January 5, 2013 · 11:05 pm

Beating Preponderance – The Trouble With Battling Experts

I consult on many different types of cases from medical malpractice, insurance bad faith, personal injury, wrongful death – the list goes on. While every case is different, I notice a common theme in many of my consults. As I talk through the case with counsel, I look for potential holes. I try to see the case through the eyes of the worst juror for that side. Through asking questions, I often discover problems in a case that the attorneys never knew existed – sometimes so substantial that attorneys have had to settle the case or, if they’re lucky enough to still be in discovery, make some drastic changes. But even on the “good” cases, the ones that were worked up well and have a strong base from which to build on, I often see attorneys blinded by their story of the case.

Here is an example of the conversations that I seem to be encountering over and over:

Me: What is the defense side of the story?

Attorney: They say X, Y, Z. But they have nothing to back it up.

Me: Well what does their expert say?

Attorney: They will say A, B, C.

Me: How do you know that’s wrong?

Attorney: Because our expert says so.

While cases often are a battle of the experts, you need more than that. If you are the plaintiff, you must prove preponderance. If at trial all jurors hear is your expert versus theirs, that often ends in a toss-up. You may think your expert is better qualified or more likable and sometimes that’s true, but unless there is a glaring discrepancy between the quality of your expert versus theirs, changes are that jurors will count it as a tie. As a defense attorney, a tie may be enough. Legally, a tie would signal less than preponderance. But combined with other aspects of the trial such as your client or how the judge rules on evidence, you may still fall behind. No one wants to be in the position of trying a case that you win just by the skin of your teeth because that means you could just as easily have lost.

So what’s the solution? You need to present your story of the case, but you cannot ignore the other side’s story. You need to address it and not just by having an expert who says their side is wrong. Why is it wrong? What steps did their expert miss in doing the analysis? What inaccurate assumptions did their expert base his/her opinion on? Why is your expert’s analysis more valid? When testing for a TBI, did the medical examiner follow all protocols regarding lack of distractions during testing? Did they rule out other causes of the symptoms? Did the police create a report by following proper police protocol in terms of being unbiased and interviewing the parties? Did your life care planner take into account the fact that once someone lives to a certain age, they are more likely to live longer whereas their planner relied on life tables? You need to explain to jurors why the other side came to different conclusions. In most cases, both sides have paid experts. To point out how much the expert is being paid is fine but it usually equals out between the two sides and jurors understand that experts need to be paid for their time. You need to address not only your story but disprove theirs. This is not always possible, but I see many cases where it is possible and the attorneys simply haven’t taken the time or thought to figure it out. Don’t assume that having an expert who counters the other side’s expert opinion is enough. You need to show why they are wrong.

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November 13, 2012 · 11:43 pm

Powers of Confirmation Bias: Juror Interview Clips

Confirmation bias is the tendency for a person to distort information to fit with existing beliefs. Any information that conflicts with those beliefs is either forgotten, dismissed, or reinterpreted to be consistent with the beliefs. While most attorneys today are well versed enough in social science to understand this phenomenon, it may come as a shock to see it put into practice. Without revealing any confidential information, I’d like to share some results of post-verdict interviews I conducted on behalf of an attorney I know well. The basic fact pattern was a multi-car collision with two defendants. One defendant was listed as being at fault in the police report. Disputes were mostly over causation and damages. The result was a defense verdict on both counts. The attorney hired me because he was shocked at the verdict with so much liability evidence. I should preface these juror quotes by stating that this is a good attorney. He is not a starter lawyer and he knows of David Ball techniques. Some of the things the jurors mention I can guarantee are not true. The purpose of my sharing this is so that you can see just how far confirmation bias will go. I will focus on just one of the jurors for purposes of proving the point.

The interview started out fairly standard. She I asked what she remembered most and she began walking me through the trial and the actions of the defendants. Fairly early on in the interview, she mentioned,

“Based on what the defense brought up, it was clear [the plaintiff] wasn’t being completely honest…I could see specific instances in her testimony where things weren’t lining up with what she said. That made me question her credibility.”

She later mentioned,

“The plaintiff’s attorney went on and on about how much chronic pain she was in and we never thought she wasn’t in pain but in one line of questioning by the defense they asked her how many times a week she has neck pain and she said 1-2.”

At this point, I knew credibility of the plaintiff was a major issue. It was brought up more than once by more than one juror and seemed to continue to build as more and more inconsistencies showed up. While the juror about other things of importance such as the jury instructions, I knew that a lying client is hard to overcome and that everything else she told me was likely skewed by this belief. As proof, when I asked about the attorneys, the juror started to talk about the plaintiff’s attorney. She stated,

“As we went through trial, other jurors brought up that he had some signals he was giving to the plaintiff and possibly some other witnesses and I started watching and noticed he would roll his eyes or subtly shake his head no or he would cross his leg and dust something off his pants and one of the other jurors said to pay attention to when he does those things, how the witness responds. When he rolled his eyes, the plaintiff would respond that she didn’t recall or if he moved his head to the left in a shaking motion, she would answer no…I got the feeling he was trying to lead her answers which again went back to me establishing her credibility.”

I know this attorney did no such thing, but it fit with some of the jurors’ views of the client and of trial attorneys in general so they believed it and used it to further those views.

Later in the interview, she again mentioned issues of credibility. Although the plaintiff saw only treating doctors and none were referred by the attorney, jurors selectively heard that the doctors were all referred by the plaintiff’s attorney:

“It seemed too convenient that she kept going back to the doctors who were hired by her attorney.”

I was not able to get a hold of many other members of the jury so I suppose I have no way of knowing for sure if there was a rogue juror on the panel or anything else suspicious but I saw no signs of anything other than jurors trying to come to a decision they felt was right. The plaintiff’s inconsistencies killed her chances at recovery and even went so far as to have jurors believing the plaintiff’s attorney was in cahoots. I share this information to make you aware of just how dangerous inconsistencies in a story can be. Coupled with a view that trial attorneys are lying manipulators to begin with and you will have a very hard time winning.

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Filed under Interviews, Jury Research

October 5, 2012 · 9:10 pm

Power of the Self-Protective Mechanism

I was running some focus groups this past weekend on a negligence case where the main issues were causation and damages. Without breaking any confidentiality, I’d like to share some of the juror viewpoints. In one group, jurors ultimately found causation but felt that money doesn’t do much good so why give any? (This is typical as you probably know). The other group started off going in a similar direction until one juror in particular started speaking up. Here are parts of the conversation:

Juror 1: That’s the hope that if we catch this one, they will put out a policy to prevent this from ever happening again.

Juror 2: It might be us for all we know.

Juror 1: Let’s send a signal to [Defendant] and to their corporate offices. We have to send a serious signal by virtue of a dollar amount that we as a society will not tolerate negligence of any kind…Let’s send them a serious signal…A serious signal is in the millions where they can taste it. Let them hurt now..All of us could end up [here]. At least we could consider we had a small part in making a difference.

Juror 1 convinced 6 of the 8 other jurors to go along with him. How much would you love to have Juror 1 on your jury?  His motivations are simple. While punishment may seem like the primary goal, the punishment is only secondary to his own safety. He sees the defendant’s negligence as something that could affect him and so his only way to remove himself from the danger is to try to end the danger itself by sending a message to the defendant. This was all without any punitive damages arguments in the presentation. So that I do not overstep any boundaries, I won’t go into detail on a public forum of how to best formulate your case so that jurors start thinking in this manner but certainly study David Ball and Don Keenan’s Reptile and/or contact me individually. I simply wanted to share a pertinent moment from my weekend with jurors. Hopefully it makes a few of you smile.

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Filed under Focus Groups, Jury Research, Trial preparation

September 6, 2012 · 5:00 pm

Jurors United? Something to Consider During Jury Selection

The jurors in the Drew Peterson case are drawing some media attention. While it seems to be out of a movie (Runaway Jury, in fact), the jurors coordinated clothing for a month during the trial. One day it was yellow, another day blue, another day green. Some days it was business suits and other days sports teams jerseys. They have also alternated red, white, and blue, in what may or may not be a sign of patriotism. Without talking to the jurors, no one really knows what this all means. Some say it means the jurors are not taking their jobs seriously. I would doubt that from my multitudes of interviews with jurors, a great majority of whom took their jobs very seriously. What it does show, regardless of the message, is that the jurors are united and getting along.

Does that mean there will be a verdict? Possibly. The odds are higher that there will be a verdict when jurors unite than when there is dissent amongst them. But it is possible that they all get along wonderfully yet disagree on some parts of the evidence or the law.

There is one lesson to point out in this. When you pick a jury, be conscious of the dynamics of the group rather than only focusing on individual jurors. If you want a hung jury, try to put clashing personalities on the jury together. If you want a cohesive group who is more likely to reach a verdict, try to get jurors whose personalities and backgrounds mesh well. Jurors form relationships over the period of a trial and just like any relationship in life, it can be harmonious or tumultuous. Spouses that fight all the time rarely make any decisions together. The same goes for jurors.

What will the verdict be in the Peterson trial? Only time will tell. But I would place money on the fact that if there are disagreements in that jury room, they are being worked out in a civilized fashion with respect for the system and each other.

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Filed under Jury Research, Trial preparation, Voir Dire

August 15, 2012 · 5:37 pm

What To Do (And Not Do) With Short Voir Dire Time

Voir dire time in many places is now limited to 15-30 minutes (if you get attorney-conducted voir dire at all!). Aside from filing motions for extended voir dire, arguing with the judge, asking for more time when your time is about to be up, and many other suggestions for getting more voir dire time, I want to address some ideas of what to do when you are stuck with such a small amount of time.

There are some very good attorneys and consultants who will suggest using scaled questions (those are questions where you have people give answers on a scale of 1-5 or 1-10, etc.) in such situations. They suggest coming up with some questions about tort reform or specifics about your case and go down the line of jurors asking where they fall on the scale.

I would suggest something different, however. I understand the need to get as much information from jurors in such a short amount of time but my fears in using the scaled method are:

  1. Unless you have really tested the questions and reliability of the scales, you may learn absolutely nothing. I often use scaled questions on my intake forms for focus groups and most of the questions asked have no correlation to the juror’s ultimate opinion. Many jurors who say they are in favor of caps, for example, will go way beyond their maximum dollar amount when they hear the facts of the case. Further, you don’t know why the jurors hold such beliefs or how ingrained the beliefs are unless you talk to them.
  2. You give up any chance you have to become likeable and create rapport with the jury. If all you do is go down the line and have jurors shout out numbers at you, the jurors learn nothing about you and you learn very little if anything about them. Jury selection is a time for you to create a bond with the jurors. Jurors are already degraded by being given a number instead of a name, herded like cattle, and told where to sit. You only add to their degredation by having them give numbers instead of answers.

My suggestion is to use whatever little time you have getting jurors talking. If you’re a plaintiff’s attorney, you probably want to focus on tort reform and just get them spouting off about frivolous lawsuits and greedy attorneys. Let them see you listening and thanking them for their answers. They will feel a whole lot better about you if you spend your 15 minutes with them asking questions and facilitating a dialogue than giving scaled answers. That’s not to say that you can’t use one or two scaled questions within the discussion or ask a couple of hand raising questions to find out which jurors to start the conversation with, but the main focus should be on getting to know the jurors as people and them seeing that you have an interest in them.

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July 26, 2012 · 4:42 pm

Keeping Jurors Awake and Interested

On my days off, I walk into my nearest courtroom and watch jury trials. I look for how long it takes me to figure out what the case is about and how long the attorneys keep my attention. The results are often poor. Yesterday, I walked into a case I believe was a contract dispute about payment for a custom made motorcycle. The plaintiff, the motorcycle designer, was on the stand. His demeanor was calm and he was clear in his speech but the presentation was so dry and boring that after 10 minutes I felt myself wanting to doze off. I looked at the jury of 6. One or two men were nodding and paying attention – presumably they knew a bit more about motorcycles or had some personal interest. Another two or three were turning in and out, at least pretending to look interested as their eyes glazed over. And one woman wasn’t even pretending to be interested. She was completely checked out and bored.

Trials often involve some tedious questioning about topics that are not normally of interest to jurors. There’s nothing you can do to eliminate the need for some “boring” testimony, but you can make it less boring and grab jurors’ attention. At every opportunity, have the witness and/or yourself do something interactive. Even if that means something as simple as writing things on an easel as the witness is talking – such as the pros and cons of doing something a certain way.

In the case example above, the attorney could have either brought in a motorcycle as a demonstrative exhibit or at least had photos of the motorcycle where the witness could have gotten out of his seat to move around and point to things. This helps make the witness into a teacher as well as creates an interactive moment to keep jurors’ attention. He could have had various motorcycle parts cut out with Velcro on the back and showed the jurors why some parts wouldn’t fit while others worked perfectly by switching out Velcro pieces.

Other ideas for other cases include counting out the number of pills a client takes in a day or a week and putting them in glass containers so jurors can see how much it adds up to over a month or a year. Have witnesses come off the stand to point to exhibits or even better, to draw on them. Create a posterboard where you place a red dot next to a standard or rule that the defendant broke each time a witness agrees with a rule violation. Have a physical therapist come off the stand to demonstrate the exercises he had your client go through.

At every opportunity, get the witness off the stand, doing something interactive, and entering into a teaching mode. The jurors will stay interested and your experts will have more credibility as teachers than as paid witnesses.

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Filed under Jury Research, Misc, Opening Statement, Trial preparation

June 29, 2012 · 11:10 pm

Why Only Positive Statements in the Opening Story?

I edit a lot of opening statements. A lot. And one of the most common mistakes I see is inserting negatives into the story structure. For example, stating that the defendant did NOT check the pressure in his tires or the defendant did NOT take the patient’s blood pressure. There are a few reasons why putting negatives in your opening story hurts you:

  1. Time Stops.One of the rules of good storytelling (see David Ball’s book on Damages 3) is that every sentence must move the story forward in time. When you state that a defendant did not do something, you don’t move the story forward. Time stands still. Unconsciously, you lose some ground with your jurors whenever you stray from good storytelling techniques.
  2. The Unconscious Can’t Tell a Positive from a Negative. When you say the doctor did not check the blood pressure, all the unconscious hears is that the doctor checked the blood pressure. You’re working against yourself when you do this.
  3. It’s too Adversarial. As a plaintiff’s attorney, you do not want to be adversarial early on. Jurors do not trust you. To say that a defendant did not do something sounds adversarial even though saying the same thing with positives would sound neutral.

So, what do you do when you have a negative to insert into the story? You need to show by implication what the defendant did not do without saying so. This is laid out in more detail in David Ball’s Damages 3 book.

Example 1: If, for example, you need to show that the defendant did not check the patient’s blood pressure and that is a crucial part of your liability story, then start with a rule stating that “When a patient exhibits X, Y, or Z signs, a doctor or nurse must check the patient’s blood pressure every 2 hours to ensure the safety of the patient.” Then when you get to that point in the story, you say:

“11am. Nurse Judy comes into the room. She checks the patient’s pulse and notes it in the file. She checks the patient’s pupils and notes it in the file. She changes the patient’s wound. She leaves the room.”

Example 2: Let’s take another example. Say you have a case where a car malfunctions due to repairs made at by a mechanic. Orient jurors in the beginning toward the rule the mechanic broke, for example, “a mechanic must make sure to check the X valve whenever they change the oil. Expert Mechanic will tell us that this is important because the car can blow up if the valve is not checked.” Then start your story and when you get to the point where the mechanic skips that step, you say,

“Roger changes the oil. He screws on the cap. He lowers the hoist. He calls the customer to say the car is ready for pickup.” Jurors know by implication that he did not check the valve.

If you have oriented jurors toward the rule ahead of time, they will be on the lookout for the point where it was broken. When you allow jurors to infer the action themselves, they become much more trusting of the conclusions they draw than if you had told them outright.

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Filed under Opening Statement, Trial preparation

June 7, 2012 · 8:38 pm

Confidence is Key

In doing some Voir Dire Coaching sessions with young attorneys and dropping in on trials in my area, I have noticed that many attorneys lack confidence. With tort reform, consultants such as David Ball have come out strongly and suggested not appearing like an attorney – don’t dress in black, don’t be cocky, don’t advocate too early. I second all of that, but I fear that some attorneys are going a bit too far and appearing weak in an attempt to avoid seeming demanding and overly zealous.

There is a difference between appearing confident and appearing cocky. The former is good, the latter is bad. In my Voir Dire Coaching sessions, I recruit some mock jurors and allow attorneys to practice their voir dire while I interrupt and coach them along the way. At the end, I ask the mock jurors for feedback about the attorney: Did he/she seem like a greedy plaintiff’s attorney? Do you trust him/her? What could he/she do better? I have had a few jurors say the attorney didn’t seem confident. One juror stated, “I would follow her [meaning me] into a fire, but I wouldn’t follow you.” That says it all. You need to command the courtroom and be in control. Jurors need to trust you and believe you are competent so they can follow you. If you are following Carl Bettinger’s “Twelve Heroes” book, you know that you need to be their mentor. Mentors are strong, not weak. No one wants to follow someone who is uncertain.

When you conduct voir dire, be strong and confident, but also warm and humble. When you do opening, be clear and concise, but do not argue. When you introduce documents, be sure you know how to do so without stumbling. If you are new to litigation, consider focusing only on being like-able and confident instead of trying to follow David Ball, Carl Bettinger, Rick Friedman, and all the others. It may be too much and if you are overwhelmed, jurors will see it. You need to be their leader – calm, assertive, confident, like-able. Going “off-code” for an attorney, as Ball and Keenan would say, does not mean seeming inept or unsure of yourself. Jurors look to you for guidance. Be sure you can provide it.

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May 20, 2012 · 6:53 pm

Where You Are Losing Leverage With Preponderance

Preponderance is one major foundation of all civil lawsuits. If jurors truly made their decisions on the basis of more likely right than wrong for liability AND damages, there would be many more plaintiffs verdicts.  David Ball has done wonderful work in his Damages books teaching attorneys how to weave preponderance into a case from voir dire through closing but there may be one major area where you’re missing the leverage preponderance gives you.

My father is a neuropsychiatrist.  He has been deposed before and testified at trial.  Recently he was deposed about a prior patient of his. Afterward, we had a discussion about preponderance.  He told me that the attorney asked if various things were more likely true than not, a phrase he has become very familiar with after listening to me talk, but that the meaning of the phrase never really sunk in.  When he was hesitating on a question, the attorney asked if it was just 50.001% true and it clicked – more likely than not means only 50.001% – and he quickly answered the question that of course it was at least that probable!  When I asked what he thought “more likely than not” meant, he said it obviously did mean 50.001% but that without the percentage being directly pointed out to him and without time to really sit and think about the meaning of the phrase, it just meant a lower standard than “beyond a reasonable doubt.”  In asking a few other doctors about their perceptions, I got the same answers.

You may be losing ground with your own experts as well as cross-exam of the defense experts if you are not clearly pointing out that “more likely than not” means 50.0001%.  While it’s obvious that the phrase can mean nothing more than that, I’m finding that many people do not think hard enough to put it in those terms. Make sure to explain what it means in percentage terms and if a witness is waivering, remind them that it only means 50.001%.

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Filed under Burden of Proof, Voir Dire

May 8, 2012 · 1:55 am

Maximizing your Budget for Voir Dire

The more I am called in to help attorneys with jury selection, the more I realize their money may have been spent better elsewhere. Am I advocating that having a consultant attend voir dire is a waste of money? Absolutely not. But unless you are skilled enough at conducting voir dire, you may not be able to elicit the attitudes from jurors that your consultant needs in order to guide you as to which jurors are good or bad for your case. I have attended one too many voir dires where the attorney was confusing, wasting much of their limited voir dire time trying to re-explain themselves to the jurors who sat with furrowed brows or failed to nail down cause challenges thereby losing multiple opportunities to make their peremptories go further or asking questions in a format that elicits only the politically correct answers.

Here is my suggestion. Gather 12 people and bring them into your office. They don’t need to match your venue’s demographics because you don’t care what they say, you only care that you have bodies to practice on. Pay them in pizza. Have another attorney play judge and try to rehabilitate your jurors after you set the grounds for cause challenges. And finally, have your consultant there to critique you during the process. Practice staying on schedule, getting jurors to talk to one another, getting jurors to give you “bad” answers, and getting jurors to strongly commit to cause-challenge answers. Don Keenan and others have been suggesting this, but I know not nearly enough attorneys are doing it because I am at all of your voir dires!

I would much rather send an attorney into voir dire prepared and without me than to be unprepared and have me there but not elicit information I need to be helpful. If you have the budget to do a voir dire focus group and have a consultant at voir dire, by all means, do both. After all, the focus group should only take a few hours. But if it’s one or the other, I would STRONGLY suggest using your consulting budget on voir dire practice. Besides, it will pay off not only for that case, but for any future case. That is money well spent!

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Filed under Jury Research, Misc, Voir Dire