Yearly Archives: 2015

Using mind maps to guide early litigation

If you have ever worked with us, then you know we have two mantras: 1) Look at juror attitudes and experiences, not demographics, and 2) Start jury research sooner rather than later. So it should come as no surprise that we believe strongly in learning about jurors’ relevant attitudes and experiences as early as possible in any litigation. Although many traditional forms of jury research, such as in-depth focus groups and mock trials, aren’t as helpful or cost effective in the early stages of discovery, there are ways to gain valuable insight during those early stages. One method is to conduct online research into the litigation topic and related issues and construct mind maps, visual representations of concepts reflected in layperson comments.

To illustrate the benefits of this method, we used it to learn about lay attitudes towards a new prescription drug that, to our knowledge, has not yet been involved in litigation: flibanserin. Flibanserin is the so-called “female Viagra,” a libido-enhancement drug for women approved by the FDA just this year. We analyzed 475 on-line comments to stories about this specific drug and its approval process, and constructed mind maps. Our mind maps identified these concepts, among others: how flibanserin compares to other drugs/interventions, whether a decreased libido is a “real disease” requiring medical treatment, and concerns about female sexuality and autonomy. Here’s how these findings could be used in trial preparation:

Most laypersons will not be familiar with the drug, and as a result, will understand this drug in the light of drugs and interventions they do know. So flibenserin was compared to Viagra, HRT, cosmetic surgery, implants, and anti-depressants. This has implications for discovery (what comparisons, if any, do witnesses and documents offer?), theme development (X comparison is helpful, include it; & X comparison is misleading, address it), jury research (explore such comparisons further), and jury selection (identifying juror experience with “comparison” drugs and interventions).

Most jurors will have their own experiences with libido and will likely have strong opinions about whether lower libido is a genuine problem, what the cause is, and how/if it should be treated. Gaining a full understanding of different perspectives on lower libido and whether it should even be treated would help ensure that your trial themes resonate with the greatest number of jurors.

Commenters also expressed concerns related to female sexuality and agency: Could this drug make women lose control over their sexual urges, with negative practical and moral consequences? Who should be making these decisions about a woman’s body? Who even has standing to comment on this issue? These remarks demonstrate an underlying fear for women’s safety and autonomy – fears that are likely to be deeply rooted and capable of producing strong visceral reactions. The trial team should be acutely aware of and sensitive to such fears.

As the above example demonstrates, mind mapping can provide valuable and early insight into how jurors could view the products and major players in a litigation. It can alert you to any underlying hot button issues you should be sensitive to and/or prepared to address or debunk. Knowing this information early ensures that you are attuned to salient juror beliefs and attitudes when examining documents and that your witnesses and experts are prepared to explain or address juror concerns. It is also beneficial in guiding case strategy and theme development as well as providing direction for more case-specific research.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

Doctor vs. Patient in Failure to Warn Cases: Who should jurors believe?

In litigation involving personal injury and prescription drugs, the plaintiff often claims that a doctor or other healthcare professional failed to warn him or her about the risks associated with the drug. Very often, the doctor in question claims that he/she did, in fact, warn the patient. Absent written documentation, it becomes the doctor’s word versus the patient’s. In such cases, juries may assume that the patient’s recall would be better given that the doctor rarely has an independent recollection of the visit and has had many conversations with many different patients.

But the patient is probably wrong. Decades of studies of patient-doctor interactions support this notion. The trend of those studies is the conclusion that most patients remember very few details of their doctor visits. One study even used tape recorders to document what the doctor said, and then questioned patients later, when nearly all of the patients “positively but wrongly denied that certain major items had been discussed.” So while patients were certain they remembered what had been discussed, empirical evidence proved them wrong.

The results of these studies made us wonder whether this research could help the defense in failure to warn cases. Would jurors be receptive to this information and adjust their opinions accordingly? Could jurors be easily educated about this phenomenon in a way that made them less likely to give the patient the benefit of the doubt in such scenarios?

We decided to test these questions using an online survey. The brief questionnaire we constructed focused on respondents’ attitudes toward drug safety and their experiences with doctors and prescription drugs. We then provided a brief explanation of the aforementioned study and its results. Finally, we gathered respondents’ reactions to the study and questioned who they would believe in a case where the doctor claims to have warned a patient about a particular risk or side effect of a medication and the patient claims he/she received no such warning.

Our findings demonstrated that a majority of respondents accepted the study’s findings as accurate. Additionally, after receiving information about that study, the vast majority sided with the doctor in a dispute about whether the doctor warned of a particular risk or side effect. Our findings also provided valuable information about the characteristics of jurors who resist such arguments.

We chose to examine a very limited issue, but these results highlight the ability to educate jurors about a fact that 1) arises extremely often in failure to warn cases and 2) is most often presented to jurors as simply a “credibility contest.” Although persuading jurors can be difficult, findings such as these demonstrate that in some cases, it may be easier than we might think.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

 

Yes, you really should respond to that inane argument.

In any disagreement, it’s incredibly tempting to only respond to the arguments that you think are persuasive and simply dismiss those that you find absurd. Unfortunately, as can be easily seen in any political debate, that often leaves both sides talking past each other – and never actually addressing the other side’s concerns. Unless and until you actually address the opposing arguments directly – even those you think are ridiculous – you are simply “preaching to the choir.” And while it is important to provide ammunition to those who are on your side, ideally, you would like to persuade those who are on the fence or against you.

To highlight this issue, think about a political issue you feel strongly about. Now consider the opposing arguments on that issue. Do they actually address your concerns? Or do you feel they are missing the point entirely? Are you persuaded by arguments that don’t address your concerns?

This same dynamic surrounds practically every sensitive issue that people have a vested interest in. Consider vaccines, for example. Vaccine resisters believe that there are real and widespread risks of vaccines that outweigh the risks of childhood diseases. They fear that vaccines will cause permanent injuries and changes to their child. Vaccine advocates emphasize the seriousness of those childhood diseases and our social responsibility in protecting vulnerable populations who cannot be vaccinated. The advocates’ approach is typically to scoff at anti-vaxxers or to focus on educating them. However, their arguments are rarely persuasive to those who oppose vaccines, because they dismiss the fundamental force driving their position – fear of causing harm to their child – instead of addressing it.

In fact, studies designed to examine what arguments actually influence anti-vaxxers’ thoughts about vaccines have found that parents’ vivid and detailed descriptions of their child actually getting those diseases (measles, whooping cough, etc.) are most effective. This is likely because those personal accounts speak to the fear in vaccine resisters – and elevate their level of fear concerning childhood diseases to a point that balances out the scales a bit more.

Every time you go to trial, you are introducing new topics to jurors and asking them to become invested in the issues – which they do. But to create the greatest chance that they will become invested in your position, you can’t simply hope they think like you and will be persuaded by the same arguments you are persuaded by. You should consider that some jurors may have a different perspective – one that you would like to change. So next time you don’t want to bother addressing an opposing argument because “no one will ever believe that,” remind yourself that someone will. And he/she may be on your jury.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

Using an analogy at trial is like…oh, just don’t do it.

When teachers want to explain a new concept to students, they often offer analogies: teaching fractions in terms of pieces of a pie or likening the brain to a computer for the body. Scientists rely on analogy to help themselves think: for example, Robert Boyle, the founder of modern chemistry, used analogy to conceptualize and explain “local motion,” the movement of invisible particles. Analogy, and its relatives the metaphor and the simile, is a powerful tool for explaining new and complex concepts and facts to a lay audience. It’s not surprising that lawyers turn to analogy in the courtroom to explain causation or complicated facts.

But using an analogy in the courtroom is like having a gun in your house: it can protect you, but a burglar could take it by stealth or force and use it against you. And that analogy highlights the problem with analogies. Analogies are never 100% fitted to the new situation, and that difference between analogy and situation, especially if the analogy makes use of a politically or emotionally charged example, can distract jurors and derail the discussion. The gun analogy likely caused most readers to react to that statement and thus, distracted them from our main point: be very cautious when using analogies.

You can see the distracting power of analogies in almost any conversation or discussion, including the example below. In our research on lay attitudes towards vaccinations, we analyzed reader responses to a blog post by Maria Konnikova, a writer for the New Yorker. Konnikova was writing about a study that explored the effectiveness of particular ways of communicating information about childhood vaccines to parents; the benefit of childhood vaccination was not up for discussion. In the course of her post, Konnikova made two analogies: one to the use and regulation of raw milk and another to Galileo as a pioneer in science. There were over 340 comments and of those, only a handful directly addressed the topic of the post, communicating with parents. Of the remaining comments,

1) 124 argued the pros and cons of childhood vaccines

2) 83 argued the pros and cons of raw milk

3) 46 commented on Galileo.

It’s tempting to want to explain complexity with an analogy, but “likeness is a most slippery tribe,” says the Stranger in Plato’s Sophist, and we agree. Whatever analogy you’re contemplating, we bet it can be turned inside out, and you can be sure the opposing attorneys will try their hardest to do so. And if they can’t, they can always fall back on dismissing it: “Opposing counsel likened this X to a Y, which is totally wrong and demeans X.” It’s a rare analogy that can hold up under that scrutiny.

And it’s a rare juror who is persuaded by an attorney-generated analogy (they can be persuaded by their own analogies, but that’s another post). So instead of spending all of your time trying to come up with the perfect analogy, spend that time focused on what you want the jurors to focus on: your case.

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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.

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