Are You Looking Carefully Enough at Your Verdict Form?

By Melissa M. Gomez
Special to the Legal

In jury trials, semantics can be critical, especially on the verdict form. A question that can be interpreted in multiple ways, as many can, can very easily be misinterpreted to the detriment of your case.

Take, for example, a medical malpractice case involving facial plastic surgery. The plaintiff, a man in his 60s, had received a facelift from his plastic surgeon. While aesthetically, the results of the surgery were quite good, the plaintiff complained of facial pain, and there was no physiological reason for that pain that could be found. The plaintiff claimed that there was negligence in the manner in which the surgeon conducted the surgery, and also made a claim of failure to provide informed consent. He claimed that, if he had known that permanent pain was a risk of the surgery, he would not have had the procedure done.

In the end, the jury found that the doctor was not negligent regarding the manner in which he conducted the surgery. They did, though, find for the plaintiff on the issue of informed consent, which, for an elective procedure like plastic surgery, they felt as though a higher standard of informed consent should apply.

The tricky part of the verdict form for the defense came with the causation question. The question, as read on the verdict form, asked whether a “reasonable person” would have refused the surgery had more information been given. Interestingly, as we learned in post-trial interviews, jurors felt that the plaintiff would have had the surgery anyway, because, they felt, he was an unreasonable person in his quest for the fountain of youth. But that wasn’t the question. The question was about a “reasonable” person.

Therefore, this jury, comprised of one male and the rest female, put the standard of being “reasonable” on the male juror. That is, they decided that their male counterpart was a reasonable person and they asked if he would have had the surgery. His answer was no. He, a male in his 20s, personally would not. He simply found getting a facelift unreasonable, in general. Regardless, in the manner in which these jurors interpreted the question, the answer stuck and the verdict was for the plaintiff. When it came to damages, though, they only reimbursed plaintiff for the cost of the surgery.

I have seen several examples of cases in which verdicts are won or lost on the way the question on a verdict form is worded. Because they are in unfamiliar legal territory, jurors tend to look at the semantics of questions and interpret them quite literally. Therefore, it is critical to look closely at the wording on the verdict form. Where you can argue for needed change, argue for it. If you can’t, make sure you take the jurors through the verdict form in closings. Provide the road map to the issues to consider when answering each question. Without that road map, folks are more apt to get lost.

Melissa M. Gomez is a jury consultant and owner of MMG Jury Consulting. She holds a Ph.D. in psychology from the University of Pennsylvania. Her experience includes work on hundreds of jury trials in Philadelphia and across the country, with a focus on the psychology of juror learning, behavior and decision-making. She has more than 15 years of expertise in research design and methodology, as well as in behavioral and communication skills training.

This posting is for general informational purposes only and should not be construed or interpreted as advice specific to any matter. Each case is different and no strategy applies uniformly to all. If you have any questions regarding jury psychology that you would like to see addressed in this blog, please contact Dr. Gomez at melissa@mmgjury.com or call 215-292-7956.

 

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