Study offers trial lawyers insights on jurors' thinking

By Correy Stephenson The Daily Record Newswire Trial consulting firm Decision Analysis recently released the first report analyzing results from a nationwide survey of juror attitudes on specific litigation issues. The report - comprised of responses from 2,894 participants in cities including Los Angeles, Chicago, Atlanta and Philadelphia - offers insight to both sides of the bar, according to Decision Analysis president Richard Gabriel. "Lawyers are always looking to see where jurors start out before the trial even begins," he said. "If a juror starts out more on the defense side of the fence, then the plaintiff faces a higher burden to convince that person." Future reports are intended to provide details on the demographics and geographical locations of the respondents, as well as surveys on other litigation subjects, such as employment and medical malpractice, Gabriel said. The National Survey on Jury Attitudes: Product Liability asked respondents 33 questions focused on six specific industries: car manufacturers, chemical companies, oil companies, tobacco companies, pharmaceutical companies and fast food companies, to gauge jurors' instinctive reaction to the inherent safety or dangerousness of the products produced by these industries. The survey offers trial lawyers insights into jurors' thinking on several topics, such as: --Control = fault. The majority of respondents, 73 percent, said they believed that the user of a car is primarily responsible for an injury, while with oil and chemical products, almost 70 percent said they believed the product itself is the primary cause of the illness or injury. For lawyers, the survey results show that "when something is more commonly used, jurors tend to feel that it was under the control of the consumer, whereas products like oil or chemicals were viewed as more remote," Gabriel said. "We find that the more power and control over the product the consumer has, the more they blame the consumer." --Government regulations. The survey indicated an interesting trend, Gabriel said, with 46 percent of respondents stating that the government did not have enough rules and regulations regarding the safety of products. Forty-two percent thought the current level of regulation is sufficient, while only 12 percent thought too many rules and regulations were already in place. This result demonstrates that jurors have grown more tolerant of government regulation, Gabriel said, and "over the last few years we've seen a trend toward greater support of regulations." --Damages. While 95 percent of respondents indicated that they are comfortable awarding economic damages, jurors expressed a struggle to award non-economic damages like pain and suffering, emotional distress or punitives. "We have found that awarding [non-economic damages] is the hardest job for jurors to do," Gabriel said. For plaintiffs' lawyers seeking punitive damages, they must provide jurors with some sort of formula to work with, he said. --Standard of proof. Jurors also struggled with the standard of proof in civil cases, with just 28 percent correctly understanding the term. But 53 percent believed "preponderance" meant jurors need to believe a plaintiff's case beyond a reasonable doubt, and 19 percent thought it meant they had to be 100 percent convinced by the plaintiff's case. Gabriel said he was surprised at the extreme nature of the responses. "Plaintiffs' lawyers should be scared to death," given the survey results, he said, and should tackle the issue of what standard they have to meet during voir dire, he said. "I've seen good plaintiffs' lawyers saying things like, 'By law I have to prove my case by 51 percent. Do you think that's not enough?'" If a juror responds that he or she expects the plaintiff to prove their case by a higher standard, Gabriel said plaintiffs' lawyers could get the juror excused for cause. Published: Thu, Nov 4, 2010

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