What the average juror believes in an Arizona medical malpractice case

What the average juror believes in an Arizona medical malpractice cases and what the plaintiff’s attorney must do to address these beliefs and win the case

Two years ago, I had the interesting and enlightening experience of being summoned for jury duty in Maricopa County Superior Court and being involved as a potential juror in a medical malpractice case.  This allowed me to view jury selection and juror attitudes in our Court system from a totally different perspective from my usual plaintiff’s attorney outlook.  It impressed upon me the uphill battle any claimant and claimant’s attorney has in trying to win a medical malpractice case and get a favorable verdict in the Arizona court system and in society as it exists today.

Here are the impressions I had:

Many people summoned for jury duty are not pleased to be required to attend.  In general, they are caught up in life’s hectic pace, working and trying to attend to their personal needs or obligations, and the idea of taking two to three weeks out of their lives (the average time a malpractice case takes to try) to do their ‘civic duty’ is not a popular concept.   The general reaction I observed from other potential jurors was, I would really rather not be here, but if I am made to stay, this case better present to me some pretty compelling facts or issues.  Otherwise, I will quickly conclude that these people are wasting my time and I will, in turn, punish whichever side brought me here unnecessarily through my verdict result.  This is not a friendly, neutral mindset I observed displayed by potential jurors at the very outset of the case.  I had viewed this before as a plaintiff’s attorney involved in jury selection, but sitting as a potential panel member, the jurors’ initial attitudes were all the more striking.

As the jury questioning (voir dire) progressed I had several further reactions.

  1. The jurors were for the most part aware of what is claimed to be the medical malpractice crisis. They did not know the full facts or whether there was truth behind the claimed crisis, but the ideas were in their minds and they did not seem to have any reason to disbelieve them.  The crisis as they knew it was that doctors and hospitals are the victims of too many frivolous lawsuits, that many of these suits have forced doctors out of medicine so we have lost too many good professionals, medical malpractice claims have driven insurance costs up and result in unnecessary defensive medicine where doctors order tests or treatment to protect against malpractice claims when otherwise they would not.
  2. Other potential jurors seemed to be skeptical concerning how often medical malpractice occurs and even if it does, whether the doctors should be held accountable for it.  Some stated for the most part doctors do good work and save lives so pursuing them for malpractice unless it is an egregious error is not a good idea.  There also seemed to be distrust whether they wanted to take the time and make the effort to go into the excruciating detail necessary about someone’s health history to decide whether malpractice really occurred.  To some, it seemed too personal, complicated and unpleasant.  More than anything, there seemed to be initial distrust of the plaintiff’s attorney, who they presumed was trying to make big bucks off this case and the system overall regardless of the truth.  Defense attorneys didn’t seem to fare that much better in the credibility department since many jurors believed they were tied into the system and also were earning big dollars, although not as much as plaintiff’s attorney.

The impression I had from all of these observations was: This is not a friendly group to which a plaintiff’s attorney must present and hope to win a medical malpractice case.  That is undoubtedly why the statistics regarding successful jury verdicts in medical malpractice cases in Arizona are definitely stacked against claimants.  It certainly can be done, but properly addressing these initial attitudes is a big part of the challenge.

The good news, however, is that many of the most legitimate malpractice cases are resolved through money settlements before they get to a jury trial, so the ones that cannot be settled either because of proof of liability problems or measure of damages disputes are the ones most often presented to jurors with the initial attitudes and outlooks referred to above.  That means that the plaintiff’s attorneys who end up presenting their cases to a jury must have particularly good ideas and methods to address and deal with the attitudes and outlooks referred to above.  Many of the best medical malpractice attorneys regularly use ‘focus groups’ to determine how best to approach their jury and how best to level the playing field so their client or clients get fair treatment, good results and ultimately achieve justice.  They use these focus groups to best understand what ultimately will motivate a jury to deal with and sometimes overcome their initial prejudices, attitudes, and outlooks and deliver a good verdict.

A recent article written by Jeffrey R. Post, a trial attorney from Seattle, WA entitled “What’s on Juror’s Minds”, sets forth some interesting findings explaining a number of the points made above.

He states, “In this world, a jurors’ self-interest is a huge factor and a prime driver of verdicts.  The question in a medical negligence jurors’ mind is straightforward:  Will it be better for me if the plaintiff wins, or will it be better for me if the defendant wins

He further states, “Generally jurors feel better about finding for the plaintiff when they think the verdict will

  1. Help someone in need
  2. Help the plaintiff or the plaintiff’s’ attorney, who they have come to like during the trial
  3. Send a message that things need a change
  4. Make the world safer for themselves or others
  5. Right a wrong
  6. Apply the law to the facts as they see them

Jurors feel better about finding for the defendant when they believe the verdict will

  1. Protect the medical profession from frivolous lawsuits
  2. Support the individual doctor, who they have come to like during the trial
  3. Support the jurors’ “brand’-for example, the local doctor, the hospital associated with a university they attended or the medical group that sponsors prominent local charities
  4. Keep a lid on their own medical costs or tax rates
  5. Punish a lawyer or a plaintiff they didn’t like
  6. Affirm that we live in a world where “stuff happens” or things happen for a reason apply the law to the facts as they see them”

Mr. Post’s thoughts are helpful in understanding Arizona jurors’ outlooks and attitudes.

Our attorneys take pride in reviewing and properly evaluating juror attitudes as they relate to the successful prosecution of medical malpractice cases.  Please call us to discuss your case and we will be happy to help you.  Our contact number is 602 265-2600 or you may email us at billblack@billblacklaw.com

The key to good trial advocacy therefore for a plaintiff’s medical malpractice attorney and his or her client is to be able to recognize and evaluate these attitudes and pre-conceived juror outlooks and determine the best way to turn them in his or her favor.  For those that are intractable, the goal is to properly navigate with the arguments in the case through his or her way.

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