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The art of persuasion
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A medical malpractice trial is a contest between parties attempting to persuade a jury to return a verdict for them. A new dimension to how juries are persuaded is addressed in Adam Benforado’s book Unfair: The New Science of Criminal Injustice, in which he explores the role of neuropsychology in jury decision-making. Benforado concludes that because of the way our brain processes visual images, words and information, juries are often persuaded in a manner that leads to the conviction of innocent people in criminal cases.
As an example, Benforado presents the following sentences: “When an elderly woman gets on the train, Carl immediately gives up his seat. When an elderly woman gets on the train, Alex remains in his seat, reading his book.”
Benforado asks, “Which man is likely to come to the aid of a passenger having a heart attack? Easy, right? It is obviously Carl.” However he notes, “But now look back at the sentences. They tell us almost nothing that would help us accurately forecast each man’s future actions. Carl might not have seen the woman at all; he might have given up his seat after suddenly realizing it was his stop, or to move away from a crying child. And Alex might have remained seated because there are many open seats on the train, or because someone else offered the woman a seat and she refused, or because his back was turned.” The neuropsychological lesson to be learned is the mind takes bits of information and tries to create a coherent story to make judgments about characters and events.
Unfairness from the law
B. Sonny Bal
Lawrence H. Brenner
The book also discusses how useless and even counterproductive it is for a judge, after sustaining an objection, to instruct the jury to disregard testimony. Benforado holds it is naïve to think a jury is neuropsychologically capable of mentally erasing information they have heard. Benforado also discussed jury selection known as “voir dire.” When a juror expresses a potential bias, the judge may ask, “Can you set aside those feelings and be a fair and open-minded juror?” Almost invariably the juror will answer “yes.” As Benforado states:
“In fact, our approach to juror screening provides a good illustration of precisely what we are doing wrong in our quest to eliminate unfairness from the law. It represents a serious challenge we face in realizing science-based reform. While we purport to address bias, what we actually do is reinforce a false narrative of what bias is, where it comes from, and how it can be remedied. And this puts us in a worse spot than if our system took no position on bias at all.
Take the matter of introspection. There is a wealth of research suggesting that many biases can’t be detected through soul-searching. And while it is one thing for us all to walk around believing that it is possible to self-reflect and identify all of our hidden proclivities, it is another thing to have the legal establishment confirm that intuition. Unfortunately, that is exactly what many of our rules and procedures do.”
Potential strategies
Unfortunately, Benforado recommends a series of reforms that do not offer much hope for substantive change. Nonetheless, a party to a malpractice lawsuit may benefit from the following:
Caroline Poma
- Motion in limine. This is filed before trial and asks that the court rule on and exclude testimony or evidence that is either inadmissible or highly prejudicial. In a malpractice case this might include asking the defendant, “Have you ever been sued for malpractice?” The answer to this question has nothing to do with the facts and circumstances of the case. Moreover, a physician having previously been sued is not a meaningful exploration of the evidence, but may prejudice a jury by inferring physician incompetence. These motions in limine can avoid the process of raising an objection in after the witness has testified and having the judge instruct the jury to disregard the testimony.
- Primacy. It is believed that the most important portion of the trial is the opening statement. The first few sentences in the opening statement have the most substantial impact on a jury’s verdict. This theory of primacy is consistent with Benforado’s observation that individuals who have a limited number of facts feel compelled to take those facts and form a coherent story. Therefore, a physician or surgeon should work carefully with his attorney in establishing primacy in the opening statement.
- Focus groups. Focus groups attempt to identify characteristics of potential jurors who are likely to either harbor some unrecognized bias that would prejudice their case or identify characteristics of individuals who may be prejudice against the opposing party. Theoretically, this would allow jury consultants to assist the attorney in selecting jurors who have characteristics most favorable to returning a verdict for their client. As Benforado points out, there is no hard evidence focus groups can effectively forecast which jurors to select during the voir dire process. However, it would seem to make sense that focus groups can add a useful dimension to the jury selection process.
- Shadow juries. These individuals sit through the trial as if they were jurors. Through the use of technology, they are able to record their impression of witnesses, evidence and parties. This information provides useful feedback to the attorneys in determining trial strategy in a “real-time” basis.
Benforado states, “Being aware of our natural limitations isn’t a cure-all, but it’s a necessary first step. Without self-doubt, you cannot convince anyone that they really do have it wrong or that change is urgently needed.”
What Benforado’s book suggests is that we need to better understand the science of jury decision-making and jury behavior. His book may be a useful start in our quest for fair and impartial verdicts.
- Reference:
- Benforado A. Unfair: The New Science of Criminal Injustice; Crown (June 16, 2015).
- For more information:
- B. Sonny Bal, MD, JD, MBA; and Lawrence H. Brenner, JD, are partners in the law firm of BalBrenner/Orthopedic Law Center and are the exclusive providers of loss prevention, risk management and quality improvement services for the Orthopedic Physician’s Insurance Company. Brenner can be reached at lbrenner@balbrenner.com.
- Caroline Poma is a second-year law student at the University of North Carolina School of Law, and summer law clerk for the BalBrenner Law Firm.
Disclosures: Bal, Brenner and Poma report no relevant financial disclosures.