First Step to Persuading Jurors: Simplify

Recent news out of California shows it might be impossible to simplify things too much for a jury.  A Fresno jury’s confusion about how to fill out the verdict form — they acquitted an accused burglar instead of indicating they were deadlocked as they intended — meant the man was freed from custody.  A few hours later, he was killed in a fight at a relative’s house.

Some might be inclined to dismiss these jurors as “stupid” and consider their verdict form dilemma a one-off.  However, this attitude ignores the reality that it doesn’t matter why the jury didn’t know how to fill out the form (and along the same lines, why jurors don’t understand concepts you may find basic such as agency or negligence).  All that matters is that for these jurors, this was their reality, and neither the attorneys nor the judge simplified the verdict form in a way that made sense to them.

Our experience has taught us that the side with the simpler story has the advantage.  Put another way, as one of our clients told us recently, “When you’re explaining, you’re losing.”

The point is that in this information-heavy world, where infinite data is available at the touch of a smartphone screen, delivering an effective story to a jury means providing the simplest package possible.  That package has to include discussion of the verdict form so jurors know what to expect when they start deliberating.

Concepts such as negligence, cause and agency can consume entire chapters in a law school textbook, but put these words on a verdict form and we expect jurors to understand them with a two-paragraph instruction.  Countless times we have interviewed jurors after a trial and heard, “I still don’t really know what negligence is.”

We often tell our attorney clients they know their cases too well, potentially producing false assumptions about what their jurors should, or will, understand.  This can also result in bad assumptions regarding jurors’ ability to navigate the verdict form, and attempts to educate your jury should always include an explanation of the verdict form and the concepts it contains. 

If you would like to talk with us about how best to explain some of the key concepts in one of your upcoming cases, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Conspiracy Theories More Common Than You Might Think

We’ve written before about jurors’ tendency to invent and embrace conspiracy theories during the course of a lawsuit, and those of our readers who have done focus groups with us have likely seen that dynamic in action.

It turns about that tendency – particularly as it relates to medical conspiracy theories – is even more pronounced than we thought.  A new study by a University of Chicago political scientist published in March in the journal JAMA Internal Medicine found that half of Americans – and likely half of your jury panel – believe at least one popular medical conspiracy theory.

Among the highlights, the study found more than one-third of respondents believe the FDA is keeping natural cancer cures off the market because of pressure from drug companies, 20 percent think cellphones cause cancer but the government is ignoring it to appease corporations, and 20 percent believe doctors and the government know vaccines cause autism but continue using them anyway.

It takes no great leap of imagination to conclude jurors holding these views might be quicker to assume doctors, hospitals or corporations being sued would engage in a cover-up.  The challenge, of course, is to identify these potential jurors during voir dire – before they have a chance to poison your jury.

The study found people who embraced conspiracy theories tended to be less educated, poorer and members of minority groups.  But a deeper look reveals some interesting trends that could give you a leg up during voir dire.

For example, conspiracy theorists were less likely to use a primary care doctor for medical advice and instead relied on the Internet and celebrity doctors such as Dr. Mehmet Oz.  In fact, more than 80 percent of people who look to celebrity doctors for medical advice believed at least one of the conspiracy theories.  Conspiracy believers were also more likely to buy organic foods, take herbal supplements and avoid vaccines. 

Interestingly, political liberals and conservatives embraced conspiracies in almost equal numbers (with conservatives being slightly more conspiracy-minded), so don’t rely on political ideology alone during jury selection.

What ties this all together is a deep distrust of institutions and authority, whether it be government or the health care industry.  From our perspective, these are the types of issues you should probe during voir dire: Do you think hospitals put profits before people?  Do you trust your doctor to give you unbiased advice, or do you look for advice elsewhere?  Do you think vaccines cause autism or cell phones cause cancer?

If you have a case where conspiracy might rear its head, it might be worth it to see how this plays out in focus groups.  Contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714-754-1010 to find out how we can help.

Separating Jurors’ Desire to Help From Their Verdict

Juror sympathy is a force to be reckoned with, despite judges' instructions telling them to separate emotion from verdict, as we have explored before in this space.  But the more important question to us is how a plaintiff might be able to secure a verdict based on sympathy alone.

Consider some of our recent focus group cases, when staunchly defense-minded jurors indicated willingness to change their verdict once they learned their inclinations meant the plaintiff would not get any money.  Again, these were participants who not only believed there was no breach in the standard of care, but were also convinced in most cases of an alternate, more logical cause for the plaintiff’s injuries than the alleged negligence.  Yet they were willing to put these convictions aside in the name of compensating the plaintiff.

In a recent national survey we conducted of more than 800 potential jurors throughout the United States, one-fifth of the participants – 20.2 percent – stated they would be more likely to side with the plaintiff if they knew a vote for the defendant meant the plaintiff wouldn’t get any money.  They believed this to be true “even if a seriously injured plaintiff hadn’t convinced you to support their case.”

In looking more closely at those 20.2 percent, a few commonalities stood out.  Those most likely to side with the plaintiff to ensure they would get money were young and “untethered.”  For example, 18- to 29-year-olds, those who rent, single people and the unemployed were all almost twice as likely to say they would be more likely to side with the plaintiff.  Surprising to us was the fact that those who currently serve in the military were nearly three times as likely to vote for the plaintiff in this scenario.

We have had some success in shifting this mindset by focusing jurors on one of the concepts they hold most dear: fairness.  By asking jurors if it is fair to find against a defendant they truly do not feel did anything wrong, they oftentimes conclude on their own that although they would like to find a way to give the plaintiff money, it would not be just to do so.

If you have a case where you’re concerned jurors’ desire to help the plaintiff may prompt them to ignore what they truly believe about liability, contact Jury Impact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.  We would love to talk with you.

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Are any of you planning to attend the 2014 DRI Trucking Law Seminar in Las Vegas this month?  If so, please make sure to say hi to Claire, who will be leading a presentation on working with challenging witnesses. 

Testimony: How You Say It Is as Important as What You Say

When we work with witnesses during deposition or trial prep sessions, a crucial aspect of this process is videotaping the witness answering tough questions and playing back the footage for them.  If you’re one of those people who dislike the sound of their own voice, then you know how uncomfortable this can be. 

However, we believe this exercise is vitally important because it gives witnesses an idea of what a jury would see and what adjustments (in many cases, immediate ones) can be made to better appeal to those jurors.  Especially during trials where both sides haven’t given their presentations the “Twitter treatment” to simplify their stories, jurors can get bored and focus their attention elsewhere – including the clothing, demeanor and attitudes of witnesses and attorneys.

We recently monitored a trial after which we interviewed several jurors and asked them about the drivers behind the unanimous defense verdict.  In addition to aspects of the case they believed were stronger for the defendants, they also mentioned the key witness for the defense – a healthcare provider accused of skipping safety steps during a heart catheterization procedure – was a particularly strong witness.

Although this witness was on the stand for more than four hours answering a slew of tough questions, the foreperson condensed this witness’s performance down to, “She answered directly and without hesitation – that is not the type of person to veer from her routine.”  

After showing a witness' video deposition to focus group jurors and soliciting their feedback, we also find it useful to show the witness later clips of the participants discussing their observations.  Seeing objective strangers discuss a witness’ demeanor, rather than jury consultants and the legal team sitting right in front of them, can lend a certain third-party credibility to the feedback. 

We recommend conducting preparation sessions with all witnesses – not just the “challenging” ones – because as we have learned from jurors there are fine lines between “direct” and “rehearsed,” “confident” and “arrogant,” and “knowledgeable” and “defensive” – and sometimes a little outside perspective on these nuanced differences can make a dramatic difference in demeanor, attitude and credibility.  If you have an upcoming case that could benefit from witness preparation, or you would like to garner juror feedback on specific witnesses, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Give Your Story the Twitter Treatment

It’s no surprise audience attention spans are getting progressively shorter, but you may be interested to learn just how short they have become.  According to the U.S. National Library of Medicine, the average attention span in the year 2000 was 12 seconds – an already dismal figure – but by 2013 our ability to stay focused had dropped to a measly eight seconds. 

In a world where many people now get their news from Twitter in 140 characters or less, it makes sense why so many have a tough time staying engaged for long periods of time.  As technological advancements continue to create more distractions in our daily lives and feed the growing “instant-gratification” mindset - if you’ve ever binge-watched an entire season of House of Cards or Breaking Bad over a weekend, then you’ve become a victim as well - we expect this number to drop even further.

When it comes to defending lawsuits, these shrinking attention spans highlight the importance of developing themes and language that appeal to how today’s jurors process information, and presenting it in ways that get through to the easily distracted.

The simplest way to do that is put your messages, themes, explanations and opening and closing statements on a diet.  No matter how many moving parts a case has, there is no reason opening arguments should take 2.5 hours.  Our exit interviews reveal that many jurors view these kinds of drawn-out presentations, as well as long, repetitive witness examinations, as disrespectful of their time.  Whichever side has the simpler, shorter story always has the advantage and looks better in the jury’s eyes – so make sure that’s you.

We recently monitored a medical malpractice trial where opening statements took less than 30 minutes – for both sides.  The plaintiff testified, both direct and cross, in just 18 minutes.  Although not every case can be presented so quickly and not every trial can proceed at such an accelerated pace, we firmly believe the goal should always be to make things as short as possible.  A good rule of thumb is:  If you can’t fit your explanation on a Post-It note, then you can’t explain it adequately.

In response to that we often hear, “But this case is too complex to be reduced to a Twitter-friendly format.”  If that truly is the case, and trial research and even inter-office discussions are unable to reveal ways to explain each side’s position simply and concisely, then you should seriously consider that when deciding whether to take a case to trial.

And this “shorter-is-better” philosophy doesn’t start and end with juries – mediators, judges, committees and claims managers are people too, and are highly receptive to short, simple and easily digestible explanations, theories and messages.

Not every case is simple, but all cases can be simplified.  If you have a case that could benefit from some simplification and juror feedback, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Younger Jurors Have Trust Issues

Trial attorneys all have their own beliefs about who make the best jurors, and who make the absolute worst.  Many attorneys tell us they actively avoid younger jurors for a variety of reasons, including shorter attention spans, a lack of life experience and perspective, unrealistic expectations, or simply the attorney’s experience and gut instincts.  

Whatever the reasons for avoiding younger jurors, we have been crunching a lot of numbers lately and have some hard numbers to back up those intuitions and gut feelings.  First, a recent national poll of 18- to 29-year-old Americans by Harvard’s Institute of Politics revealed these younger folks’ trust in public institutions is at a five-year low, and cynicism related to the political process is at an all-time high.

The tendency of younger people to be more cynical, critical and suspicious of public institutions – which applies to most large entities including education, healthcare, health insurance and the judicial system – is what we are seeing in our own polling.  In fact, in a recent national Jury Impact poll of 834 Americans, younger jury-eligible respondents were most likely to believe plaintiffs “rarely or never” inflate their damages amounts, believe a family member of the plaintiff would be a credible witness, and to change their vote for the plaintiff if they learned they would receive no money – even if the plaintiff failed to convince them of their case.

Most troubling, those 29 years old and younger were 2.55 times more likely to conduct outside Internet research on a case during trial – even if a judge specifically instructed them not to.  Furthermore, younger respondents were the most likely to admit they would ignore a judge’s instructions not to consider lawyer’s fees when calculating damages, and not to allow sympathy to affect how they decide a case. 

So, not only are younger jurors more likely to be hostile to defendants who classify as “large institutions,” they are also less likely to respect the legal process and instructions.

Although these numbers are daunting, because there is no way to guarantee younger people won’t get seated on your jury, it is important to understand their unique mindsets when evaluating cases and developing themes and messages.  Using research to gauge the perceptions of jurors with shorter attention spans can help you develop a more concise overall message that appeals to those accustomed to instantaneously Googling the answer to any question the world has ever asked in mere seconds.  Furthermore, if you are able get through to the most cynical, skeptical audience members, then you can have confidence your approach will also appeal to the rest of your jury panel. 

As the attention spans of all generations get shorter (if you’ve ever surfed the web on your smartphone or tablet while fast-forwarding through commercials on your DVR, then you have firsthand knowledge of this trend), it is even more important to present case facts, themes and arguments in a clear, concise manner.  If you have an upcoming case that could benefit from an outside perspective – from jurors of all ages and backgrounds – please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Not All Plaintiffs Created Equal

Not all plaintiffs are on a level playing field when it comes to juror perceptions.  Certain plaintiffs – babies, children, the elderly – are just more likely to garner sympathy and potentially high damages.  During a recent nationwide survey of 864 potential jurors, we learned nearly 40 percent would award a larger amount to a poor plaintiff than a rich one.

As we know from interviewing thousands of jurors around the country, this is something jurors notice.  We still remember the jurors we talked to after a defense verdict in a birth-injury case, all of whom noted the plaintiff’s father owned an expansive wardrobe of Ralph Lauren shirts – enough to last him through a four-week trial without a single repeat.  “I was tallying those little horses every day,” one juror told us.  “Pink, blue, white, yellow, he had it all, and it’s clear these people didn’t really need more money.”

Plaintiff poverty can work the opposite way, potentially producing higher awards because the jurors want to help this person or family.  That statistic we cited above shows between one-third and one-half of your jury pool might see bigger dollar signs when considering a financially deprived plaintiff.

Looking more closely at those more likely to say yes revealed some interesting consistencies – and people to look out for during jury selection.  Those most likely to give a larger award to a poor plaintiff than a rich one shared the following characteristics:

• Asian  (1.7 times more likely)
• Student  (1.6 times more likely)
• Registered Democrat (1.5 times more likely)
• Currently serve in military (1.4 times more likely)
• From 18 to 29 years old (1.3 times more likely)
• Part-time occupation (1.3 times more likely)
• Single (1.3 times more likely)
• Annual household income less than $25,000 (1.2 times more likely)

If you would like to talk more about the plaintiff in one of your upcoming cases and whether their circumstances might prompt jurors to give a larger award, contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net.