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. 

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.

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

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…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

Jury Impact's 2009 Med-Mal Awards

The “fashionistas” are out and E!’s “Red Carpet” is back, and that can only mean one thing – Oscar season. So in the spirit of the festivities we’re presenting our own "2009 Med-Mal Awards!”

Last year, we conducted research in med-mal cases nationwide. Despite radical differences in fact patterns and jurisdiction, similar themes--for the plaintiff and defense--always seem to register. We see it time and again…jurors “classify” cases into a few categories. That means common themes emerge. So which themes were juror favorites in 2009?

First, our award for Most Popular Plaintiff Theme. And the nominees are:

Delays in Care
Communication Breakdowns
Not Enough Tests
High-Risk Patients Deserve a Higher Level of Care
The Splash Effect: when jurors apportion responsibility to everyone
because they perceive negligence on one party.

And the award for Most Popular Plaintiff Theme goes to…“The Splash Effect!” In a whopping 38% of cases, we saw “splash” in one form or another.

Next, our award for Most Resonant Defense Theme. And the nominees are:

Credible Alternate Causes
Inevitable Outcome
Moment-to-Moment Care
Personal Responsibility: either failing to take care of themselves
and/or for not communicating with caregivers.

And the award for Most Resonant Defense Theme goes to…“Inevitable Outcomes.” In a massive 56% of our cases last year, jurors expressed the opinion that “outcomes were inevitable” because a pre-existing or rare condition prevented caregivers from effectively diagnosing or treating the patient.

Uh-oh, the band is starting to play. How close was the vote? To find out, or for more information about themes that resonate and the language we use to address them, please don't hesitate to contact us.

-Stephen Duffy

Board Certification

During a recent focus group involving hospital credentialing, 18 of 24 jurors said they believe doctors must be board certified to practice medicine.

Based on the frequency of similar responses, we began surveying on the issue last year during groups involving medical malpractice. So far we’ve asked 487 jurors: “Do you think your primary care doctor is board certified?”

Of those polled, 18.9% said “I don’t know” and an astounding 80.3% said “yes.” Perhaps most telling is that only four out of 487 said “no.”

This means that a vast majority of jurors from all regions, backgrounds, ethnicities, genders and incomes assume their doctor is board certified. Our experience tells us this confusion results from an assumption that board certification and medical licensing are one and the same.

Naturally, the question arises: if a doctor involved in a lawsuit is not board certified, how do you discuss the issue? Conversely, if a doctor is board certified, how do you use juror predispositions to your advantage?

Second question first – when doctors are board certified, you need to talk about it. Play to juror predispositions and highlight doctor education, training, experience, as well as the dedication it takes to pass board exams and establish oneself in a specialty. By playing to juror perceptions that doctors should be board certified (whether actually required or not), you establish and bolster their credibility.

Now to the tougher question where there’s no easy answer. When trying a case involving a doctor who is not board certified, you must recognize that jurors are going to perceive it as a net negative. We have tested many ways to address this issue during research, with limited success.

With that said, a lack of board certification makes contextualizing the rest of the doctor’s experience all the more important. We suggest spending considerable time talking about the education they do have, including the number of surgeries or other relevant procedures performed, specific qualifications, fellowships completed, and other credentials. Highlighting that experience can somewhat mitigate the negative biases seen in the above juror statistic.

During the coming year, we’re adding new questions to our Depth Charts to provide you with more quantitative data. If you have any suggestions for juror questions or things you’d like to know specifically, let us know. We’d love to hear them.

-Todd Fairbanks

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.

The Dials Don't Lie

We always talk about the importance of third-party credibility in trial. Now watch us use it.

We recently conducted research for a bad faith case involving a significant jury award and an alleged failure to settle the claim beforehand. The plaintiff says the defendant insurer should have known a costly verdict was probable and ponied up more money to settle early. More specifically, the plaintiff says the defendant would have known about this risk if they had done a focus group or mock trial.

During our research, an argument testing the validity of focus groups as a method of assessing a case’s potential was the highest scoring among either plaintiff or defendant statements, with a score of 83.5. If you’ve seen our Instant Response dials in action, you know that's a "home run" score.

Knowing the potential for a multi-million-dollar verdict in this county, [the insurer] should have engaged in jury research through a focus group or mock trial to determine what the potential was for a large verdict. Instead, they went into the trial “blind” and unprepared – placing the [client’s] reputation and resources in an even more vulnerable position.

AVERAGE ARGUMENT SCORE: 83.5

Now you don't have to rely only on our (admittedly biased) opinion that focus groups are a good thing. Jurors think so, too.

Who Do You Trust?

In our 2009 medical malpractice research, we’ve been asking jurors who they trust more, doctors or nurses. The results are eye-opening:

Of the hundreds of jurors we interviewed nationwide, 63% of those who trust nurses more supported the plaintiff.

On the other hand, only 43% of those who trust doctors more end up siding with the plaintiff.

Jurors who trust doctors and nurses “the same” backed the plaintiff even less frequently—40%.

Incorporating this question into voir dire efforts could “red flag” jurors naturally predisposed to support plaintiffs in medmal litigation.

Contact us if you are interested in hearing more about this or other findings from our juror database. Or, if you would like a full, in-person presentation of our findings, let us know.

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

ARTICLE: As Jurors Turn to Web, Mistrials Are Popping Up

Remember when we said technologically-proficient, web-savvy people tend to make worse jurors?

Well, by way of the New York Times, here's another example:

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment against it after a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded that the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a “big announcement” was coming Monday. But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.

Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based only on the facts that the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web, or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.

A juror on a lunch or bathroom break can find out many details about a case. Wikipedia can help explain the technology underlying a patent claim or medical condition, Google Maps can show how long it might take to drive from point A to point B, and news sites can write about a criminal defendant, his lawyers or expert witnesses.

“It’s really impossible to control it,” said Douglas L. Keene, president of the American Society of Trial Consultants.

...

The technological landscape has changed so much that today’s judge, Mr. Keene said, “has to explain why this is crucial, and not just go through boilerplate instructions.” And, he said, enforcement goes beyond what the judge can do, noting that “it’s up to juror 11 to make sure juror 12 stays in line.”

It does not always work out that way. Seth A. McDowell, a data support specialist who lives in Albuquerque and works for a financial advising firm, said he was serving on a jury last year when another juror admitted doing a Google search on the defendant, even though she acknowledged that she was not supposed to do so. She said she did not find anything, Mr. McDowell said.

Mr. McDowell, 35, said he thought about telling the judge, but decided against it. None of the other jurors did, either. Now, he said, after a bit of soul searching, he feels he might have made the wrong choice. But he remains somewhat torn.

Here is my favorite part:

“I don’t know,” he said. “If everybody did the right thing, the trial, which took two days, would have gone on for another bazillion years.”

Forget about the law, America's Next Top Model is on tonight! And we end on this gem:

Mr. McDowell said he planned to attend law school in the fall.

Off to a great start, pal!



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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

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

Lord Justice: Web-savvy young make bad jurors

This is an aspect of jury selection we frequently discuss with our clients: Younger, web-proficient jurors tend to make worse, less receptive jurors.

Young people brought up with the Internet are not used to listening for long periods and would not make good jurors, according to the most senior judge in England and Wales.

By Christopher Hope, Home Affairs Editor - Telegraph

In a speech, Lord Judge of Draycote, the Lord Chief Justice, said it might be better to present information for young jurors on screens because that is how they were used to digesting information.

He said: "Most are technologically proficient. Many get much information from the Internet. They consult and refer to it. They are not listening. They are reading. "One potential problem is whether, learning as they do in this way, they will be accustomed, as we were, to listening for prolonged periods.

"Even if they have the ability to endure hours and days of sitting listening, how long would it be before some ask for the information on which they have to make their decision to be provided in forms which adapt to modern technology?

He said: "Our system of jury trials depends on 12 good men and women and true coming to court and listening to the case. Orality is the crucial ingredient of the adversarial system.

"Witnesses speak and answer questions. Counsel speak and address the jury. Judges speak and give directions."

Currently information is provided on screens to jurors, such as in complex fraud trials, but "not without difficulty and with great expense", he said.

Younger jurors, sometimes called the MTV Generation, have been brought up on 24-hour news, frenetic action movies, incessant advertising, feverish competition for their attention and disposable income, and more consumer choices than ever imagined. Call them the IGIG, or Instant Gratification Internet Generation.

These jurors, when they need an answer to a question, acquire the information as quickly as they can type into Google or Wikipedia. When I was growing up and needed the answer to who the 23rd Vice President was (Adlai Stevenson--I just Googled it), it was essentially the Dewey Decimal System or nothing.

Anyhow, it's not surprising that jurors accustomed to obtaining information and consumer goods in mere seconds, could become impatient with a judicial system set up to slowly introduce information from both sides over the course of weeks.

Although the article does not explore this, shorter attention spans can also be dangerous because these jurors--accustomed to quickly forming opinions about complex issues based on soundbites and 3-minute news pieces--also tend to quickly take a stand on their trial verdict, before opening arguments conclude. This is a concern with jurors of all ages, genders and races, but in our experience is more prevalent among young, attention span-challenged jurors.

So how do you find out if a juror is web-savvy? In our experience, the simplest is asking whether they belong to social-networking sites, such as Facebook or MySpace, or if they Twitter or maintain a personal blog. In addition to being an indication of web-sophistication, obtaining this information can also provide insight into how beneficial or unfavorable that juror could be.

If a juror has a web page on a social networking site, it allows our jury selection team to look them up and glean basic information not included in (or removed by opposing counsel) the juror questionnaire. Jurors may have revealed certain information about themselves on their web pages related to lifestyle, personal outlook, or political views. Even if the page is set to "Private," at the very least confirming a juror has a page can be an indication they are more web-savvy than those without.

Lastly, this topic highlights the importance of presenting all jurors with simple, effective visual presentations in addition to simple, effective themes that play to their predispositions and IGIG tendencies.

CLICK HERE FOR THE ENTIRE ARTICLE, YOU WEB-SAVVY YOUNGSTER

You Don't Say...

In a recent article, In U.S., Partisan Expert Witnesses Frustrate Many, The New York Times explores a subject that we frequently discuss with our clients: The tendency for plaintiff and defense expert witnesses to "cancel each other out."

Judge Denver D. Dillard was trying to decide whether a slow-witted Iowa man accused of acting as a drug mule was competent to stand trial. But the conclusions of the two psychologists who gave expert testimony in the case, Judge Dillard said, were “polar opposites.”

One expert, who had been testifying for defendants for 20 years, said the accused, Timothy M. Wilkins, was mentally retarded and did not understand what was happening to him. Mr. Wilkins’s verbal I.Q. was 58, the defense expert said.

The prosecution expert, who had testified for the state more than 200 times, said that Mr. Wilkins’s verbal I.Q. was 88, far above the usual cutoffs for mental retardation, and that he was perfectly competent to stand trial.

Judge Dillard, of the Johnson County District Court in Iowa City, did what American
judges and juries often do after hearing from dueling experts: he threw up his hands. The two experts were biased in favor of the parties who employed them, the judge said, and they had given predictable testimony. “The two sides have canceled each other out,” Judge Dillard wrote in 2005, refusing to accept either expert’s conclusion and complaining that “no funding mechanism exists for the court to appoint an expert.”

This really shouldn't come as much of a surprise. Most jurors are fairly adept at following the money and forming common sense conclusions about bias.

In most instances, expert witnesses for both sides boast credentials in education, training, and relevant experience--with neither being more credible than the other (on paper at least). We find that jurors, driven by the common sense perception experts will cater testimony to support the side signing their check, often find that paid experts don't carry much sway. Jurors instead tend to focus on personality traits, whether the witness educates jurors in "plain english," and even tie colors and mannerisms when assigning credibility.

I found this amusing. The expert witness for the state provided a telling quote describing the experience:

“After you come out of court,” Dr. Welsh said, “you feel like you need a shower. They’re asking you to be certain of things you can’t be certain of.”

Another colorful quote:

“To put it bluntly, in many professions, service as an expert witness is not considered honest work,” Samuel R. Gross, a law professor at the University of Michigan, wrote in the Wisconsin Law Review. “The contempt of lawyers and judges for experts is famous. They regularly describe expert witnesses as prostitutes.”

And another zinger:

Martin Belli, the famed trial lawyer, endorsed this view. “If I got myself an impartial witness,” he once said, “I’d think I was wasting my money.”

This article strongly supports a sentiment we often share with clients, especially in medical malpractice cases: Expert witnesses mainly serve to support a jurors' initial perception of the case facts--and rarely influence jurors to switch to the other side.

Therefore, tapping into juror predispositions--the biases they are likely to walk into the courtroom with--and shaping expert testimony to conform to those preloads, is where legal teams should focus most of their energy. Relying on an expert witness, regardless of their impressive credentials or background, to turn the tides of juror sentiment, is fraught with risks given the likelihood for opposing witnesses to "cancel each other out."

Read the entire article...