Posted by: johnocunningham | August 17, 2018

Mock Juries and Focus Groups

For some years now, leading trial advocates have told me how much they value the input from mock juries and focus groups composed of people likely to be demographically representative of actual juries. For a long time, I have also participated in focus groups for marketing purposes, and I have seen how powerful they can be in terms of providing valuable feedback for improving products, services and marketing.

But only recently have I had the chance to participate in a mock jury, and it was an eye-opening experience. Based on what I learned, I would have to agree with the trial expert who told me: “If you are not using focus groups or mock juries in your major cases now, you are flying blind.” He went so far as to say that “it is borderline malpractice to ignore these tools.”

Here is a sampling of just some of the many things I learned from my experience as a mock juror listening to a medical malpractice case:

  • Group dynamics can make people shift their opinions in unexpected ways, and people really do grapple with coming to a consensus even though many start out with strongly held opinions that seem inflexible.
  • The conduct of an attorney in cross-examining a witness will be closely scrutinized, and can affect his client’s case, particularly if the lawyer is perceived to be hard on a witness (and I would add that male lawyers should tread very carefully with women witnesses, even if the women are professionals in competitive fields).
  • Factual and scientific details can be very hard to remember, even for the smartest jurors, who can end up debating what someone actually said, so it makes sense to ask the judge to allow jurors to take notes – they really do help with recall.
  • It is amazing how many jurors will totally dismiss the testimony of experts because they are perceived as nothing more than paid shills – lawyers should spend some time developing not just the credibility of an expert, but the reasons – beyond financial – that the experts are showing up to offer testimony.
  • Jurors can come up with truly pitiful damage assessments for “pain and suffering” without death, so lawyers have to develop this testimony carefully, being careful to neither under-develop the evidence nor gild the lilly… I heard several mock jurors come up with estimates of zero to $50,000 for the pain and suffering of a person who had multiple surgeries, major life disruptions and a lifetime of residual pain and discomfort (even when we were told to assume the total accuracy of the plaintiff’s testimony).
  • Jurors can decide that someone is completely unbelievable based on one statement, so lawyers must tell their witnesses to be 100 percent accurate. In this case, jurors dismissed much of the testimony of someone who made just one factual allegation that seemed very unlikely to the panel under the circumstances.
  • Jurors can decide that someone is unbelievable based on demeanor evidence, noting when someone shifts in their seat, fails to make eye contact, or just seems perturbed at questioning, so witnesses have to be well-prepped before they take the stand.
  • Jurors will grant an incredible amount of deference to learned doctors, and give even greater credence to the decisions of a team of doctors, so any advocate trying to prove that a team decision about patient care was wrong had better be prepared to show how team decisions were made and could go wrong due to group-think, lack of participation, deference to the treating doctor, or whatever the cause.
  • At least one juror noted that “to whom much is given, much is expected,” leading them to conclude that the doctor was paid to be right, and should be accountable for any failed result… this person’s candidly expressed belief caused others to speak up about the doctor possibly being wrong, shifting the initial group dynamic a bit from the initial deference to the doctor’s training.
  • When a doctor refers to a patient consent form as “paperwork,” it can be offensive to some jurors. I think jurors likely want to believe that their consent to surgery is taken extremely seriously.
  • On the other hand, the fact that a written consent is routinely sought just minutes before surgery, often when the first mention of serious or fatal consequences arises, does not seem to bother many people simply because “that is the way it is always done”… the medical profession has created for itself almost a standard of practice in treating consent to treatment as perfunctory.
  • Lawyers who want jurors to listen carefully to the evidence should do everything in their power to make sure that proceedings start and stop on schedule… I saw first-hand how anxious and even angry some people can be about the perception of having their time wasted just sitting and waiting for things to get going.


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