SIMPLIFYING MEDICAL MALPRACTICE LITIGATION FOR THE JURY’S UNDERSTANDING  

Medical malpractice attorneys are expected to become highly knowledgeable in various disciplines. Each case requires countless hours of studying medical records, analyzing specialist reports, interpreting diagnostic imaging, and evaluating laboratory findings. Throughout their careers, these attorneys read peer-reviewed medical research and stay up to date on clinical guidelines. After each prolonged period of absorbing material for a given case, the challenge truly begins as it’s time to explain incredibly complex medical-legal issues to a diverse panel of jurors and persuade them on those issues. It’s crucial that these attorneys wholly comprehend the nuances of medical evidence so they can break it down easily for the jury’s understanding. Limited to the four corners of the courtroom, simplifying medical evidence can often be an obstacle. As Alexis De Tocqueville remarked with significant concern in 1835 in Democracy in America:  

The jury system arose in the infancy of society, at a time when only simple questions of fact were submitted to the courts; and it is no easy task to adapt it to the needs of a highly civilized nation, where the relations between men have multiplied exceedingly and have been thoughtfully elaborated in a learned manner. [1] 

Nearly 200 years later, legal issues have only become more intricate with the growing complexities of modern society, requiring jurors to possess a greater level of knowledge and comprehension to evaluate medical evidence fully. Thus, when litigating medical malpractice issues, there are a few imperative points to keep in mind to simplify the evidence for your jury and receive a verdict in your favor. 

 

Tell a Story 

As simple as it sounds, creating a compelling story will keep jurors attentive, interested, and informed. [2] Since the jurors’ “lack of technical training makes them sensitive to emotional appeal,” a compelling story will allow the complexities to feel “jury-friendly.” [3]   

Stories are central to the human experience; we all begin to learn through storytelling from a young age. The jury wants to know who the parties are and what happened. Therefore, provide a story, not a laundry list of facts. The use of plain English and demonstratives, as explained below, will aid in the storytelling. 

 

Expert Witnesses 

Expert witnesses are key narrators in developing the client’s story for the courtroom; they can make or break a medical malpractice case. One study that reviewed juror’s perceptions of expert witnesses found that credibility has four main categories: likability, believability, trustworthiness, and intelligence. [4] Likability was the most significant factor influencing the juror’s perception of the expert’s trustworthiness. [Id.]   

Moreover, research indicates two distinct modes in which jurors process information presented to them. The first is central processing, used when jurors focus on relevant cues like expertise and trustworthiness. [5] This occurs when the jury is fully engaged with the material. [Id.] The second mode is peripheral processing. [Id.] Peripheral processing occurs when jurors are disengaged due to a lack of understanding or boredom. [Id.] When this happens, jurors must create mental shortcuts to simplify and understand the evidence by relying on non-relevant cues like the speaker’s appearance or likability. [Id.] Understanding these processing modes can help attorneys cater their presentation to the jury’s engagement level, thereby increasing the jury’s understanding of the case. 

Thus, ensuring the expert witness’s testimony remains simple and easy to follow is vital to keep jurors engaged throughout the trial. One way to achieve this is by limiting technical language and having the expert offer firm opinions. [6] Although specialized jargon may be more appropriate in some experts’ fields than plain English, highly specialized language will create barriers to the jury’s understanding and diminish the persuasiveness of such testimony. The attorney should work closely with the experts to ensure they can explain concepts in a straightforward and uncomplicated way. This will allow the jury to perceive the expert as more likable and, in turn, increases overall engagement and jury understanding.  

The attorney’s tone can also significantly impact the case. While attorneys often resort to legalese when communicating with other legal professionals, the attorney who uses straightforward, everyday language in the courtroom will build a connection with the jury and increase the juror’s comprehension of the case. 

 

Demonstrative Aids 

Another crucial component to simplifying a medical malpractice case is the use of demonstrative aids, which can help transform the facts of a case into an easy-to-follow, persuasive argument. These are especially beneficial when combined with the expert’s testimony because visuals simultaneously enhance jurors’ comprehension of learned information while improving their ability to apply it, such as using the medical evidence and testimony learned while deliberating. [7] 

Notably, there may be increased benefits with increased visuals. Dr. Broda-Bahm, who conducted a Visual Persuasion Study, found continuous imagery to boost juror comprehension and persuasion. [8] In that study, Dr. Broda-Bahm and his team presented a case wherein a 16-year-old boy experienced brain injury after the baseball he pitched flew back toward him at a high rate of speed once it made contact with the aluminum alloy bat used. [Id.] While plaintiffs claimed the bat was unreasonably dangerous due to its design, causing it to hit baseballs at greater speeds than other bats, the defense argued the injury would have occurred by the ball hitting any bat. [Id.] The study first presented the same version of the plaintiffs’ presentation to all participants but randomly assigned one of five defense presentations, which included: (1) no graphics; (2) flip chart graphics, created live; (3) static graphics, designed but not animated; (4) animated graphics; or (5) immersion, which involved a mix of static and animated graphics used continuously to show imagery throughout the presentation. [Id.] The fifth approach served to “simply underscore[] what the attorney was saying.” [Id.] Significantly, “in nearly all cases, the version based on the continuous use of graphics performed better than versions including no graphics or occasional graphics.” [Id.] 

Dr. Broda-Bahm offered two theories for this outcome. [Id.] One theory was that continuous graphics require less mode-shifting. [Id.] Less mode-shifting means jurors don’t have to constantly change how they pay attention by going from listening to looking to listening, which is when we begin to lose information. [Id.] His other theory involved the well-known “cognitive theory of multimedia learning,” which centers around the idea that learning is enhanced when we learn from words and pictures rather than words alone. [Id.; 9] Simply put, our brains process information through two channels: a visual and an auditory channel. [Id.] These channels take the images shown or words spoken, respectively, and work to integrate the material with the opposing channel by using prior knowledge and experiences. [Id.] New information is fully understood and moved into long-term memory when that integration occurs. [Id.] Thus, demonstrative aids will keep jurors engaged while improving their comprehension and retention of evidence. 

For instance, think of the show How It’s Made, which uses visuals and spoken words to tell the story of how a specific item came to be, the same way an attorney tells the story of how their client came to be involved in the current trial. Try Dr. Broda-Bahm’s experiment by listening to an episode without any visuals, listening and watching only some visuals, and watching along with all visuals. Looking at an image throughout the story is more enjoyable, and it becomes much easier to grasp the unknown process.  

Therefore, don’t tell the jury the facts; show them. Get creative with demonstrative aids to break concepts down in their simplest form. Prepare a series of relevant questions to maximize the visual impact and persuasiveness of the demonstrative. Reinforce key aspects of the visual through those questions to enhance the jurors’ learning and strengthen your argument. 

After spending months researching medical-legal issues and consulting with experts, attorneys may forget that the jury is hearing this information for the very first time. Since the jury is the ultimate audience, it is crucial to present the medical details in a clear and accessible way. When the jury understands your argument, you’re halfway to securing a favorable verdict. 

 

Sources: 

 

[1] See Renée Lettow Lerner, The Jury: A Very Short Introduction 21 (1st ed. 2023). 

 

[2] A. McCarthy Wilcox & N. NicDaeid, Jurors’ perceptions of forensic science expert witnesses: Experience, qualifications, testimony style and credibility, 291 Forensic Sci. Int. 100-108 (2018). doi: https://doi.org/10.1016/j.forsciint.2018.07.030. 

 

[2] Robert Gerchen, How to Help a Jury Understand Complex Litigation, The National Law Forum (Aug. 25, 2022), https://nationallawforum.com/2022/08/25/how-to-help-a-jury-understand-complex-litigation/ 

 

[3] Lerner, supra note 1 at 47 

 

[4] Wilcox & NicDaied, supra note 2 

 

[5] Heidi Eldridge, Juror comprehension of forensic expert testimony: A literature review and gap analysis, 1 Forensic. Sci. Int. 24-34 (2019). doi: https://doi.org/10.1016/j.fsisyn.2019.03.001. 

 

[6] Wilcox & NicDaied, supra note 2 

 

[7] Cornell University Student Projects, Apple v. Samsung, Cornell University (last visited Dec. 6, 2024), https://courses2.cit.cornell.edu/sociallaw/student_projects/Tradedresspage3.html. 

 

[8] Dr. Ken Broda Bahm, Show, Don’t Just Tell: Part I, Continuity (Persuasion Strategies Visual Persuasion Study), Your Trial Message (July 14, 2011), https://yourtrialmessage.com/show-dont-just-tell-continuity/  

 

[9] McGraw Hill Canada, Richard Mayer’s Cognitive Theory of Multimedia Learning, MCGRAW HILL EDU. CAN. BLOG (April 16, 2019), https://www.mheducation.ca/blog/richard-mayers-cognitive-theory-of-multimedia-learning