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Commentary: Jury consulting helps set direction at trial

There are many articles out there — mine included — that will attempt to convey to the reader how beneficial jury consultants can be. We can help shape a case in jury-friendly ways, prepare difficult witnesses, and help shape themes and arguments.

But as attorneys, it’s natural for you to want some evidence to support those claims.

Herewith are two case studies detailing how jury research specifically made a positive impact on a trial.

1) Lanham Act case

A retrial was granted over improper jury instruction in a case involving alleged false claims of the effectiveness of certain baby products, thereby hurting the plaintiff in the marketplace. The case had gone poorly the first time, ending in a multi-million dollar verdict.

Enter the new firm, my client. As the firm was strategizing about the retrial, they were struggling about whether to submit a ruling to the jury that the defendant had received from the National Advertising Department of the Better Business Bureau. It contained some helpful information but (as is usually the case) also some information that could have been misunderstood by a jury. How would jurors interpret the ruling?

The firm wanted to know the impact the ruling would have on their case, so we set up a conditional jury research exercise: Two panels heard the case with the NAD ruling and two without it. By isolating that aspect of the story, we thought we could definitively know what effect, if any, the NAD ruling had on the case.

The research showed us that the NAD ruling did not hurt our client’s case and even worked in its favor, as we were able to use it to show good faith. That, in combination with some bad facts on the plaintiff’s side, ultimately convinced the jury that the plaintiff suffered no harm and the defendant’s conduct was not egregious. Despite some potential risks, the client decided to forge ahead using the NAD ruling, something they would not have risked doing without pre-testing.

2) Race and disability discrimination and retaliation

This case involved a medical specialist who worked in a high-risk setting in a hospital that serviced mostly low-income and immigrant populations. The physician was African-American and had a disease that forced him to walk with a cane. He had received seven “write-ups” for his care in a short period of time after receiving very few for the first 15 years he was employed there, which triggered an automatic peer review process within the hospital.

Before and during the peer review process, he was not promoted to department chair, and following the review, he was ultimately terminated. Hospital policy dictates that physicians not be notified of a review process right away. At no time during the entire process did he complain about discrimination from his supervisors, with whom he had worked for 15 years. The hospital had given him multiple good performance reviews leading up to, and including, the time period where he had the write ups; thus, there was no negative documentation other than the patient deaths (or other adverse outcomes) and other staff complaints about his judgment and orders on a case.

The plaintiff had several things going for him. He was a minority himself and serviced a minority area with lower-income individuals. He could have taken a private practice job or worked in a higher-paying area but chose not to, in order to dedicate his practice to people in need. His specialty involved high-risk patients where death was not uncommon. He had prestigious training and had earned several accolades over the years. Our firm’s client, the hospital, did not have clean policies nor did it necessarily follow those policies strictly. We needed to understand what the jury might do with the weaknesses in our case.

We did a jury research exercise to test the strength of the plaintiff’s claims as well as the hospital’s conduct. The research revealed that the jury was highly concerned about the doctor’s conduct but did not hold that against the hospital, the doctor was not particularly likeable, and the hospital could sufficiently show that there were no race-related reasons to pass him up for the promotion.

However, the jury had some concerns over the disability issue, as there was evidence about commentary on the state of the plaintiff’s health by supervisors and the jury was suspect of the hospital’s policies and procedures. The jury also had reservations about whether the plaintiff received due process, a finding that could have had a carryover effect into plaintiff’s claims of retaliation.

Ultimately, jury research compelled the hospital settle the case, thus avoiding the cost of trial and a potential “split the baby” verdict between race, retaliation and disability discrimination.

Julie Campanini is the founder and principal at Trial Insights. She can be contacted at Julie@trialinsights.com. A version of this column originally appeared in Massachusetts Lawyers Weekly, sister publication to The Daily Record.