Articles Posted in Litigation Strategies

I was trying an auto accident case recently where the Plaintiff’s lost wages were at issue. The Plaintiff did not have an “off slip” from a doctor. Instead, she took off work when she felt like her pain dictated taking a day off. On cross-examination, my client was grilled—over objection—about whether the medical records sitting at the trial table contained an “off slip” from a doctor. The client admitted – somewhat sheepishly that she got no note.

In his State of the Union address in January 2004, George W. Bush told the American people, “We do not need a permission slip to defend America.” How much energy do you think the administration spent to come up with that line? When a metaphor comes out of the Republican machine—and the Democratic machine, too, to be fair—they gave it some thought. Regarding the Republicans, George Lakoff’s Don’t Think of an Elephant offers great analysis into the GOP’s careful consideration of the use of language and metaphors. Lakoff writes:

What is going on with a permission slip? He could have just said, “We won’t ask permission.” But talking about a permission slip is different. Think about when you last needed a permission slip. Think about who has to ask for a permission slip. Think about who is being asked. Think about the relationship between them.

Personally, a permission slip reminds me of being a kid, which reminds me of fun. But I get the point. In my case, my client was a well-respected scientist. The notion of this near workaholic scientist needing a permission slip to take time off from work was more than a little ridiculous.

One bizarre transformation that occurs when a citizen becomes a juror is the development of a poker face. Something about that power that turns people into Mike McDermott. (“Listen, here’s the thing. If you can’t spot the sucker in your first half hour at the table, then you are the sucker.”) I would like a psychologist to write an article about this phenomenon. Continue reading

Wisconsin Lawyer (link since removed) has an interesting article on the impact a juror’s political bent has on the amount of damages awarded in personal injury cases.

The study contained 476 mock jurors who identified themselves as either Democrats or Republicans. The jurors took part in mock trials for cases involving a personal injury, product liability, or medical malpractice and were divided into four basic categories of damages, which were determined based on how much they awarded during a mock trial: no damages, low damages, medium damages, and high damages.

No Difference in Party Affiliation

The results showed that being a self-described Republican or Democrat was not predictive of the damage award. In fact, 22.3 percent of self-described Democrats awarded no money for damages, while 20.8 percent of self-described Republicans awarded no money.

Reading over this post again in 2019, I can report that I am repeatedly amazed at how some of the strongest jurors for the plaintiff in our focus groups are often the same people that list Donald Trump as the person they admire the most on their questionnaire.  But it is not surprising.  People who support Trump are often not fans of the system and liked him because he is a disrupter.  They are not purely economic Republicans.   So on some level, this makes sense.  I don’t think I would want on the jury someone who says the person they admire most in history is Adam Smith or  Friedrich Hayek (or Paul Ryan, for example).

Does this mean Plaintiff personal injury lawyers should ignore information, assuming the lawyers have access, about a juror’s party affiliation? No. Despite this broad finding showing that there are no differences between Democrats and Republicans, even the study does not suggest that party affiliation is not a variable to consider. The study found that many stereotypical Republican attitudes from jurors lead to lower verdicts. But the study highlights that nuanced personal views are more helpful in projecting damage awards than mere party affiliation. Continue reading

Risk & Insurance had an interesting article about “scientific perspective” in predicting jury verdicts. The premise of the article is that the quality of jury consultants varies wildly because different jury consultants use different methodologies. In the litigation world, there are no barriers to entry for those who seek to be jury consultants. The only thing you really need to do is put the words “jury consultant” on your business cards. As a result, many jury consultants are “amateurs in terms of their training” to predict jury behavior.

The author believes — and I think correctly—that accident and malpractice lawyers often make choices based on who the lawyer likes (and respects) as opposed to the jury consultants’ credentials and background in the science of predicting juror behavior.

As a result, the variable quality of jury consultants leads to mixed results on the efficacy of jury verdict research. Settlement decision makers (plaintiffs’ lawyers, defense lawyers, and adjusters) often question the reliability of research when coming up with a dollar figure for dispensing with a case, and end up instead making major decisions on gut instincts (see also: George W. Bush).

The author, Courtroom Sciences’ National Director of Litigation Consulting, George Speckart, contends that these gut decisions create losses that are more expensive than the costs of scientific jury research. Continue reading

David Davis, a Massachusetts based jury consultant, offers five thoughts in The Jury Expert (link since removed) on the psychology of how jurors process requests for damage awards I think interests accident and malpractice lawyers.

I found of particular interest his theory that consumers—and by implication, jurors—have a propensity to judge precise amounts of money to be lower in magnitude than similar round prices. The reason is that we use precise numbers for small amounts and round numbers for larger amounts. The example Dr. Davis provides is that a precise number like $325,425 is seen as lower than $325,000 even though obviously the former number is a higher amount.

The implication for personal injury lawyers is obvious: make a request for damages that is a specific amount and back up that amount with some logical foundation. David Ball, another jury consultant that I have relied upon an impressive deal in my damage theories, disagrees with the utility of per diem arguments. But our lawyers often use per diem arguments to come to a specific number and have had a lot of success. This does not prove the efficacy of per diem arguments, but it is hard for trial lawyers to ignore their own experiences of what is successful for them. If I noticed a correlation between wearing a red tie and successful jury verdicts, I’d faithfully keep wearing red ties.