Connect with Jurors Fast by Putting Your Best Foot Forward

Real estate agents know the first photo of a home for sale has to be an eye-catcher or the buyer will never get to selling points such as the granite countertops or nearby Blue Ribbon School.  A recent Wall Street Journal article found an astounding 95 percent of homebuyers viewing online listings looked at the first photo (typically of the home’s exterior) for 20 seconds – more than a third of the total average time spent looking at all photos – and after that their eyes tended to meander all over the screen with varying degrees of attention. 

By researching how homebuyers interact with Internet listings, real estate professionals are able to better understand the importance of leading off with the most effective photo to engage buyers.  This principle of putting your best foot forward applies to jury research as well.

Regardless of the product – real estate, new types of toothpaste or your side of the story in a civil trial – the article highlights the importance of first understanding how your audience will view your product (in a trial context, the key language, witnesses, themes and  arguments of the case), and then presenting your most compelling information up front to quickly connect with jurors.

For example, when we conduct witness preparation sessions one of the first steps is to get the witness talking about why they got into their line of work in the first place, and some of their most positive experiences.  Years ago, while an anxious witness was telling us about her nursing background, she mentioned as an aside that she was “hand-picked” by a doctor to be present during the deliveries of his own children – a compelling fact that might not have come up naturally during direct examination (and especially cross).

When our team pointed out the potential significance of this information to a jury – practically a throwaway line as far as she was concerned – she not only gained more confidence in her testimony, but it opened other avenues of questioning that led to her saying she got into nursing to “be there for that miracle” – a moving statement that came out organically and poignantly.

At trial, armed with newfound confidence and a mindful attorney who added these humanizing types of questions early during direct examination, this formerly nervous and reticent nurse was poised, confident and made an immediate – and extremely positive – impression on the jury.

Whether through conducting focus groups, surveys, witness preparation or online research, we always recommend taking steps to learn about the jurors in your particular jurisdiction, and uncover what they believe is your strongest, most sympathetic position.  Their candid feedback allows you to lead with the most effective themes and language to connect right away, and ultimately arm your advocates in the deliberation room.

If you have an upcoming case that could benefit from research, please feel free to call us at 714.754.1010 and we would be happy to discuss your goals and how our services can help you and your clients.

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 features 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 regarding 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.

Next-Generation Trial Research – Quickly Quantifying Crucial Aspects of Your Case

We’ve recently had several clients with fast-approaching trials who wanted real data, really quickly, about juror reactions to crucial aspects of their cases to assist in profiling their ideal – and less than ideal – jurors.  Using a proprietary survey technology developed by Jury Impact sister company M4 Research, we were able to provide these clients with fast, cost-effective, quantitative and statistically reliable answers. 

In our past research and trial experience, we have often found that jurors’ views about a case involving complicated issues and thousands of pages of documents ultimately come down to how they feel about one or two simple questions.  For some cases, when there simply isn’t time to do research or a key aspect of the case has changed since the focus groups or online survey, it makes sense to conduct basic quantitative research by putting those issues in front of a large panel of potential jurors.  

In the example below, we surveyed more than 4,000 jurors about a fundamentally important issue to a case – and had complete results within an hour.  

We not only provided topline results for how panelists answered the question, but we parsed the results demographically so the clients could see how different groups answered.  The breakdown: white and Asian-American jurors were the least likely to find the hospital responsible for the nurse’s actions, and African-American and Hispanic jurors were the most likely to hold the hospital accountable.

Results can also be broken down by education, income, age, gender, military service – and any other demographic variable incorporated into the survey.

We’ve used this quantitative survey approach several times so far, allowing clients to cost effectively poll thousands of potential jurors with up to three concise questions that give them a statistically reliable read on how trial jurors are likely to respond to important issues.

Consider how you might benefit from this type of research.  For example, you might want to know whether jurors find a crucial fact or theory in your case believable on its face or how they feel about a given situation.  Maybe trial is coming up and you need to know what type of juror demographics are most or least likely to believe a medical procedure consent form insulates a hospital from liability for a complication.  You can even field a question while trial is in progress to figure out how jurors might react to a new, unforeseen issue.

Examples of the types of questions you can ask jurors:

• Rank competing themes or language you are considering using for opening/closing
• Find out how a co-defendant being dropped might impact the case
• Assess factors affecting damages, such as whether jurors believe a disabled plaintiff will be able to work, or will need 24-hour care
• Weigh competing theories to find out which one jurors find more believable
• Find out how jurors might view a crucial admission by a witness – we can even play a brief video clip of the witness’ deposition to test credibility

Contact Senior Vice President Claire Luna at cluna@juryimpact.net for a price quote or a demonstration of how to use quantitative research. 

If you need a more thorough assessment of your entire case rather than just certain isolated elements, we also offer live or online focus groups that let you test out key themes, arguments, evidence and witnesses.  Let us know if you’d like a free 30-minute webinar demonstration of all our services.

* * *

Additionally…

We’re always advising our clients to humanize themselves, to even the playing field between the defense and the typically more sympathetic plaintiff.  We ran across a video this week produced by Cleveland Clinic called “Empathy: The Human Connection to Patient Care,” posted online in late February.

http://www.youtube.com/watch?v=cDDWvj_q-o8

The four-minute video follows several patients and hospital employees around the facility, capturing what they are going through in poignant phrases: a little girl “visiting dad for the last time,” a pensive woman waiting to learn more about the “something” on her mammogram, a pediatric nurse, who “always wanted a child on her own,” cheerfully waving to a discharged patient.  It’s a perfect example of a proactive marketing effort to share the Clinic’s
prioritization of empathy and patient care.

A warning: you might need tissues.

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 features 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 regarding 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. 

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.