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Friday, August 08, 2008

Loss of Chance = Good Chance Jurors Get Lost

The MA Supreme Judicial Court recently handed down a decision in Matsuyama v. Birnbaum, permitting plaintiffs to sue for “loss of chance” in medical malpractice cases. In the opinion, written by Chief Justice Marshall, the Court acknowledged that, in keeping with jurisprudence in most other jurisdictions,

“Where a physician’s negligence reduces or eliminates the patient’s prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages.”

While the opinion limits its scope to med-mal cases, the logic is certainly broad enough to be applied to other kinds of torts in the future.

The loss of chance doctrine is hard enough for lawyers to understand. Imagine trying to explain it to a jury. Well, that is exactly what litigators and judges will now be faced with in the hundreds of medical malpractice cases tried annually in Massachusetts. One need look no further than the language of the SJC opinion to appreciate how daunting a task this will be:

“Applying the proportional damages method, the court must first measure the monetary value of the patient’s full life expectancy and… the defendant must then be held liable only for the portion of that value that the defendant’s negligence destroyed.”

As bad as juries are at detecting witness deception or understanding their instructions, they really stink at applying probabilities and percentages. Add this processing deficiency to the inherent unpredictability of damage awards and we have quite the witch’s brew for chaos in the med-mal litigation world. (See my presentation on how badly jurors handle such tasks at

On the one hand, greater uncertainty about jury verdicts can support the sort of divergence of opinion that scuttles settlement negotiations. On the other hand, defense attorneys and insurance companies tend to be risk-averse, so this doctrinal change could provide greater incentive to settle out of court.

One thing that is clear is that attorneys (on both sides) had better learn quick how to argue loss of chance to juries. That a particular explanation makes sense to you does not guarantee that it will make sense to a jury of laypersons. This is just the sort of complicated task that lends itself to false experts taking over deliberations. Before you give your first closing argument on loss of chance, I’d strongly recommend that you test it out on a focus group panel first.

Similarly, there will be disagreements about the wording of loss of chance jury instructions that will be need to be resolved by trial court judges. Before you file motions with recommended language, you should test out that language on real people to make sure it generates the understanding of the law that you are trying to achieve. I can also help you track down studies on such language from jurisdictions where loss of chance has been available for some time.

Monday, June 09, 2008

Pro Bono Trial Consulting: Who Knew?

I just returned from the annual meeting of the American Society of Trial Consultants (ASTC) in Chicago, (where tornadoes threatened to tear the roof off the hotel). While our organization has the sort of committees you might expect (professional visibility, membership, etc.) it also has a committee devoted to the provision of pro bono trial consulting services to indigent litigants.

While we have long kept track of those consultants willing to provide pro bono service, (so noted in members’ online profiles on the ASTC website), the committee has really started to cook over the past year. Since most attorneys don’t even know that there are trial consultants willing to work for free (or reduced rates), I thought it might be helpful to outline what this committee has been up to and what are its plans moving forward.

Largely through the efforts of Cynthia Cohen in Los Angeles and Alison Bennett in Dallas, two regional teams have been formed to assist attorneys working pro bono in those two metropolitan areas. These teams include jury consultants, litigation graphics specialists and focus group facility managers, so help is available for virtually any kind of case.

The two regional team leaders have been hard at work building connections between ASTC and the agencies that coordinate pro bono legal services in their areas. Cynthia and Alison have met with dozens of lawyers, legal aid coordinators, law professors and clinic directors over the past year. The response has been a resounding, “Wow!” as attorneys are surprised and delighted to learn that help can be available for their cases.

In the coming year, the ASTC Pro Bono Committee (of which I am now a member) will be looking to advance our visibility to the legal community. We want to make sure that those lawyers who need us know that we’re here. We plan to establish a clearinghouse for cases, located on the ASTC website, to match lawyers in need with consultants in a position to help.
Given the dramatic early success of the Dallas and Los Angeles teams, we also hope to establish pro bono teams in other regions of the country. We don’t have nearly the number of consultants in New England as they have in L.A. or Dallas, but I hope to get a Boston-based pro bono team up and running as soon as possible. Fortunately, much of a trial consultant’s work can be done at a distance, so it won’t be essential to have all team members nearby.

We also plan to assemble a comprehensive set of materials that our members can use to make presentations to lawyers groups about our pro bono initiative. So, if you think that your group would like to learn more about what trial consultants can do for you, please let us know.

This push in pro bono activity is a work in progress, but you don’t have to wait for us to get everything up and running to make use of our resources. Do you have a case that could really benefit from some trial consulting? Do you need advice about jury selection strategies? Are you struggling to put together materials to support your motions for a supplemental juror questionnaire or attorney conducted voir dire? Could you really use a professionally produced timeline to help you argue your case to the jury? Contact us now. We’ll help if we can.

You can reach the webpage of the Pro Bono Committee of the ASTC here. Or, feel free to contact me directly at .

Tuesday, June 03, 2008

Judge in Neil Entwistle trial has her head in the sand

Neil Entwistle is on trial for the murder of his wife and child. The details are quite sordid and appalling and not particularly relevant to this post.

This case has generated large-scale media attention, in Massachusetts, the rest of the US, and in England, Mr. Entwistle's home country. It is rather standard by now for the defendant in a case of this magnitude to use a trial consultant to help identify potential biased jurors. The primary concern is the saturation of the jury pool with pretrial publicity, especially that which is prejudicial to the defendant.

Massachusetts has one of the most liberal statutes with respect to the availability of public funds with which indigent defendants can hire experts. The language of the statute reflects the basic premise that if a paying defendant would reasonably hire such an expert, the indigent defendant should be able to, as well. Unfortunately, the statute is rarely interpreted as liberally as it appears on its face. So far as I know, no defendant has ever been awarded public funds to hire a jury consultant.

Judge Diane Kottmyer flatly refused requests by Entwistle's attorneys for money to pay for a trial consultant in this case. Her rationale was that it had never been done before, so she didn't have to do it now. She never addressed the actual merits of affording Entwistle this procedural protection in a case so prominent in the public eye. Judge Kottmyer assured counsel that she could handle the issue of pretrial publicity by issuing the jury proper instructions to disregard anything they might have heard, read or seen about the case in advance. Alas, the judge's assertion here is simply ignorant. Every single study that has ever been published about the effects of pretrial publicity has concluded that such limiting instructions are completely useless.

Judge Kottmyer similarly refused motions for attorney conducted vior dire, sequestered voir dire, a change of venue and even an extensive supplemental juror questionnaire. After allowing the lawyers to submit some questions for a questionnaire, the judge decided that she would write her own, allowing no input from either counsel.

Judge Kottmyer's mindset is a relic of a time when we didn't actually know anything about jury behavior. She believes that the best way to learn if a potential juror might be biased is to ask her, "Will you be biased?" Research into the effects of pretrial publicity show that those would-be jurors who admit to having been exposed to pre-trial publicity, but assert that they can be fair nonetheless, are actually MORE LIKELY to be biased against the defendant than those who admitted that they might have trouble being completely objective. That is, the question sorts the potential jurors IN EXACTLY THE OPPOSITE MANNER AS DESIRED. By insisting on employing antiquated procedures for jury selection, Judge Kottmyer has pretty much guaranteed that Mr. Entwistle will not receive a fair trial.

Many people will be unsympathetic to these objections, on the grounds that Mr. Entwistle is almost certainly guilty of killing his wife and daughter. Remember, however, that the question of whether he killed them is only the first facing the jury. They mush then make difficult judgments about his state of mind at the time, his level of premeditation, and whether any mercy would be appropriate in his circumstances. These factors will translate into a particular verdict, be it first degree murder, second degree murder, voluntary manslaughter or involuntary manslaughter. The jury in this case actually wields an enormous amount of discretion and Judge Kottmyer does a great disservice to the Commonwealth by placing this responsibility in the hands of jurors predisposed to view Mr. Entwistle most harshly.

I don't know what the correct verdict is in this case. I only know that I don't have much confidence in a jury so selected to find it.

Fantasy Baseball Aficionados Hit a Home Run at U.S. Supreme Court

OK. I'll admit it. I play Rotisserie Baseball. I have for more than a dozen years. My friends and I play for small stakes. It's all about pride. For those who are uninitiated, Fantasy Sports (of which Rotisserie Baseball is an example) involve participants assembling portfolios of athletes from real teams, either through a draft or auction (with salary cap). Various stats are assembled for each player and a participant's portfolio is evaluated in terms of how well his players perform.

In the olden days, it was extremely tedious to keep track of a league's standings, because one had to assemble and calculate the stats by hand, usually from USA Today or another reliable publication. The internet changed all that. Services sprung up all over the place to calculate stats for leagues at a relatively modest cost. For instance, our league pays about $10 per team for a year's worth of stats. The websites are truly remarkable. The inputting of rosters and transactions is simple and the array of stats one can peruse and customize is staggering.

This has become big business. So big, in fact, that Major League Baseball decided they didn't want anyone to be in this business without cutting them in on the profits. That's right, MLB sued on the grounds that the league held exclusive rights not only to their players, merchandise and broadcasts, but also their players' statistics, names and likenesses, as well. So, even though any guy with a calculator could comb through the paper and assemble his own stats, he wasn't allowed to pay someone to do it for him. At least, that was the position staked out by Major League Baseball.

A bunch of stats companies caved and started paying a licensing fee to MLB. A few, however, refused and took MLB to court. Judges at all levels refused to grant ownership of stats to MLB, contending that they were squarely in the public domain. Basically, you can't own history. This was clearly the right call, and this week, the Supreme Court of the United States refused to hear the case, leaving the appeals court ruling intact. MLB lost and all us nerdy fantasy sports geeks can rejoice.

Here's why I think this was a no-brainer. It's basically a slippery slope argument.

If a professional sports league were to own the stats of its games, it would, essentially, own also the exclusive use of the results of such games. As such, sports books would immediately become illegal, without paying a franchising fee. A casino could not collect or pay on a wager which relied on the outcome of a sporting event. A radio or television station could not report the results of the local teams' games because they would not own the rights to those results. Similarly, newspapers and website would have no right to publish results.

A bar could not host a victory party because it would be predicated on a victory to which it had no rights.

It would be very difficult, legally, to limit the results to sporting events. Could Angelina Jolie prevent a newspaper from publishing reports of her most recent adoption without paying her a licensing fee? Could a movie studio preclude a theater chain from reporting box office receipts for the studio's films?

Thank goodness this lawsuit is history! (Just don't try reporting on it without paying a licensing fee to the U.S. Supreme Court).

Wednesday, February 27, 2008

Why the Democrats (even Barack) should hope that Hillary Stays in the race

Many Republicans breathed a sigh of relief when Mitt Romney dropped out of the race for the party’s Presidential nomination, paving the way for John McCain to be the nominee. The conventional wisdom suggests that this move afforded McCain the opportunity to consolidate his support among the party faithful, while getting a head start actually running for President. By extension then, one might conclude that the Democratic party would benefit from Hillary Clinton abandoning her bid in favor of Barack Obama. I’m not so sure that this would actually be in the Democratic Party’s best interests.

Consider a lesson from the world of jury trials. Defense attorneys, whose clients face the prospect of punitive damages, often request that their trials be bifurcated, with the jury first hearing all evidence regarding liability and compensatory damages. In the event that the plaintiff prevails and the jury decides that punitive damages might be warranted, there is a second trial concerning how large the punitive award should be. Several studies have explored the extent to which defendants benefit from this bifurcation. The first result that we see is that juries find defendants liable less often and award smaller compensatory awards when the issue of punitive damages is kept out of the initial trial. Somewhat surprisingly, however, when juries do find that punitive damages are warranted, bifurcation increases the average size of such an award. What’s going on here?

Psychologists attribute this result to the avoidance of cognitive dissonance. When a juror is asked to calculate a punitive award in a bifurcated trial, she feels a sense of responsibility for the second phase of the trial having taken place. “I voted to hold this hearing on punitive damages so I must really believe that the defendant behaved very badly. I should really choose an award amount large enough to justify all this effort.” The juror feels uncomfortable if her prior action is in conflict with her current beliefs (cognitive dissonance), That is, as the theory goes, the juror adjusts her internal belief about the reprehensibility of the defendant’s conduct to match her decision to move to the punitive damages phase of the trial. As a result, the award goes up.

So, what does this have to do with the Democratic Presidential primaries? Voters have turned out in unprecedented numbers to vote in the democratic primaries this year. Even when the Republican nomination was still very much in doubt, democratic turnout dwarfed that on the Republican side. The main reason seems to be that independents flocked to the Democratic primaries. They did so mostly for reasons that are encouraging to the Democratic hopefuls. These independents actually liked, and wanted to vote for, a particular Democratic candidate.

This is where cognitive dissonance works to the Democrats’ advantage. What will all these primary voters do in the general election? Psychologists would suggest that the very act of voting for a particular candidate in the primary should increase the likelihood of voting for that candidate in the general election. That is, to avoid cognitive dissonance, a person who “voted for Clinton” becomes a “Clinton voter.” All of this, of course, takes place at the subconscious level and most people would vehemently deny that they could be affected in such ways. Such an affect is magnified if a person is called upon to defend her prior act. So, if a man is asked to defend his decision to vote for Obama in the primary, he will come up with reasons why Obama is the best thing since sliced bread. In doing so, he is actually reinforcing his own commitment to Obama’s candidacy.

By this logic, the Democratic Party will gain votes in the general election by securing as many votes as possible for their candidates in the primaries. So, how do the Democrats maximize the number of people voting in their primaries? Keep the race competitive. The longer that Clinton and Obama are both viable candidates, the larger will be turnout in the Democratic primaries. If lots of people turn out to vote for Obama over Clinton, many of them will also turn out to vote for him over McCain. So, Democrats should hope that Hillary wins Texas and Ohio next week.

This theory is hardly airtight. Not all primary voters will stick with the same candidate in the general election. In addition, approximately half of Democratic primary voters will disappointed about who received the nomination. How will those people vote in the general election? Polls this year suggest that Clinton supporters would generally be quite content to vote for Obama in the general election. So, if Obama wins the nomination after a close contest, the Democrats would seem to be in great shape. The landscape is more mixed should Clinton win the nomination. Her recent attacks on Obama’s leadership potential have certainly upset many of his supporters. While Bill Clinton was always well-supported by the African American community, it is not clear that Hillary enjoys similar support. If Obama were to give her a strong endorsement, I think that almost all Democratic voters would vote for her.

On balance, I think that Democrats are very enthusiastic about their choices this year. As such, the greater the number of independents and centrist voters who are brought into the Democratic primaries, the better the chance that a Democrat will be sitting in the Oval Office a year from now.

Sunday, January 06, 2008

Online Mock Trials: Real bargain or just bargain basement?

The last couple of years has seen a proliferation of online mock trial tools. The creators of these products vary with respect to how hard they push their products as equal or superior to traditional techniques for conducting jury research. In this issue of the Jury Box, I will offer my own view on the utility of online mock jury tools. Along the way, I will outline what I believe to be the advantages and disadvantages of conducting jury research online. A sizable chunk of this review will be devoted to evaluating the sources of cost savings associated with online mock trials. The lowest cost option is not always the best option.

Two types of businesses have set up online mock trial programs. Several have been developed by entrepreneurs (or market research firms), hoping to market their products directly to lawyers. Such a company typically holds up its product as a low cost alternative to hiring a jury consultant to conduct a live mock trial. Perhaps motivated by perceived competition, several trial consulting firms have developed their own mock trial protocols.

An explanation of how these programs typically work reveals that the term “online mock trial” is really a misnomer. Here’s how they work:

Nuts and Bolts
The attorney reduces the case presentation to a series of files that can be uploaded to a website. Most sites allow the uploading of text, audio, images and video in fairly standard file formats. Typically, a premium is charged for loading high bandwidth material, like audio or video. Some are better than others at connecting exhibits to the corresponding presentation or testimony. While the online service might provide a basic pre-study questionnaire and post-study response form, it is usually the responsibility of the client to provide a list of case-specific questions to be answered by each respondent.
Each online site promises to recruit subjects to participate in your study. They use a variety of recruitment techniques, which is something to which you should pay close attention. I will return to this below. The more subjects you want to use, the more you will have to pay for both recruitment and participation. Many sites allow the attorney to set the participation inducement, understanding, of course, that recruitment will be trickier the less is offered in payment.

Once the materials are loaded and subjects have been recruited, the participants are given a password to “view” the case and provide feedback. Most sites, especially the low cost ones, allow respondents to log on and go through the case whenever they want, from the comfort of their own homes (or offices!). Some sites offer you the option of having all the subjects review the case at the same time and “deliberate” in the form of text chat. This lack of face-to-face interaction is one major casualty of conducting jury research in this way.

Since the respondents are all answering questions online, it is fairly straightforward to collect and collate the data. Reports are generated automatically from collected data and the client can download them at her leisure. Only the programs run by the trial consulting companies offer to have a jury expert interpret the data and write a corresponding report.

Running additional trials, with or without tweaking of the presentation materials, is straightforward since everything has already been uploaded.

So, what are you buying?
As you can tell from this brief description, there really is no way to simulate an entire trial using this technology. It lacks much of the verisimilitude that makes a true mock trial so valuable. Rather, the technology is best employed for testing case themes or evaluating juror reaction to particular arguments, testimony or evidence. As such, these companies are really offering online focus group research, not online mock trials. Perhaps this is a semantic point, but you should be aware in advance what these programs can and can’t provide in terms of jury research.

As I move into an evaluation of online mock trials, let me be clear about one thing. Most of these programs are very well crafted. The designers have been quite thoughtful and thorough and most of the programming is well done.

Any weaknesses are not due to lack of planning or effort. Rather, they all suffer from a fundamental shortcoming in the enterprise. How does one simulate a highly personal, interactive and collaborative process with an anonymous, passive and solitary methodology? The answer, of course, is that you can’t. These online programs can help lawyers learn about juror reaction to some aspects of trial, but they can’t replicate jury reaction very well at all. This fundamental distinction permeates much of what I lay out below.

Is it really such a bargain?
One of the biggest selling points for these online jury research programs is the profound cost savings. Many tell you that you can conduct your mock trial at one-tenth the cost of a traditional study. Let’s investigate the sources of the cost savings and what sacrifices accompany them.

The online jury research company charges you nothing (or very little) to load your presentation, pre-study questionnaire, exhibits and verdict forms to its website. These materials, however, do not materialize out of thin air. When a trial consultant quotes you a price for a focus group, it typically includes provisions for the consultant to assemble all these materials and help you put them in the proper form for presentation. Someone has to do this preparatory work regardless of whether the study is live or online, and it’s going to cost your client some money, paid either to you or to the consultant you hire to help you out. If you choose to prepare all the materials yourself, you lose all the expertise that a trial consultant can provide. The more you skimp on this preparation, the less reliable will be your results. As with most things, you only get out of it what you're willing to put into it.

Online companies typically charge less for participant recruitment and pay subjects less than those who recruit for live studies. The cost savings comes from two sources. First, it is probably easier to convince someone to spend a couple of hours on their laptop than to drive across town to participate in person. This is especially true for non-collaborative online studies, where each subject can log on at her leisure. Second, given the convenience, one doesn’t have to pay online participants as large an inducement.

The vast majority of what a focus group facility charges a consultant is dedicated to subject recruitment and compensation. Please be aware that not all subjects are created equal. Reputable recruiters use random dialing techniques or large proprietary subject databases to insure that the sample is representative of the venue requested. If you go on Craig’s List, MySpace, or dozens of ad posting sites, you can find hundreds of ads seeking online mock jurors. The online mock trial companies typically save time and money by recruiting in this way. Respondents to such ads hardly comprise a random sample of the community, and you run the risk of drawing a jury full of professional mock jurors. As the Econ folks say, “You get what you pay for.”

While you may be able to hire online participants more cheaply, you are definitely buying an inferior product. There is no way to monitor how attentively each respondent is reviewing your case. In some circumstances, it may be impossible to tell whether the subject reads your case, at all. You can’t examine the expression on each subject’s face as she learns about your case. You can’t hear the audible gasp when a particularly damning piece of testimony comes out. Finally, and most importantly, you cannot watch the jurors deliberate – because they don’t. For certain kinds of questions – most notably damages – a jury’s evaluation is much more than the sum of those of its jurors. Deliberation is an organic, collective experience. It is expensive to recruit for a real focus group precisely for the reasons that make it most valuable: It’s hard to get a sizable representative group of people in the same place at the same time so that you can watch them evaluate and deliberate about your case.

When your online jury study has been completed, you get a detailed report of exactly how each subject responded to each question asked. Most sites even draw fancy pie charts and allow you to view the data broken down by age, gender, verdict choice and the like. But what are you supposed to do with all this raw information? For a trial consultant, actually getting the study completed has only started the process. We really earn our money by interpreting the results. We help you figure out what the results really mean and how to implement what you’ve learned when choosing litigation strategies. I suspect that if you hire a full service trial consulting company to conduct an online focus group, using its proprietary technology, it will represent only a modest cost savings over a simple live study.

The Verdict…
So, what’s the bottom line? Well, online jury research can be an economical way to learn how more-or-less ordinary people react to particular aspects of your case. Remember, however, that the value of hiring professional trial consultants and recruiters lies in the expertise they bring to the table. All of this is lost if you choose to go it alone, either online or otherwise. These online services offer a potentially useful tool, but make sure to hire someone who really knows how to use it.

Shop before you buy. Ask explicitly about how the service recruits subjects, how they monitor attentiveness, how subjects are directed to review exhibits and what form of deliberation is available, if any. Run the tutorials on several sites to test for ease of use.

As the technology advances, however, we will be in a better position to simulate a real focus group online. Every MacIntosh already ships with a built-in camera and many PCs are similarly equipped. If teenagers can talk trash while playing World of Warcraft online, we can’t be far from being able to watch and talk to online respondents as they review a case and deliberate among themselves. The technology for such videoconferenced focus groups already exists, but requiring respondents to own compatible technology would further skew the distribution of eligible participants.