat” contributing and 5.5% say “not at all.”

Examining how various demographics play into these perceptions also revealed a notable pattern when age was considered. The trend lines show jurors becoming increasingly aware of the impact of verdicts on insurance costs as they advance in years. This is likely because older jurors are far more likely to be sensitive to insurance costs than younger jurors.


From our perspective, the most remarkable trend is how these perceptions correlate with overall verdicts. Jurors who identified lawsuits as having a “significant” impact on rising insurance costs are 64% more likely to side with the defense, and jurors who choose “not at all” are 57% more likely to side with the plaintiff.


These figures illustrate just how strongly biases can impact and predict juror outcomes. Call us if we can help you uncover those critical biases that will shape strategy for your next trial.

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.

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Your Juror is on the Net, Or Will Be Soon

Want to know more about the jurors hearing your case? Chances are, you can read about them online. National data from our focus groups show the number of jurors reporting they belong to some kind of social networking site has grown steadily since we began tracking in 2008.
In addition, the average age of those reporting an online social presence is increasing. In 2008, just 14% of jurors older than 40 years reported belonging to an online social site. So far, during just the first half of 2010, 40% of those older than 40 report having a Facebook or MySpace page, or similar online social network.

Further, the potential sources for jurors to “express” themselves or provide critical personal information continues to grow, as we have seen with sites like Twitter and LinkedIn.

Remember, researching jurors online is not just valuable for jury selection. Understanding a juror’s social priorities and language traits can help you better tailor themes, arguments, and words to fit your jury panel’s world views.

Call us if you’d like to know more.

The Right Words in the Right Venue

True Story. We were listening to the radio the other day as a German bakery owner hoping to entice new customers explained in his thick accent that he was a “master-baker.” We laughed and then decided to remind everyone of the importance of choosing the right words in the right venue.

Words create emotions and build context for the audience. And as you probably know, choosing the right words and using them to develop a context that benefits your case is the difference between communicating your point persuasively and communicating something very, very different.

We recently fielded a survey in which jurors were asked what attributes make a good nurse. Respondents were offered a range of choices including “advanced specialty training,” “responds quickly,” and “at least five years experience.”

And what was the highest-scoring attribute by a 2:1 margin? “A kind, compassionate bedside manner.”

This response mirrors our national research findings, where jurors consistently cite “compassionate," “caring” and “spends more time with patients” as the qualities they most desire in a nurse. Using language that evokes positive perceptions of a nurse or a witness early in trial can have a tremendous effect on how jurors filter and envision the details of an event.

Next time you’re in trial, use the emotional words that will play to predispositions about what a juror wants in a caregiver or other witnesses. It’ll paint a positive picture in jurors’ minds. Call us if we can help you choose the right words for your next trial.

Things That Make You Go Hmmm...

Thinking about the 12 Days of Christmas reminds us of one of the most effective argument strategies we see: Use a couple of numbers.

Magazines are well aware of this approach. Just look at the monthly covers trumpeting lists such as “Top 100 colleges,” “400 richest Americans,” and the women’s magazine classic, “Seven Ways to Please Your Man!”

Recently we watched jurors deliberate a case in which a doctor failed to diagnose an extremely rare disease in an obese patient. The patient’s presenting symptoms: moderate muscle pain and high blood pressure. The doctor assumed a pulled muscle and too many Big Macs, and said to come back if the pain persisted. The true pain source turned out to be an extremely rare, deadly bacteria.

During discussions, plaintiff-leaning jurors zeroed in on the prevailing predisposition that “doctors are rushed and don’t spend enough time with patients.” Unfortunately, the initial pushback by defense-leaning jurors was weak: “Doctors can’t always diagnose these rare conditions right away.” The problem here was that plaintiff jurors simply could not understand just how little information the patient’s symptoms provided the doctor.

Adding a number helped change this. Jurors were introduced to some statistics: There are approximately 5,100 potential diagnoses for the combined symptoms of pain and high blood pressure. During deliberations, the defense-leaning jurors effectively adopted this number as their theme and supported it with another number: The disease occurs in no more than one in every 305,000 people.

Happy holidays and the very best wishes for the New Year.

Poll: Apparent Agency

Agency claims are some of the most difficult to defend in medical malpractice work, due to jurors’ predisposition that if a medical mistake happens inside a hospital, then the hospital is ultimately responsible.

We tried to quantify this perception in a recent national poll, asking 1,001 Americans whether they agree or disagree with the following statement:

If a medical mistake occurs in a hospital, then the hospital is responsible for everything that happens under its roof. The results show that seven out of 10 jurors are likely to assume from the outset that a hospital is responsible for the actions of any and all doctors practicing within the hospital walls.

STRONGLY AGREE: 47.3%
SOMEWHAT AGREE: 28.1%
SOMEWHAT DISAGREE: 11.2%
STRONGLY DISAGREE: 9.2%
DON’T KNOW/REFUSE: 4.2%

In addition, these perceptions of blanket responsibility increase as jurors' education and household income levels decreased. In fact, 63% of jurors with less than a high school education and 57% of those with only a high school education strongly agreed, compared to 46% of college graduates and 40% of those with post-graduate study or degrees. Finally, 64%of those with household incomes of less than $30,000 strongly agreed, while just 36% of those with household incomes of more than $100,000 strongly agreed.

Overcoming the predisposition is possible, but as you can see , getting the right jurors--and the right message--is key.

*The poll, conducted from July 24-27, surveyed 1,001 U.S. residents older than 18 and has a 3.1% margin of error.

ARTICLE: 'I Pity the Fool': Mr. T on Jury Duty

Makes me wish I lived in Chicago:

Called for jury duty at Cook County Criminal Court, Mr. T didn't disappoint Monday.

The "Rocky III" and "A-Team" star told stories during down time, autographed books and posed for pictures with other potential jurors, county employees -- and the family of the defendant in the case he could have ended up hearing.

"I enjoy doing my civic duty along with my friends I've met," said the Chicago-born actor, 56, motioning to the 20-plus potential jurors who'd been in the room with him for about five hours. "I enjoyed the people that were around me.

"It's not about 'The A-Team;' it's the J-Team -- the jury team."

Ultimately Judge Charles P. Burns dismissed Mr. T and others at 4:32 p.m. when a jury was seated in the drug case.

...

"You've got to testify! Tell somebody about it. God is good!" he told an admirer as he tried to leave the building. "I pity the fool that don't get it."

The first at the county building to recognize him as a celebrity was the daughter of the defendant in the case.

...

She said she didn't know why Mr.T didn't land on the jury.

"My mom would have picked him," she said.

...

There was no bad attitude on the part of the actor regarding jury duty.

"If you're innocent, I'm your best man," he said. "But if you're guilty, I pity that fool."

If the defendant’s family had not recognized Mr. T from the outset, we would have added the following section to our standard juror questionnaire to suss him out:

1. How do you feel about fools? (circle one)
a. I think they're great
b. I have no opinion either way
c. I pity them

2. What is the best way to enter a room? (circle one)
a. Through a door
b. Through a window
c. Through a concrete wall, in a van, covered in gold chains

3. If someone said, "You don't look so bad to me" what would you most likely say in return? (circle one)
a. "You are correct, sir."
b. "I assure you, I have the potential to be quite bad."
c. "What did you say to me paper champion?"

4. If Rocky Balboa was to fight Clubber Lang, what would be your prediction for the fight? (circle one)
a. Wait, who is fighting who?
b. A draw
c. PAAAAAAAIN



CLICK HERE FOR THE ENTIRE ARTICLE...

Language Matters

According to a recent Rasmussen Poll, 53% of Americans believe "capitalism" is better than "socialism."

The telephone survey also revealed that 20% disagree and say socialism is better. Twenty seven percent couldn't take a stand if they were buried ankle-deep in concre--ERRR...were not sure which is better.

Here are some demographic details:

Adults under 30 are essentially evenly divided: 37% prefer capitalism, 33% socialism, and 30% are undecided. Thirty-somethings are a bit more supportive of the free-enterprise approach with 49% for capitalism and 26% for socialism. Adults over 40 strongly favor capitalism, and just 13% of those older Americans believe socialism is better.

Investors by a 5-to-1 margin choose capitalism. As for those who do not invest, 40% say capitalism is better while 25% prefer socialism.

There is a partisan gap as well. Republicans - by an 11-to-1 margin - favor capitalism. Democrats are much more closely divided: Just 39% say capitalism is better while 30% prefer socialism. As for those not affiliated with either major political party, 48% say capitalism is best, and 21% opt for socialism.

The question posed by Rasmussen Reports did not define either capitalism or socialism.

But here's the most interesting part:

It is interesting to compare the new results to an earlier survey in which 70% of Americans prefer a free-market economy. The fact that a “free-market economy” attracts substantially more support than “capitalism” may suggest some skepticism about whether capitalism in the United States today relies on free markets. (emphasis added)

See how a slightly different language choice can have a significantly different result? Although I disagree with their conclusion ("free-market economy" just sounds better than "capitalism," which has had decades of negative connotations heaped upon it), this is a clear example of what we always preach to our clients:

Language matters.

2008 Jury Research Findings: Tell the Right Story, Right Away

If we’ve worked together you’ve heard us say: Jurors make up their minds quickly, and then spend the rest of the trial trying to prove that their initial decision was right. Now, we’ve got proof.

Our focus group methodology tracks three key votes – one after jurors have reviewed a basic fact pattern, another after they’ve heard the plaintiff’s arguments, and a third after hearing the defense.

At the end of 2008, we took a “30,000-foot” look at these votes by entering into our polling software the data from approximately 1,000 juror interviews. Here’s what the data revealed:

Eighty-five percent of jurors delivered the same verdict at the close of the focus group session as they did in their first vote. This meant that no matter what the expert testimony was and no matter what arguments they heard, 85 percent of respondents latched onto arguments and testimony that justified their initial biases about the case.

This doesn’t mean jurors can’t be persuaded from their initial impressions. They can. It also doesn’t mean that expert testimony isn’t important. It is.

What it does mean is that your opening is the most important part of your case…and you need to tell the right story, right away. Get your best, strongest arguments out there immediately…and don’t wait until your closing. By then, most jurors have made up their minds.

Give us a call if you’d like to discuss...we would be happy to share the additional findings from our 2008 data review. If you would like a full presentation of our analysis, let us know.

-Jeff Harrelson