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Knowing
Your
Jury

Attorneys must remember that juror perceptions
of trial issues often are quite different from their own

by Noelle Nelson

Juries do not view cases the same way as attorneys. As obvious and self-evident as this statement may seem, many attorneys seldom seriously consider how jurors will relate to the evidence and testimony presented. Post-trial jury debriefings repeatedly demonstrate that juror perceptions of trial issues are significantly different from those of attorneys. If attorneys can anticipate juror questions and concerns and address them during trial, they will have a much better chance of success.

Defending a doctor in a medical malpractice case involving an injured child brings up a number of juror questions that can be anticipated before the start of trial and resolved when presenting your case.

Example: A 9-year-old girl suffered serious injuries when she was given an improper tracheotomy with the wrong equipment. Due to a lack of oxygen, brain damage occurred. The tracheotomy was performed in an emergency operating room on a Saturday night at the local hospital. Your client is the child's physician who had been treating the child for some undiagnosed breathing difficulties. He was called by the parents when the child suffered severe breathing problems and he performed the operation. The emergency operating room had only adult-sized tracheotomy equipment, which your client used. Child-sized equipment was available in the hospital supply storeroom.

In this case, jurors most likely will ask:

Let's review the possible answers to these questions.

What is the standard medical procedure?

Interestingly enough, research shows jurors believe it is more important that a doctor follow standard medical procedure than if that procedure is successful. In other words, if your client followed procedure, you can breathe a sigh of relief. If he or she did not, all is not lost, but you must structure your defense differently.

The doctor followed standard procedure: First, do not assume jurors know what standard procedure means. Jurors have limited knowledge of medical procedure, much of which they cull from whatever prime time hospital show is currently popular on television. Educate your jury about standard practice and the meticulous way your client followed each aspect of standard practice. Charts and diagrams permit jurors to easily see how standard medical procedure works and how your client followed that procedure.

The doctor did not follow standard procedure: Justify, justify, justify. Begin by detailing standard procedure, using charts as suggested above. Go back to each point on the chart where your client deviated and explain why your client did not follow procedure. Demonstrate how standard procedure is just that, standard, and does not take into account different individual parameters. It is important to demonstrate that every deviation made was in the best interest of this patient. Be prepared to use expert witnesses and/or medical texts and references to back up your client's non-standard choices.

Was medical testing adequate?

Jurors routinely find against doctors who fail to order tests or fail to read test results. Jurors are particularly disapproving of doctors who order tests but fail to request their results.

The doctor ordered adequate tests: If testing was in line with the general standards of care, jurors will more easily forgive the doctor for an incorrect diagnosis or choice of procedure. As with the recommendations for standard procedure, emphasize the ways in which your client requested and evaluated the appropriate tests.

The doctor did not order adequate tests or failed to read/evaluate the results: Again, justify. Use charts to demonstrate why the doctor did not order tests (time factor, unavailability of testing equipment, doctor's assessment of the needs of the patient), or did not evaluate them (test results were too slow in coming, action needed to be taken immediately, another diagnostic tool superseded test results). The important message to the jurors is that your client knew of the tests and would have used them if the doctor had believed they were in the best interest of the patient at the time.

Was the time factor appropriate?

Jurors often have difficulty understanding the critical nature of time in medical procedures. Use visuals such as time lines to vividly illustrate what time factors were being considered and how your client was factoring them into his or her decisions. The more jurors learn about the doctor's decision-making process, the more easily they can see the situation from the doctor's point of view and be willing to accept his or her interpretation of the facts.

In our example, one element that went into the physician's decision to use the adult-sized tracheotomy equipment was that he felt the time it would take to obtain child-sized equipment from the hospital supply storeroom would put the child at greater risk than did his use of the adult-sized equipment. Walking jurors through that decision-making process by showing them how the damage to the child would have been worse from the increased time without oxygen would help them assess the appropriateness of your client's decision. As bad as the damage to the child was, show that it would have been worse had the doctor chosen to wait.

Why wasn't the tracheotomy performed correctly?

Everything is relative. First, educate the jurors about what a correct tracheotomy would have been, then explain how the conditions specific to this patient and her situation made it impossible to perform a textbook tracheotomy. While explaining with diagrams, pictures and timetables, keep guiding the jurors through your client's decision-making process.

Why wasn't child-sized equipment readily available in the operating room?

Good question. Was the physician at fault for not calling ahead and ensuring that the right equipment would be available? Did he try to call but couldn't get through to the appropriate hospital personnel? Is it standard practice for a hospital emergency room to have child-sized equipment and therefore not a reasonable question for the physician to ask?

Whenever unavailable or faulty equipment is a factor, you must clearly guide jurors to the responsible party. Jurors are often confused about who is responsible for what, and are easily persuaded by whichever attorney best clarifies the issue for them.

When the child-sized equipment became available, why wasn't it used by the doctor?

The time factor is the critical variable in our case example. One argument is that once the appropriate equipment became available, the doctor had already initiated an alternative procedure. Using the new equipment would have done more harm than good.

Were doctor's orders appropriately carried out by staff?

Chains of command among hospital personnel, job function and appropriate communication between doctor and staff are all subjects of great concern to jurors. Jurors want to know who is responsible for what so they can decide who made which mistake and when. Since teamwork is often involved in a medical procedure, it is important to describe for the jurors (using visual aids) how the team should function (standard practice) and how the team functioned here. Illustrate channels of communication, if, how and when those broke down; explain chain of command and how it did/did not work as it should have; detail the different job functions and whether these were fulfilled.

What was the parents' involvement in the child's condition and/or treatment?

Jurors are very interested in the level of parent involvement in their child's treatment. Jurors want to know: Were the parents under-involved? Did they fail to notice the child's complaints early on? Did they dismiss early warning signs of distress as, "Oh, that's just her whining again?" Did they obey doctor's orders, supervise the child's taking of medication and exercise reasonable and due caution in monitoring their child's activities given her physical condition? Were they over-involved? Did they interfere with the doctor's orders or modify or add to his or her treatment with their own ideas? Did their involvement make it difficult for your client to do his or her job?

You don't need to make the parents bad or wrong (that might alienate jurors), but you may need to delve into the problems that improper involvement caused by showing how their efforts, well-intentioned as they have been, were in fact a deterrent to the proper care and treatment of their child.

Plaintiffs counsel in an injury case will generally present emotional testimony to the jury, especially when a child is involved. To counter this potentially damaging emotionalism, point out how all patients are alike in the doctor's eyes, that an elderly woman's health and well-being is as valuable as that of a child. Expound on the ideas of fairness and professional impartiality, equal devotion and concern for all. Stress that the doctor's primary consideration is always what is best for his or her patient. You can certainly concede that given an ideal situation, XYZ may have been better procedure, but this was not an ideal situation and had to be dealt with as such.

Visual aids are critical in answering jury questions. Their usefulness cannot be overstated. They can simplify a confusing case and make terms and procedures easy to understand.

Trial attorneys must not only anticipate and address issues raised by opposing counsel, but equally important is to anticipate and address juror questions. The side that answers jury questions more satisfactorily during the course of the trial will most likely come out victorious.

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