Fairness vs. The Law

Despite the hours attorneys spend arguing and refining jury instructions before and during trial, it turns out that more often than not, fairness matters more than the law to deliberating jurors.

A recent case in Los Angeles, a plaintiff-oriented jurisdiction by any measure, shows how this can play out in the courtroom. A tenant sued her landlord – Los Angeles Clippers owner and real-estate mogul Donald Sterling – over personal property destroyed in a fire. There were allegations of distasteful conduct by the apartment manager and employees after the fire, such as asking the tenant to pay the next month’s rent or face a report to a credit agency, and the plaintiff’s attorney developed a theme that all the landlord cared about was money.

While negligent, it's difficult to understand how jurors found this conduct rose to the extraordinarily high legal threshold required to award punitive damages, especially to the tune of $15 million.  The judge agreed – and has since overturned the December verdict.

Although there are likely many factors behind the award, including the defendant’s wealth and the nearly two-thirds of Angelinos who rent rather than own, the fact is jurors allowed their perceptions of what was “fair” and “right” to override specific court instructions about the burden for punitive damages, and awarded an amount nearly 50 percent higher than what the plaintiff’s lawyer requested. 

In a recent national survey we conducted of 409 participants, more than 40 percent flat-out admitted their sense of fairness, rather than the law, would guide their decisions.

So even if you believe the facts are strongly on your side, how do you approach this juror propensity to ignore the law in favor of their version of “fairness”?

First, understanding this widespread predisposition can help you and your team evaluate whether or not to take a case to trial in the first place.  If you have a case where jurors are likely to seek justice for the plaintiff – regardless of the plaintiff’s ability to prove their case – the exposure could quickly escalate once it makes its way into the jury’s hands.
 

Second, once at trial it is important not to assume a judge’s (sometimes lengthy and confusing) instructions will be enough.  In addition to arming defense-minded jurors with reminders about a jury’s obligations under the law, we believe counsel should acknowledge the juror potential to gravitate toward fairness and play to this by telling the defense’s story from the perspective of fairness.

If you have an upcoming case that you would like to discuss, please don’t hesitate to call us at 714.754.1010.
 

Beyond the focus group: Our other services

Hybrid Process

Although many of you are likely familiar with our proprietary focus group format, some clients opt for a “hybrid” approach to combine the interactive aspects of focus groups with the attorney presentation aspects of mock trials.

This is a popular research option because the juror discussions reveal the strongest themes, language and arguments for both sides, and the mock-trial component of the exercise allows claims managers and attorneys to evaluate and hone the presentations well before trial.

Online Research 

We frequently hear from clients that they have a tough case coming up, but the exposure just isn’t high enough to merit focus group research.  These same clients are surprised to learn that for years we’ve been conducting cost-effective online research to provide high-quality feedback for lower-exposure cases.

By presenting the case facts, arguments for both sides, and evidence and demonstratives to jurors online, it not only allows you to gain similar real-time feedback as in a focus group, but it saves on facility and travel costs.

Notably, this process allows us to reach a larger pool of respondents than a traditional focus group – with a minimum of 35 online participants providing written feedback, argument ratings, witness evaluations, pertinent case questions and language and thematic suggestions.  We conduct individual interviews with at least 10 percent of respondents to dig deeper and “push back” to get the same kind of insight you expect from our live focus groups. 

Other Services 

Jury Impact staff assists with jury selection and trial monitoring for dozens of trials every year.  Our seasoned analysts have the resources and savvy to provide on-the-spot advice on your most and least troubling jurors as well as how to tailor the defense’s message to the selected jurors.

In addition, with former news reporters on staff, our exit interview process can provide valuable insight into the mindsets behind jurors’ verdicts.  These insights can be applied to future cases once you find out what worked – and what didn’t. 

The “Under Their Roof” Bias

The juror bias that an employer should be held accountable for everything that happens "under its roof” is well known.  But what about when a “rogue” employee does something completely outside the scope of their job, such as a nurse who cuts PICC lines or a park employee who falsifies maintenance records, to potentially devastating effect?  Do jurors apply the same predisposition to hold employers responsible for these unforeseeable acts? 

We recently conducted a national survey for a group of institutional clients to assess juror attitudes toward lawsuits. Nearly 82 percent of the 409 participants said they believe the basic employer/employee relationship creates liability for a hospital – even if the employee’s acts were outside the scope of their duties, or outside the employer's supervisory powers. 

If a hospital employee does something negligent that is clearly not part of their job duties, such as falsifying records or sabotaging equipment, the hospital should be held responsible as their employer.

Some of you might remember the “Angel of Death” cases (nurses Beverley Allitt and Kristen Gilbert) in the 1990s.  In those cases, the motives for their horrific acts still aren’t clear, significantly hampering attempts to establish foreseeability.  In other words, if even after criminal conviction the perpetrators still can’t explain their heinous actions, then how is it reasonable to expect their employer to predict, much less prevent, those actions?

 

However, even jurors convinced of human beings’ unpredictability can still find that the employer, since these acts occurred under its supervision, is responsible.  We have consistently found that once the employee’s crimes are brought to light, jurors already predisposed to believe employers are responsible for employee actions simply look backward for “warning signs” the employer might have had evidence this activity was somehow “sanctioned," or indication the employer "turned a blind eye."

This essentially places the burden of proof on the defendant, highlighting the importance of going on the offensive and explaining to jurors protocols and steps taken during the hiring process, such as background checks.  Performance evaluations and co-worker testimony – even if not stellar or particularly glowing – can help establish the employer’s due diligence before the employee went rogue, as well as reinforce the difficulty in predicting bizarre, irrational acts of otherwise competent workers without any documented red flags.

Also, we’ve found through focus group research that the most effective way to separate the individual’s acts from the assumed employee/employee liability relationship is to focus on the randomness of the actions and the unpredictability of human behavior.

Finally, it is helpful to remind jurors the rogue employee has already been, or soon will be, judged in a criminal case and brought to justice.  This can mitigate jurors’ desire to ensure – given the absence of the employee at a civil trial – that “someone” is held accountable (usually the defendant employer present at trial).

If you have an upcoming case that you would like to discuss – regardless of the topic – please don’t hesitate to call us at 714.754.1010. 

Beyond the focus group: Our other services

Hybrid Process 
Although many of you are likely familiar with our proprietary focus group format, some clients opt for a “hybrid” approach to combine the interactive aspects of focus groups with the attorney presentation aspects of mock trials.

This is a popular research option because the juror discussions reveal the strongest themes, language and arguments for both sides, and the mock-trial component of the exercise allows claims managers and attorneys to evaluate and hone the presentations well before trial.

Online Research 
We frequently hear from clients that they have a tough case coming up, but the exposure just isn’t high enough to merit focus group research.  These same clients are surprised to learn that for years we’ve been conducting cost-effective online research to provide high-quality feedback for lower-exposure cases.

By presenting the case facts, arguments for both sides, and evidence and demonstratives to jurors online, it not only allows you to gain similar real-time feedback as in a focus group, but it saves on facility and travel costs. 

Notably, this process allows us to reach a larger pool of respondents than a traditional focus group – with a minimum of 35 online participants providing written feedback, argument ratings, witness evaluations, pertinent case questions and language and thematic suggestions.  We conduct individual interviews with at least 10 percent of respondents to dig deeper and “push back” to get the same kind of insight you expect from our live focus groups. 

Other Services 
Jury Impact staff assists with jury selection and trial monitoring for dozens of trials every year.  Our seasoned analysts have the resources and savvy to provide on-the-spot advice on your most and least troubling jurors as well as how to tailor the defense’s message to the selected jurors.

In addition, with former reporters on staff, our exit interview process can provide valuable insight into the mindsets behind jurors’ verdicts.  These insights can be applied to future cases once you find out what worked – and what didn’t. 

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.

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.