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Medical Risk Assessments in the COVID-19 Era: Lessons for Drug and Medical Device Defendants

October 30th, 2020|

As the COVID-19 pandemic drags on in the United States, there are potentially many changes in attitudes and behaviors that could take place in the American population. The experience of quarantine, economic uncertainty and the unprecedented health risks all could contribute to unique changes in society. One area in which a change might occur is in risk-taking attitudes and behaviors, especially in a medical context. Will people be more willing to take risks, given the desire to maintain somewhat of a normal lifestyle during the pandemic? Or, will the fear created by dangers of the virus cause people to adopt

Mock Trials and Focus Groups: Letting Go of Control and Taking it Back at the Same Time

October 2nd, 2020|

One of the biggest frustrations trial teams and client representatives feel in a mock trial or focus group is the lack of control as they sit and observe the juries deliberate and discuss their case.  Jurors get confused, misunderstand and misuse evidence, the legal instructions, and even the process.  It can be painful to watch.  We like to set these expectations from the start. I often greet client observers in the observation war room with some variation of the following: “You have done your job, presented the issues in the way you wanted, to test what you wanted, but make

Strategically Approaching New COVID-19 Jury Selection Procedures

August 20th, 2020|

  The priority of social distancing in the age of COVID-19 has led to innovations in trial practices, including substantial changes to how jury selection is conducted. Jury selection is one of the most people and space-intensive elements of a trial. Typically, a large pool of potential jurors is brought in, stacked next to each other in a closed space, sharing a microphone, and/or vocally projecting their answers to voir dire questions.  In response to the risk such conventional practices pose, courts have sought to use larger venues – armories, gyms, or convention centers – in order to allow socially-distanced

How Federal Patent Tutorial Video Influences Jurors

August 7th, 2020|

Originally published in Law360, August 4, 2020 The COVID-19 global pandemic has led to an unprecedented backlog of cases, and, as a result, courts are considering ways to alleviate the pressure on the system. Last month, the judge in the U.S. District Court for the District of Delaware case Shire ViroPharma Inc. v. CSL Behring LLC asked the parties to consider the use of a bench trial in their patent dispute.[1] Given the increasing delays and growing backlog, such requests will likely become more common. As parties consider this request in patent litigation, it is important to understand how both

Trial Consultants as Key Assets in Multidistrict Litigation

July 9th, 2020|

Managing the scope of multidistrict litigation (MDL) is a daunting task for attorneys and trial teams. The sheer number of cases, attorneys, and witnesses involved in the process creates significant challenges, especially when trying to keep everyone involved in the process “singing from the same sheet music.” Defining, designing, and modifying strategy and tactics based on data, insight, and feedback across cases and participants is critical to ensuring more predictable and successful outcomes. At Tsongas, we have been deeply involved in numerous, significant MDLs. As litigation and trial consultants, the aim of our approach is to promote the use of

Sharing Covid-19 Efforts Unlikely to Change Verdicts

June 19th, 2020|

Originally published in Law360, June 12, 2020 The COVID-19 pandemic has elicited a variety of responses by businesses trying to build or maintain good relationships with consumers. Anyone watching television has been bombarded with commercials from companies expressing that they “care” and that “we will get through this together.” Some businesses are going beyond expressions of support and taking steps to help the response to the pandemic, including donations of personal protective equipment and other support for health care workers. As trials begin again in the U.S., companies that defend themselves in front of juries will be confronted with a difficult

Who Might Not Be on Your Jury in the “New Normal” Trial?

June 11th, 2020|

As our country has started to reopen, we have heard a lot about the “new normal”. It appears inevitable that social distancing and mask wearing will be a part of our public events for a long time. Courts across the country have started to adopt new normal practices to reopen the justice system. Early in the pandemic, a New York juror participated in the deliberation via video while others were in person. In Portland, Oregon, criminal trials have resumed with restrictions on numbers and space. In Texas, a Summary Trial in a civil matter was held over Zoom. Trials everywhere

The American Jury Trial: The Way Forward

June 4th, 2020|

The courts closing all around the country was jarring to many of us in litigation and litigation support. Since our jury consulting firm opened in 1978, it had never happened. As of this writing, courts around the country are weighing their options on how they can get on with the essential process of delivering justice. Jury deliberations in New York have taken place with one of the jurors participating remotely. Socially distant jury trials are currently underway in Portland, Oregon, for criminal matters. In Texas, a Summary Trial was held in a civil matter and every participant was remote. The

The Truth Told Well and Medical Care Plus Medical Caring: Medical Malpractice Witness Preparation

May 21st, 2020|

I recently presented to a national medical insurance organization as part of a panel concerned with the explosion in medical malpractice jury verdicts in recent years. The panel, “Buckle Up for a Bumpy Ride…Navigat[ing] Social Inflation Turbulence,” focused on identifying some of the key influences behind the rise of these larger medical malpractice jury verdicts and providing insight on practical prescriptions to the problem. The consensus on the panel was that: (1) the social inflation in a medical malpractice verdict is not only trending, but rose sharply in 2019; (2) that the role of jury demography – and specifically

Don’t Forget About Ethos

May 8th, 2020|

Dr. Anthony Fauci has it all. From a standpoint of persuasion and credibility, he is the full package, whose presence at a podium jumps beyond his modest 5’ 8” frame. In a recent poll conducted by the University of Northern Florida, Dr. Fauci had the approval of 85% of registered Florida voters, nearly doubling that of the President’s approval as a reliable source of information. Dr. Fauci is straightforward but calm, expert but accessible, serious but pleasant, authoritative but likable. Just the other day, in the White House press briefing, he made a passionate appeal (pathos) about social distancing based