How to Get a Malpractice Jury on Your Side
Rice, Berkeley, Medical Economics
For doctors facing malpractice trials, the opposing teams used to consist of the plaintiff, the defendant, and their respective lawyers and expert witnesses. Increasingly, however, both sides are calling upon another player: the trial or jury consultant. Such consultants may be having a significant impact: At least, membership in their national organization has nearly doubled in the past five years to 350.
A consultant's services can include community-attitude surveys, mock-trial "focus groups," jury-selection advice, witness preparation, and post-trial juror interviews. The goal: to predict how jurors will react to testimony, evidence, and strategy and to help sell the defendant's case--or the plaintiff's--to the jury.
Local surveys can reveal opinions, beliefs, and values that may influence jurors in a malpractice case. In the Bible Belt, for example, there's a common belief that misadventures are "God's will." In some rural areas, on the other hand, people--and patients--are expected to take responsibility for their own lives. Jurors who share such attitudes may be less likely to pin liability on doctor defendants.
Community-attitude surveys can even assess feelings toward the defendant and his conduct. A plaintiffs' lawyer recalls a recent case in which a small town GP repeatedly misdiagnosed what turned out to be a fatal illness in one patient. But when a survey showed that nearly everyone in town--the potential jury pool--knew and respected the doctor, the lawyer figured he'd better settle before trial.
Trying out a case before the trial
In addition to opinion surveys, consultants assemble focus groups to get typical jurors' reactions to specific issues in a case. Usually six to 10 people are included. The proceedings may be observed and videotaped through a one-way window. Some sessions take the form of simulated minitrials to test strategies, arguments, evidence, exhibits, the defendant physician's credibility as a witness, and the possible range of damages. Afterward, the lawyer may modify his strategy and test the revised presentation on subsequent groups.
Rick Fuentes, a psychologist who heads the Atlanta office of Litigation Sciences Inc., recalls a case involving claims of more than $10 million against a number of physicians. Focus groups showed that the defendants could do little to counter sympathy aroused by the plaintiff's horrible injuries. "Given that consistent reaction, and the potential for a huge award, we strongly recommended settlement," says Fuentes.
In cases with multiple defendants and potentially high damages, Phoenix-based consultant Hale Starr also uses focus groups and questionnaires to do a "risk assessment" based on how typical jurors assign blame and award damages. "Say we find that our client has a 40 to 50 percent chance of losing the case, and if he does, he faces a risk of $2 to $3 million in damages," says Starr. "In that event, he should think seriously about settling."
Mark Mandell, a plaintiffs' lawyer in Providence, R.I., hires a consultant to conduct focus groups before all his malpractice cases. How can he afford to do that? "I can't afford not to," he says.
"Focus groups give you the confidence to say No to a settlement offer," Mandell explains. He recalls one case in which the defendant's lawyer offered to settle for $30,000. "Before we assembled focus groups, we really weren't sure what the case was worth," he recalls. The first group estimated the damages at $25,000. But after Mandell adjusted his presentation based on reactions from successive groups, the last one came up with more than $1 million. At trial, Mandell won a jury verdict of $2.8 million, although the judge later reduced the award to $800,000.
Keeping the wrong people off the jury
Experienced consultants and trial lawyers say there's no sure way to pick favorable jurors. "You're not really selecting a jury; you're 'deselecting' jurors," says Paul Tieger, a plaintiffs' consultant from Hartford, Conn. …