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.

Keeping Google Outside the Jury Box

Trial jurors are constantly admonished to only consider evidence they hear in the courtroom from the witness stand and exhibits, but this doesn't match up with many Americans' attitudes about what is acceptable behavior for a juror, according to a recent survey conducted by our partner company, Surveys on the Go.

In fact, nearly three-quarters of Americans believe it is acceptable for empaneled jurors to conduct Internet research about legal, medical or technical terms or concepts they hear in court, and 23 percent believe it is acceptable for jurors to research details of the case they are judging, according to the survey of 799 potential jurors nationwide.

As we have observed during jury research and actual trials around the country, jurors allowed to educate themselves can be their worst teachers, looking for information that seeks to confirm what may be inaccurate assumptions that could help the other side.

This underscores what savvy trial lawyers already know - in an era of smartphones and near-universal Internet access, it is more important than ever for judges to emphasize (and re-emphasize) that it's never OK for jurors to research anything related to the case, no matter how innocuous they think it is.

If you would like to talk about how to apply these findings to one of your cases, please call us at 714.754.1010. Happy holidays and Happy New Year from the Jury Impact team! We hope to see all of you in 2012.

Hitting the Experience Sweet Spot

When it comes to selecting caregivers, it turns out neither
Doogie Howser prodigies nor elder statesmen are a juror’s ideal.
We fielded a survey earlier this month and asked the nearly 800
respondents to tell us the “ideal number” of years a doctor or
nurse should have under his or her belt.

It turns out the sweet spot is six to 10 years, with 55 percent of
participants choosing this as the experience level they want in
their healthcare provider. Eleven to 20 years of experience fared
almost as well, with 34 percent of respondents wanting a doctor
with this number of years in the field.

To us, the outliers were the most interesting aspect of this survey. While only four percent of respondents preferred five or fewer years of experience, only six percent wanted a healthcare provider with 20 to 30 years. Less than two percent believed 30 or more years was the ideal.

These “sweet spot” biases uncovered in the survey are consistent
with those we have observed jurors apply in the courtroom.
Exit interviews conducted over the years have indicated the most
effective experts typically are those who jurors want astheir own
doctor or nurse. Just as jurors often have a difficult time trusting
an unseasoned “rookie,” so too are they skeptical of a doctor with “too much experience” and a potentially obsolete education. We have also heard the “arrogance” often associated with doctors is believed to be magnified among the oldest in the field, who jurors consider to be “too stubborn” to consider the latest research, medical advances or differing opinions when providing their opinions.

If you are in the position of presenting a highly experienced – or
the opposite – witness at trial, we suggest making your weakness
your strength. For the newbie, project energy and focus on
the fact he or she knows the latest in medical advances. For
the veteran, discuss that person’s high level of experience, the
“hundreds” or “thousands” of applicable procedures that person
has performed, and review any and all continuing education that person has received to ensure their knowledge base is relevant.

If you would like to talk about how to apply these findings to one
of your cases, 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

"Right Track"/"Wrong Track" -- Which is the Better Juror?

Are juror perceptions about America’s direction predictive of how
they might decide a case? The short answer is "yes.” After
792 interviews it’s clear — jurors who think the country is on the
wrong track demonstrate a stronger likelihood of voting for the
defense.

Over the past few years, our voter polls have mirrored national
polls which show the country’s citizens increasingly pessimistic
about our nation’s future (“Is the country on the right track, or
off on the wrong track?”). We wanted to see how these trends
were affecting juror verdicts — so we took a look at our data
from the past year. Overall, our jury samples show the same
downward trend, with respondents increasingly perceiving the
country on the wrong track.

Surprisingly however, our data demonstrated a strong
correlation between juror-respondents who believed the
country was on the “wrong track” and jurors siding with
the defense. In fact, 60% of jurors who reported
believing the country is on the“wrong track” also sided
with the defense during jury exercises. Those who
selected “right track” were evenly divided among
plaintiff and defense verdicts.

Do you think the United States is on the Right Track or Wrong Track?


So what do we do with that information? Well, if you’re stuck
on whom to eliminate (and working with the defense) — odds
are you should select the “wrong track” juror. It’ll increase
your odds of finding the juror mindset most predisposed to
understanding your side of the story. Call us if you’d like an
evaluation of your next case.