Online Focus Group Leads to Victory: Real Jurors Award Full Value

Carolyn KochMock Trials/Focus Groups/Trial Strategy

An online jury focus group was used in a medical negligence case where the plaintiff had been incarcerated at the time the claim arose. He had believed that he had broken his finger. Instead of being evaluated by an orthopedist who could properly set, and/or do surgery on his injured finger, the prison doctor ace-bandaged his hand to a flat piece of foam board, and delayed or denied medical treatment until the finger healed incorrectly and was permanently damaged. 

We tested out the case with a jury focus group that was done online. Online jury focus groups are ideal where busy lawyers are trying cases out of state and don’t have the time to give up a full day or more to get feedback on their case. The online jury focus group allowed mock jurors to see videotaped testimony of the injured plaintiff, as well as the treating doctor and the plaintiff’s expert witness. The plaintiff’s lawyer learned that most of the mock jurors thought his client was over-playing the sympathy card and making too many excuses for his failure to launch his career after his release from prison. These jurors didn’t much like the prison doctor or believe he rendered competent treatment, but the last thing they wanted to do was throw a lot of money towards a plaintiff who seemed so undeserving and not very injured. 

Even the mock jurors in our jury focus group who favored the plaintiff didn’t like how much he complained about his pain and suffering. Significantly, the online jury focus group results showed that the mock jurors didn’t care that the plaintiff was an inmate. This is what gave the case its strength: We, on plaintiff’s side, used the jury focus group to confirm that plaintiff’s incarceration was a strength, not a weakness: Mock jurors felt that he was at the mercy of the prison doctor, which made them angry about the medical failures.  This feeling was powerful enough to trump the other case weaknesses. The defense, however, was betting on the opposite, and took a no-settlement stance because it felt like a whiny inmate with a broken finger on his non-dominant hand was no match for a medical doctor. 

We used the online jury focus group results to effectuate a simple strategy: The plaintiff would only talk about his efforts to seek medical treatment, all of which failed. He would not complain about his pain or make any attempt to play the sympathy card.  Our jury selection strategy was also simple: We needed to avoid those jurors who prided themselves on their ability to suffer, persevere and overcome. 

This two-fold strategy paid off. The plaintiff was awarded every penny of what was requested for his lost future wages, and received punitive damages as well, for a total verdict of $1.3 million, which was reduced to $1 million due to state law caps. 

Using Online Jury Focus Group Results in a Mediation:

Online focus group jurors respond to a detailed case questionnaire that gives you data that you can use during a mediation to overcome your opponent’s objections and prove to the mediator that your strengths are more than just posturing. For example, in the above case, despite plaintiff’s injury being stereotypically minor and common (broken finger on non-dominant hand), the majority of jurors saw more than ordinary negligence.

The bar chart tallying their responses proves that this was a genuine opinion based on facts, not the plaintiff attorney’s beliefs about his case. Just as significant, plaintiff’s lawyer could show that this wasn’t a “pass-fail” response. Jurors had the choice to pick ordinary or gross negligence. The majority picked “gross,” thus enabling the argument that jurors weren’t sitting on the fence, able to go either way: They were sure that what this defendant did was wrong, and that sureness is what can expose a defendant to punitive damages. These type of arguments, bolstered by data, are what enable attorneys to settle a case at the highest value without risking a loss after trial.