“Face the Jury” is a podcast dedicated to all issues involving medical malpractice – what it is, how to spot it and how to prevent it while protecting yourself and your family.
Today we’re returning for more of our conversation with John Campbell, founder of Empirical Jury, to discuss the science of polling and the art of influence in the melding of big data analytics in jury research. Let’s jump back into our conversation where we discussed exactly who the people participate in jury surveys are and how their opinions become the data points that power a new method of jury research.
Lloyd: I’ve got a couple of questions, and I bet our listeners do too. First, where do you get your folks, and how do you get them to engage with the story meaningfully so that you can trust the responses?
John: The short answer is that there are so many platforms people can access for simple jobs and tasks. At any given time, millions of people are online looking for work. It operates like Uber in the gig economy; you can drive for Uber when you feel like it. You could drive a little or a lot.
Employers need somebody to give feedback on copy, read a chapter of a book, look at photos of haircuts, or do marketing studies. Some academics need people, so there is this economy out there that may have been a surprise, but it is now robust. You can post any job and say, “I’ll pay you X amount of dollars,” and people can choose to do the work.
If we need 400 or 500 people, we can get them in an afternoon, especially a national sample. You can even target down to the state and city levels through various services. They’ve developed all sorts of tools because companies use them for marketing and understanding markets. We could give a jury study to only people who drink red wine, which wouldn’t be very useful. Still, the level of targeting has gotten impressive.
Once the participants are chosen, our job becomes making the case as digestible and simple as possible. Unlike an in-person focus group, somebody can’t just raise their hand and say they’re confused. We work out what we find, and that’s a good process for the lawyers we work with because it makes them distill their case into clean, simple ideas with clear headings with clear arguments to get them to the right defense. Sometimes I say, “No, I need more from the defense, and I want more from the defense. Let’s meet again and talk about it again.” Even then, that exercise is useful.
Llyod: That’s the feedback I’ve heard from some of my close friends and colleagues who’ve been working with you for months now. This one friend describes you as sort of a personal trainer for his cases because you force him to sit down, think and work through the defense side. It’s a piece that doesn’t feel as good if you’re the plaintiff’s lawyer.
We want to focus on building our case and presenting our case in the best possible way. It’s sort of painful to spend time with the defense case and contemplate the weaknesses of the plaintiff’s case; it causes anxiety, fear and stress.
I’m curious what you’ve learned from interacting with many sorts of focused jurors. Any major lessons?
John: A few big takeaways that are surprising to most lawyers, but now we take as a just a truth in the office, is that the amount an attorney requests in damages does not simply affect the damages they receive. It could decide whether or not they win the case. When I say that to people sometimes, I see a look in their eye.
How much I ask for could affect whether I win? But we see that all other things being equal, the amount of money requested does not affect damages; it affects liability. Imagine a juror who’s on the fence because the case is tough on liability, and they’re not quite sure what to do. If they hear a damage request in an amount that seems right, good and fair to them, that may be enough for them to say, “OK, I’m going with the plaintiff.”
On the other hand, if they hear a number that sounds greedy, it may be enough to tip them to the defense vote. Then they don’t need to do the work. We sometimes see dramatic swings in win rates based only on how much an attorney requests, which scares me because many of us, including myself, pick that number out of thin air from our gut.
We’ve seen now that number is critical to the win rate, and even if you have a slam dunk case on liability, you must find what I call the “Goldilocks zone,” not too much, not too little. When jurors line up, they can move with you to that request, which can make a huge difference in the outcome of a case.
One other thing I’ll mention is economic damages. We had a client that received a great $38 million verdict in Vegas. We had the right to seek an economic damage request in the case for the mother who lost her daughter on the basis that the daughter once said she would buy her mom a home when she got older. We could have claimed that the daughter would provide financial support to her mother and seek that eco damage.
We tested the case and found that removing that one request for economic damages increased the case value by $8 million and increased the win rate. Attorneys need to consider this fusion effect between damages, how they’re treated, requested, and what they can do to strengthen the overall case.
Llyod: I want to drill down on this concept of eco damages, like past medical bills and lost wages. You’re touching on this concept of anchoring. The question is, if you’ve got a case with an overall value north of $10 million with $200,000 of economic damages, is there an anchoring effect if you ask for $200,000, or will a jury seize on that number and lead to a much lower result?
John: I think you can have a low anchor. When we don’t know the answer to a question and a number is given to us, we use that number as an anchor. Jurors don’t know how to give noneconomic damages and reports. If we say $10 million and they go back to the jury room and say I would never give Llyod $10 million, they still negotiate off it. And there’s an anchoring effect if you introduce another number like $200,000. The risk is they will work off that number.
You’re also putting jurors in a different mindset. If you’re fighting over medical bills and the defense is challenging future care and past care, then the jury is going through that line by line. That’s a very different analytical task than thinking about noneconomic damages. If the jurors get so detailed when thinking about noneconomics, there’s some risk that we don’t want them in that mindset.
Lloyd: Your credibility as an attorney is the most valuable asset you bring to the case, and if you do things that undermine your credibility, you’re damaging your client. My experience is that jurors will use the evidence available. If there’s a smaller number, they will use that in their analysis. Suppose the jury has to scrutinize, analyze and determine economic damages. In that case, there’s a math side of their brain, but also philosophical, and in some ways, spiritual. It’s a lot to ask of a jury, and that’s the reason we won’t mention economics. The jurors are there to be experts in human loss and suffering.
What have you learned about how COVID will impact juries from our perspective? There are billboards elevating health care professionals into this hero status. Can you talk about your research in that regard?
John: Almost a year ago, we took three medical malpractice cases. The exogenous shock was COVID, the cases otherwise were the same, and the question was, is it true that somehow all these medical malpractice cases are destroyed? For every juror who liked doctors more, another juror liked them less.
Trump supporters tended to like lawsuits less and started to be favorable to plaintiff attorneys in medical malpractice cases. On the national news, when people were protesting in the streets, many of them were in trucks with Trump banners, and the people who stepped out in front of them to counter-protest were wearing medical scrubs.
In most medical malpractice cases, unless you have egregious misconduct by the doctor or nurse beyond negligence, the case will be focused more on the institution than the doctors and nurses. The doctors and nurses are victims of a hospital or a medical center that failed, and the jurors have no sympathy for them.
I don’t think it’s harder to win a medical malpractice case now than it was pre-COVID. If anything, it has reminded us that in every case, we should be asking to talk about the system and the system failure before we ever talk about an individual health care provider.
Llyod: In Georgia and other states, we have these big healthcare empires – enormous healthcare companies gobbling up smaller independent practices, and it’s almost universal. My father was a physician and had a small practice outside of Atlanta, and those are gone. There’s a reason for doing it, for economic forces at play.
There are points you mentioned I want to touch on. This country has political division, which is not a spoiler alert for anybody listening. As trial lawyers, we don’t have the luxury of just picking jurors who might align with our personal value set. We must speak to the universal values of all our jurors if we want to be successful.
I think that involves aligning the values of our case with the values that speak to conservative jurors, which might be personal responsibility, respect for authority, and the sanctity of life. If you’re talking to your left-leaning jurors, you might speak stronger on issues of justice and equality. You’ve got to find the universal values in your case that will speak to both sides of the spectrum.
My first post-COVID case was a medical malpractice case focused on one single factual issue involving whether the defendant doctor and his previous lawyers committed fraud and hid medical records. The defense lawyer asked the jury a question, “where do you get your news?” There was resistance to that question, and I saw jurors react negatively towards the defense lawyer.
How can lawyers speak to people on the different political spectrum?
John: That information is often predictive, so we ask that question in surveys and see that where people get their news is predictive of how they act in a case. The challenge you’re identifying is taking predictive data to the real world. There are two problems: maybe you’ll get it, but the jurors will be mad at you for asking. The other is that you either have people who won’t tell you or lie to you, and that’s dangerous.
If you’re going to ask that question, it should be on a questionnaire because that minimizes the impact of asking somebody face to face. I’m a fan of the plaintiff and defense agreeing on questionnaires and giving them to jurors both for efficiency and because it allows people to answer in a way that feels more anonymous and gets honest answers.
Lloyd: I think jury selection and opening statements are the two most important parts of a trial. That’s where I believe you will win or lose the case 90% of the time.
If folks want to engage and talk to you about their case, what kind of case do they bring?
John: I always say you need a very high six-figure or low seven-figure case. If somebody has a case worth $1,000,000, my view is that case is already a slam dunk on liability. If you can add $200,000 or $300,000 to the verdict, it makes perfect sense to have us involved. The attorney does better, and the client does better.
Stay tuned for Season 2, Episode 7 of Face the Jury.