When Acronyms Aren’t Enough

A favorite tactic of many lawyers we work with is to argue that a client’s conduct met the standards of a governing body, whether it’s a state licensing board for an amusement park ride or the American Association Obstetricians and Gynecologists (ACOG) for delivering a baby.  If it’s good enough for the people who make the rules, you figure, it’s got to be good enough for a jury – right?

However, we have learned you can’t count on jurors automatically believing such organizations are correct.  Jurors won’t necessarily accept that your client’s actions were good enough just because a board with a long acronym says so.

We’ve run into this phenomenon in a number of cases recently.  In one case, the Centers for Disease Control in Atlanta – the world’s foremost authority on infectious disease – clearly recommends that women with group B strep breastfeed their newborn babies.  The CDC says the proven benefits of breastfeeding in term of reduced risk of infection for the child outweigh the miniscule risk of transmitting GBS via breast milk.

But focus group jurors rejected this wholesale, as 18 of 24 jurors said caregivers should not have let this GBS-positive mother breastfeed her child.  One juror went so far as to claim the CDC didn’t know what it was talking about – because the baby contracted GBS, in hindsight the CDC “must” have been wrong.

In a fiduciary duty case we consulted on, jurors were unimpressed that the defendant CFO met all applicable industry accounting standards, and they demanded he should have “done more” to protect his employees’ interest.

These are just two of a number of cases we have seen that point to juror skepticism of professional authorities, especially those affiliated with the government.  We have found that we not only have to educate jurors about the applicable standards, but also educate them about why the standards are in place, including the process of creating the standards, and why they are correct. 

In the accounting case, we showed that the fiduciary’s decisions caused employees to profit – in addition to his actions passing muster with the professional accrediting body.

In an era when “everyone is an expert,” we have found you can no longer assume that jurors will automatically yield to the true experts.  We have found the first step should always be establishing the rationale and the process behind the official standards – and why your client’s actions were right.

If you want our take on how to make the best use of accrediting body or professional society guidelines, contact Senior Vice President Claire Luna at cluna@juryimpact.net.

Adapting Your Story for Today’s Information-Hungry Jurors

If you’ve ever fast-forwarded through commercials with your DVR or TiVo, recently been in a household without a landline telephone (unheard of a decade ago), thrown a brand-new phone book in the recycle bin because you can look up plumbers online, or sent a Facebook message from your iPhone while watching a movie, then you’re aware of how technology and social media have forever changed the way we communicate and receive, analyze and share information.

Such unprecedented access to information has also resulted in the potential for overload, causing people to find new ways to simplify, streamline and compartmentalize information – and even outright reject messages because they come from a particular source or are perceived to lack relevance.

As advertisers, marketers, pollsters and news organizations adapt to these changes and find new ways to connect with their ever-distracted audiences, it is important for trial teams to remember these changes also affect the way they communicate and connect with juries.

When making observations about the need to understand and adapt to the changes caused by technological innovations, the most common feedback is that this only applies to “young” and “tech-savvy” jurors, which comprise a small portion of most jury pools.  However, many are surprised to learn that right now one in four people over 50 years old owns a smartphone, and that number is growing rapidly.

In addition, according to Pew Research, between April 2009 and May 2010 social-network use among those 50 and older nearly doubled – from 22% to 42% (some estimate the use of Facebook among those 55 and older at 16 million and growing).  The fact is your entire audience is becoming more familiar with technology and social media, and you shouldn’t assume communicating with jurors in a courtroom is the same as 30, 10, or even five years ago.

According to our recent surveys, jurors are more impatient, have shorter attention spans and are growing more accustomed to using technology to multi-task.  If you’ve ever seen a cable-news report supplemented with multiple news tickers scrolling across the bottom of the screen at different speeds, then you understand how information overload is making it more challenging to help jurors focus on a handful of important pieces of information among an ocean of distractions.

In a world where Twitter encourages people to communicate their thoughts, feelings and opinions in just 140 characters, at trial it makes sense to tell your story in a simple, approachable and bite-sized way.  As more information and testimony are introduced, jurors will have a basic, go-to thematic umbrella under which all new information can fit.

It’s also important to understand how your audience uses technology, and design your presentation around that premise.  There used to be a fear among some trial teams that using the most up-to-date technology would make them look like they had an unfair financial advantage, so they stuck to overhead projectors to seem more “down home,” and used old tech to avoid appearing “extravagant.”  However, our exit interviews have consistently shown that in today’s world, jurors expect a high level of technology in courtroom presentations and actually appreciate a multi-media approach because it keeps things interesting and engaging.

We recommend incorporating elements of social media design into your PowerPoint slides, which will provide a familiar “look,” consistent with how jurors typically get their information.

In today’s world it is also important to utilize language familiar to your unique audience and present it in a way consistent with how jurors receive and analyze information in their daily lives.  This is not to say that your story should be punctuated with “OMG” and “LOL,” but it is vital to first understand how jurors view your case, the language and terms they use to break it down, what information – out of all that is being thrown at them – is the most effective and who are the most effective messengers, before stepping into the courtroom.

Consider Your Audience Before Dishing Dirt

Much of the time, we shy away from tabloid tactics and instead recommend a more straightforward approach to discussing the plaintiff’s background.  As juicy as scandalous Facebook photos, drug use or an extramarital affair may seem, sometimes the risk of alienating jurors with what they view as “irrelevant” information is too great.  Then again, there are times plaintiffs’ personal history can justifiably be used to the defense’s advantage, such as when their personal choices directly led to the negative outcome.

So how do you know when to bring up the past and when to leave the skeletons in the closet?  During a recent nationwide survey of more than 1,200 jury-eligible Americans, we attempted to quantify some of the factors that play into this decision.

Jurors were generally split regarding when and if a plaintiff’s personal history is fair game.  Asked if a plaintiff’s history of drug use or criminal activity is relevant and something the defense should bring up, 44 percent of respondents said the information is relevant and 31 percent said it is not (25 percent had no opinion). 

However, there was a striking racial difference in response to this question.  Nearly half of African Americans – 49 percent – said this information is not relevant, compared to only 28 percent of Caucasians and 33 percent of Hispanics.  Conversely, 46 percent of Caucasians and 43 percent of Hispanics said a plaintiff’s drug and criminal history is relevant, compared to only 34 percent of African Americans.

Is a Plaintiff’s History of Drug Use or Criminal Activity Relevant and Something the Defense Should Bring Up?

Another notable trend affecting how potential jurors viewed this issue was the type of area in which they live.  Respondents living in urban areas were most likely to say this information is not relevant (34 percent), whereas suburbanites were most likely to say it’s fair game (47 percent).

Is a Plaintiff’s History of Drug Use or Criminal Activity Relevant and Something the Defense Should Bring Up?

 The same race- and geography-based trends held true when respondents were asked how it would affect their opinion of a case if they learned the plaintiff had a drug or criminal history.  African-Americans and urban dwellers were most likely to say it would not affect how they viewed the lawsuit, and Caucasians, Hispanics and suburbanites were most likely to say it would make them more likely to find for the defense.

The key here, as always, is to know your audience.  

As the data show, how and when to delve into a plaintiff’s history is a complicated decision based on a number of demographic factors, and before trial it is crucial to understand how differing variables can mean the difference between helping the defense tell its story, and backfiring to the point that jurors shut out the story completely. 

If you’d like our take on your particular case, please contact Senior Vice President Claire Luna at cluna@juryimpact.net.

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We consistently advise clients to humanize defendants as a way to help level the playing field.  In that same vein, we will be doing more to humanize ourselves by sharing notable events for the Jury Impact team.  We look forward to working with you soon!

Senior analyst Erik Holmes will be moving to Charlotte, N.C., at the beginning of July.  His wife will be joining the faculty of the University of North Carolina at Charlotte as an assistant professor of criminal justice and criminology.  Erik will remain an integral part of the JI staff, and this move will be a great benefit to our East Coast clients.

Restoring Realistic Expectations on the Chain of Command

Chain of command is one favored tactic to put nurses (and thus the hospital) on the hook for a doctor’s decisions.  Many times this makes sense to jurors – if they as laypeople question the doctor’s course of action, they can conclude a nurse should have as well.

It’s an easy argument to make since, in hindsight, another course of action “might” have prevented a negative outcome – if only that nurse had had the guts to stand up to that wrong-headed doctor.  Unfortunately, a survey we recently conducted shows jurors expect nurses to do just that.

In a May survey of more than 1,200 potential jurors nationwide, an alarming 84 percent of respondents indicated they believe nurses have a duty to question a doctor’s decision if they disagree with it. This jibes with what we have observed during focus group research – jurors increasingly expect nurses not only to be patient advocates, but also to have enough medical knowledge to second-guess doctors.

We’ve also learned that for whatever reason, jurors believe nurses rarely if ever take the step of going up the chain of command.  The same May survey found that 39 percent of respondents believe nurses “almost never” question a doctor’s orders.  Based on our discussions of the topic during focus groups, this perception is likely due to the shared juror predisposition that many doctors are “arrogant” and would likely disregard such disagreement anyway.

We have had the most success overcoming this plaintiff theme during case research by emphasizing how the medical chain of command, like its military counterpart, functions because nurses follow doctors’ orders – except in extraordinary circumstances.  These circumstances might include a doctor who is incapacitated by health or alcohol, or who orders a C-section for a patient who has expressly withheld consent.  Like a foot soldier, however, the nurse is not considered the appropriate person to weigh in on or dispute routine medical decisions because they don’t have a doctor’s training and background – and the treatment environment and patient safety might suffer if they did.

The best way to counter a plaintiff’s chain-of-command claim will vary based on the unique factors of each case.  If you’d like to hear our thoughts about your case, contact Senior Vice President Claire Luna at cluna@juryimpact.net.

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We consistently advise clients to humanize defendants as a way to help level the playing field.  In that same vein, we will be doing more to humanize ourselves by sharing notable events for the Jury Impact team.  We look forward to working with you soon!

Senior analyst Erik Holmes will be moving to Charlotte, N.C., at the beginning of July.  His wife will be joining the faculty of the University of North Carolina at Charlotte as an assistant professor of criminal justice and criminology.  Erik will remain an integral part of the JI staff, and this move will be a great benefit to our East Coast clients.

Fairness Means Taking Care of Plaintiffs

We’ve previously discussed how a significant number of jurors outright disregard the law or judge’s instructions in favor of rendering verdicts based on perceptions of fairness.  Our recent online and mobile survey of 1,212 jury-eligible participants confirmed this tendency, as 43 percent openly admitted they would rely on their sense of fairness rather than the law – consistent with numerous polls we have conducted.

This time, though, we delved further into what “fair” means to jurors and established some surprising findings.

First, we learned a majority of jurors believe it is “fair” for the defense to cover the plaintiff’s medical bills – even if they don’t believe the defendant was at fault.

Second, in their quest for fairness, an overwhelming 74 percent said they would consider attorney’s fees when calculating damages.

But the most shocking aspect of this figure is the answer to a follow-up question asking if they would still consider awarding lawyer’s fees even if a judge specifically told them not to.  Thirty-three percent said they would ignore those instructions and award attorney’s fees anyway.

Finally, we learned fairness also includes the unforeseen, as slightly more than half of all respondents said they would award more money than the plaintiff demanded to ensure he or she is “taken care of.”  When evaluating a case or going to trial, we believe it’s important to understand these aspects of damages will almost certainly be on the table and are an inherent part of jurors trying to ensure the plaintiff receives all of the money the jury wants them to get.

Although the juror tendency to ignore courtroom instructions and instead rely on their sense of fairness is a seemingly negative finding, we believe this can be a good thing – as long as you and your team take it into account and present a defense story that plays to jurors’ strong desire to achieve “fairness.”  The plaintiff is likely to call on jurors to “make things right,” highlighting the importance of providing a competing narrative that ensures fairness and balance is not a one-way street and instead the “right people” are held accountable.

If you have an upcoming case and need to find ways to appeal to jurors’ inherent sense of fairness, we have a variety of research methods to help you achieve that goal.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net for more information.

* * *

We consistently advise clients to humanize defendants as a way to help level the playing field.  In that same vein, we will be doing more to humanize ourselves by sharing notable events for the Jury

Impact team.  We look forward to working with you soon!

Senior analyst Erik Holmes will be moving to Charlotte, N.C., at the beginning of July.  His wife will be joining the faculty of the University of North Carolina at Charlotte as an assistant professor of criminal justice and criminology.  Erik will remain an integral part of the JI staff, and this move will be a great benefit to our East Coast clients.

Director of Logistics Allison Cooper gave birth Saturday, May 4, to her first child.  Her daughter, Peyton, weighed 7 pounds, 9 ounces. Baby and mom are both doing great – congratulations, Allison!

Witnesses Should Choose Wisdom Over Wisecracks

We’ve all encountered expert witnesses who think they’re the next Jay Leno, and just can’t help themselves from cracking wise and hoping to get a chuckle from the jury.  Maybe you’ve even encouraged witnesses to do this to help them establish “rapport.”

News flash – jurors couldn’t care less if your expert is funny.  

We recently conducted a nationwide survey of 1,212 jury-eligible participants, and we asked them to choose (from a list) the top three factors that would influence how favorably they view an expert’s testimony.  Only 2 percent chose humor as an important factor – tied for dead last with the witness’ gender.  In fact, more participants (3 percent) chose the witness’ race than their sense of humor.

So what are jurors looking for in an expert witness?  It turns out their values in this regard go back to our number one piece of advice during jury trials: Be considerate of the jury’s time.  Don’t waste their time with incomprehensible jargon, and make sure your experts' experience is relevant (not 30 years ago or in a field only tangentially related to the case at hand).

In fact, the number one factor survey respondents said would influence how favorably they view an expert’s testimony is experience, with 75 percent selecting years of experience as their top factor.  Coming in a strong second, at 71 percent, is the ability to explain things in simple terms.  The witness’ education came in a distant third with 52 percent.

And although a dazzling CV is nice, it may be more important to you than it is to your jurors.  Only 6 percent said having a famous employer (such as Harvard or Stanford) was one of their most important factors – the same number who chose how many accolades the expert has racked up in their field.  The number of papers the expert has published mattered to more jurors (18 percent), but it barely cracked the top five.

This survey lends credence to some of the tips we give witnesses during the hundreds of hours of witness preparation we conduct for clients every year:

• Jokes oftentimes don’t play – jurors want a witness who is considerate of their time, and humor is often at odds with being concise.
• Explain terms and educate the jury – particularly if the subject matter is scientific or technical, the ability to explain clearly is critical. 
• Reinforce your experience – it isn’t bragging for the witness to put the case in the context of how many years she has been in the field, or how many surgeries she has conducted.

Keep these survey findings in mind the next time you’re prepping a witness for deposition or trial.  And get in touch with us if you think your witness could benefit from our experience and insight.  We’ve worked with witnesses including CEOs and nursing aides, and we can help bring out their attributes most likely to appeal to jurors.

We also have a unique online witness assessment tool that can allow you to get feedback about a witness’ deposition video from real people in your jurisdiction.  There’s no reason to guess what a jury might think of your witness.

Please contact Senior Vice President Claire Luna at cluna@juryimpact.net to find out more about our witness preparation services or online witness assessment.

Life is eternal – at least when it comes to our consultations

When we state in our proposals that focus group and mock trials include consultation for the life of the case, we mean it.  Our clients have told us this is one of our best selling points, and one that we may not emphasize enough.

Whether it’s been five days, five weeks or five years since we conducted research with you, we are happy to provide further analysis of any new data or fact that has come your way in the interim (for example, a defendant has settled out or a crucial piece of evidence has been excluded), or produce a list of potential jury selection questions if trial has finally been set.  We do this because we care – we take a strong personal interest in each of our cases and oftentimes years after a focus group can still recite details of a key deposition or recall the language that switched jurors to your side.

If you have worked with us before and would like to talk through previous research with us, contact us anytime.

Where's the Video?

As mentioned in previous Things… articles, certain types of cases and jurisdictions lend themselves to jurors quickly suspecting a cover-up, even when those specific allegations aren’t being made.

The cover-up mindset can also affect other aspects of case evaluation – especially when it comes to allegations of “missing” video footage.  In today’s world, where video cameras are seemingly everywhere (on the street, waiting in line in Starbucks, in elevators, etc.), many jurors assume video footage of the incident in question exists – and become suspicious when told it does not.  In fact, when discussing dueling versions of events, the first juror question during focus groups often is, “Where’s the video?”

Especially in situations where cameras were in place but the footage is unaccounted for, skeptical jurors quickly suspect a cover-up, and we have seen plaintiff’s counsel play to those suspicions by using language such footage that has “gone missing” or has been “lost.”

We have found it useful to take the time to educate jurors about the video recording system and the data-collection system, and normalize such procedures as the overwriting of footage after a predetermined period of time – a practice some jurors are familiar with in their lines of work.  The vast infrastructure required to store years’ worth of around-the-clock, high-quality video footage from multiple cameras “just in case” would make Google blush.

Although a lack of video footage – whether because there were no cameras, or policy and procedure required overwriting after a certain number of weeks or months – creates significant challenges for the defense, it also presents an opportunity to get jurors invested in strongly considering both sides, thinking critically instead of emotionally, and taking it upon themselves to figure out the true story in the absence of video footage that might make the trial process easier for everyone.

We’ll note, too, for those times when there is video footage, testing it to find out how jurors interpret it – not just how you want them to interpret it – can be crucial.  Through focus groups and our online research process, we have prompted jurors to evaluate hundreds of hours of footage, including Taser videos, ER security camera footage and surveillance videos of plaintiffs walking, dancing and even rapping despite claims of debilitating injuries.  These findings can be game-changers in terms of how jurors view the entire case.

Whether you have video or not, give us a call to discuss how we can help you evaluate how this footage or lack thereof might shape jurors' perceptions of your case.

Life is eternal – at least when it comes to our consultations

When we state in our proposals that focus group and mock trials include consultation for the life of the case, we mean it.  Our clients have told us this is one of our best selling points, and one that we may not emphasize enough.

Whether it’s been five days, five weeks or five years since we conducted research with you, we are happy to provide further analysis of any new data or fact that has come your way in the interim (for example, a defendant has settled out or a crucial piece of evidence has been excluded), or produce a list of potential jury selection questions if trial has finally been set.  We do this because we care – we take a strong personal interest in each of our cases and oftentimes years after a focus group can still recite details of a key deposition or recall the language that switched jurors to your side.

If you have worked with us before and would like to talk through previous research with us, contact us anytime.