Focused Feedback: What Juries Really Care About Part 2

In addition to representing my own clients who have sustained serious injuries, other personal injury lawyers around the state also hire me to run mock jury focus groups on their behalf. This year, I am on track to run over one hundred focus groups for other lawyers. (Of course, I also frequently run these on my own cases too.) My goal in running these focus groups is to help my colleagues on the plaintiff’s side discover the weaknesses in their own cases so that they can either improve the settlement value or the likelihood of success at trial.

In conducting nearly one thousand focus groups over the last decade, I have helped other lawyers improve their clients’ cases. But more importantly, these focus groups have helped me to become a better advocate for my own clients. Along the way, I have learned that juries care a lot about things that do not have a thing to do with the law read to them by the judge.

Issue 2: Negative Attribution

Negative Attribution is a phenomenon present in every personal injury case. At its core, Negative Attribution is a juror’s instinct to criticize a Plaintiff’s actions. For example:

• In a medical malpractice case concerning a botched surgery, a juror may question why the plaintiff did not first obtain a second opinion. The juror might say “I would not have let that doctor operate on me.”
• In a car wreck case, the juror might question the plaintiff’s decision to drive. The juror might say, “I would not be out at night on a holiday. That’s when all the drunk drivers are out.”
• In a slip-and-fall case where a plaintiff slipped on a greasy floor in the supermarket, the juror might question whether the plaintiff was looking out for hazards. The juror might say, “I would have noticed the sheen of the slick ground.”
• In each of these cases, jurors use these criticisms to justify why the juror themselves would never find themselves in the shoes of the injured plaintiff. After all, who wants to be seriously injured and standing in a courtroom with their hand out, asking for money?

Plaintiffs already face a tall task when they walk into a courtroom. They have filed a lawsuit against a person or company seeking money damages. Insurance companies and the media have conditioned our society to be naturally skeptical of those people. (For example, the “McDonald’s Hot Coffee” case is perhaps the most misunderstood civil case in modern times. The plaintiff there suffered horrific burns because McDonald’s brewed its coffee to an obscenely high temperature.) As a general rule, people don’t like to see nurses and doctors on the stand criticized for not doing a very tough job well enough. They don’t like to see a member of the community being cross-examined for inattentive driving. And so on. To top it off, the insurance companies hire defense lawyers whose sole job is to discredit every claim that a plaintiff makes. Couple all of this with a juror’s knee-jerk reaction to rely on Negative Attribution to avoid the thoughts that they themselves could be in this position, and it is a wonder plaintiffs ever win.