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Professional services such as accounting, law and medicine
are often self-regulated and are heavily dependent on oversight from within
the professions themselves. Many jurors are aware of this and expect that
most cases of malpractice will be handled quietly within the professional
organizations. When malpractice cases make it to trial, many jurors are
predisposed to believe that there must be something to the claims for the
complaint to have made it to court.
Accounting Malpractice Litigation
Starting with the collapse of
the savings & loan industry in the 1980’s and continuing with more
recent economic problems with dot-coms and the Enron collapse, jurors now
accept more readily the possibility that auditors and accountants played a
significant role in the collapse of a large corporation. Jurors often expect
accountants to protect the public interest and go beyond the requirements
and standards of the accounting profession. One of the challenges for litigation
is teaching jurors the role that the CPA plays and the G.A.A.S. that they
use in their practice. Jury research can be used to help craft the education
of the jury. This teaching is often more difficult than that required in legal
or medical malpractice cases. Your story must humanize the auditors and accountants.
The demeanor of the involved accountants is obviously key. Jurors require
an explanation as to why a problem occurred in a company and if there was
fraud, why the accounting firm did not discover it and warn investors or the
public. If a good explanation cannot be offered, jurors will tend to blame
the auditors.
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Legal Malpractice Litigation
A Wholly Different Situation
In a legal malpractice case, jurors are in the interesting position of reacting
to lawyers who are trying a case about attorney conduct. While jurors always
attend to the attorneys in a trial and carefully scrutinize their behavior,
in a legal malpractice case the ante is raised. Jurors are being taught about
standards for the legal profession and asked to judge attorney conduct. Jurors
cannot help but look at lawyering of the case at hand with a critical eye.
Legal malpractice cases are also
more complex because they involve retrying the original case, usually in a
shorthand fashion. Jurors need to understand both the issues of the underlying
trial and those of the legal malpractice claims in the case before them. How
should the attorneys sort out the two cases and craft an effective presentation
of the case issues? The best method of doing this is rarely obvious. The behaviors
that seem obviously and egregiously malpractice to an attorney usually are
not the same behaviors that signal malpractice and incompetence to a lay group
of jurors using more common sense standards of judgment.
We have had extensive involvement
in legal malpractice claims involving individual attorneys as well as claims
against law firms. Important factors in shaping trial outcome usually include
the testimonial demeanor of the defendant and the extent of plaintiff’s
documentation of dissatisfaction with the lawyer’s conduct. Developing
persuasive case themes and eliminating biased jurors are important for either
side.
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Medical Malpractice Litigation
The Changing Juror Climate
In Medical Malpractice Litigation
Physicians, like all other professionals, face a consumer who has higher expectations
now than in the past. While many older patients have a very respectful attitude
toward physicians there is a growing group of health care consumers who critically
evaluate the care they receive. These younger health care consumers are also
more likely to have experiences in HMOs as their only experience of mainstream
medical care. The higher expectations of these health care consumers are reflected
in their approach to medical malpractice claims.
The ongoing debate about rising
costs and changes in delivery systems have made health care an issue of concern
for many jurors. Jurors are more responsive to themes where cost cutting and
profit sharing by doctors are given as motives for the physician's conduct.
As health care services become a part of larger corporate organizations, insurance
providers and large practice groups, medical malpractice litigation has taken
on many of the same issues confronting other corporate defendants.
The Role of the Testifying
Medical Professional
The demeanor of testifying physicians, as well as that of other medical personnel,
is critical for determining a trial's outcome. Post-trial interviews with
jurors in medical malpractice cases point out that a common problem in testifying
physicians in nervousness. Nervous mannerisms detract from the witness' credibility.
Another common difficulty with medical witnesses is that their testimony is
often too technical and not understandable to the typical juror. The overly
technical witness appears arrogant and that is not a trait that jurors like
to see in a physician. Good witnesses are teachers who are able to explain
technical information in a non-condescending manner.
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