Discovering the things jurors might latch onto, before trial

Bill Shapard Jr., PRC
December 7, 2020

I love running onto case studies that expose the need for utilizing pretrial focus groups. Below are three posted on the Jurorproof blog written by Jessica Hoffman Brylo, J.D., an attorney and trial/mediation consultant from Denver, Colo. I think these are worth sharing. Please let me know what you think:

Case Background: Medical malpractice case against a hospital. Plaintiff lost large amounts of blood during a 5-6 hour surgery. Surgeon and nurses did not find or fix the leak for a while. Plaintiff died a month later still at the hospital of kidney failure related to the blood loss. Plaintiff had pre-existing conditions and was overweight.

  • From the Mouths of Jurors: “I think she had a death wish because she was in bad health anyway and she brought in a living will when she entered the hospital. If you have a living will and you bring it to the hospital, you’re giving up on life.” [Note that this issue showed up in both focus groups with 1 or 2 jurors in each group believing the Plaintiff wanted to die and therefore awarding no damages]

Case Background: Brain injury from car accident case. Plaintiff still holds a job as a professor at a community college. All doctors and all neurological testing shows brain injury. Pre-existing anxiety which was controlled by taking Xanax.

  • From the Mouths of Jurors #1: “I think he had a drug problem. Taking Xanax that long over time could cause a brain injury or his symptoms.”
  • From the Mouths of Jurors #2: “I think he had a drinking problem. My father was an alcoholic and he died from the alcohol use. He often forgot things too so I think the plaintiff’s issues are from drinking.” [No evidence of drinking at all]

Case Background: Car accident case with back and neck injuries. Plaintiff is on morphine multiple times a day to control the pain.

  • From the Mouths of Jurors: “I think she wants money to be hopped up on morphine her whole life…she’s on morphine for dramatic effect and will probably quit when the lawsuit is over.”

[Remember this case next time you assume that jurors will believe your client is severely injured because of the amounts of pain medication they are on]

Please don’t do disservice to yourself or your clients. Jurors will often latch onto issues in your case you didn’t even know existed. By finding out what those issues are ahead of time, you will save yourself a surprise verdict or simply make a more compelling argument.

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Bill Shapard Jr., PRC
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