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The Litigation Consulting Report

And The Winner is . . . ?

Posted by Laurie Kuslansky on Mon, Oct 27, 2014 @ 01:27 PM

 

by Laurie R. Kuslansky, Ph.D.maine-seal-ebola-christie-rightsManaging Director, Jury Consulting
A2L Consulting

Nurse Kaci Hickox.  After she volunteered in Sierra Leone to treat Ebola patients, she headed to Newark airport to come home. Her timing was impeccable, because a mandatory quarantine was instituted on the ground while she was in the air. That day’s rule change was a reaction by New Jersey’s Gov. Christie to the frenzy caused by New York’s first Ebola patient, Dr. Craig Spencer, who visited numerous public places in two boroughs since his return from Guinea, before he developed fever and went to the hospital. Self-quarantine, evidently, would not satisfy a worried public.

The question we raised here the other day was who would be suing whom.  We got an answer one day later: the first mention of a lawsuit came a day after Nurse Hickox landed and was held and questioned at the airport for hours with no food and feeling like she was being treated like a criminal.  This caused her to become flush and upset, misinterpreted as having fever, and then jettisoned into a tent with folding chairs at a Jersey hospital with nothing to read, no cell phone, and no computer. Those came later.

A nasty media exchange ensued between Nurse Hickox and Gov. Christie over whether she had a fever. The irony was that an inaccurate forehead scanning thermometer picked up that she was flush . . . caused by her reception at the airport, but more accurate oral thermometers later showed she had no fever. 

Norman Siegel, civil liberties attorney, and her attorney Steven Hyman promptly threatened to sue to have her released, and presto . . . within 24 hours of that, she was. NJ soon after decided it was OK after all for her to leave and be monitored as a free person.  She chose to go to a state whose motto is “Dirigo,” meaning “I lead” or “I direct” – Maine.

The facts and her lawyers prevailed, at least for today.

live-free-or-die-ebola-nurseBut it is far from over yet.  Her lawyers plan to file a constitutional challenge to the state-imposed restrictions for health care workers returning to NY and NJ from West Africa after treating Ebola patients.  It will be interesting to see how one’s constitutional rights stand up against the public.

And the winner is... no one.  It is a vicious cycle.  By taking a strict stance with health care workers and anyone else who may have been in contact with Ebola, people willing to expose themselves to a pandemic are unwilling to expose themselves to mandatory quarantine, or as New Hampshire’s state motto says, Live free or die. It is ironic, but true.

If mandatory quarantines or travel bans are imposed, fewer will volunteer, West Africa will have less money with which to fight the outbreak, people can take indirect return flights to hide where they’ve been, and the outbreak won’t be contained as fast, so the rest of the world will be at higher risk ... until the rules change again, perhaps tomorrow.

Other articles from A2L Consulting focused on likability, trust and psychology:

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Tags: Science, Psychology, Medical Malpractice

So Little Trust, So Much Double-Speak

Posted by Laurie Kuslansky on Sat, Oct 25, 2014 @ 02:02 PM

 

ebola-doctorby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

Funny how officials repeat how hard it is to get Ebola, that the NYC doctor did all the right things, that you can’t catch it when there aren’t symptoms, so there’s no need to sanitize the subway because there’s essentially no risk. New York’s health commissioner at the first press conference related that the doctor at issue kind of self-quarantined, but not really... 

One online commenter said:

“Self quarantine is useless unless one is symptomatic. the moment he became symptomatic, he notified health officials. this man was never a risk to the public from a logically sound, well thought out and rationed scientific standpoint at least. From a fear based standpoint, he was terrifying.” [1]

-- But --

They’re sanitizing the bowling alley where he bowled, have a HazMat truck parked outside his Hamilton Heights apartment building, sealed off his apartment, are glad he didn’t go to work at the hospital since his return, which is their rule, are tracing EVERY place he went on his Metrocard, his fiancée was hospitalized and being monitored, and quarantined his 2 friends who had the most contact with him, handed out “Ebola – Am I at risk?” flyers in his neighborhood, consulted Ron Klain, Ebola czar appointed by Pres. Obama, a special CDC team is coming to New York , officials are unleashing their medical detectives to trace every person he had contact with, but ... no need to worry?!

So, which one is it?  You can’t have it both ways. 

You know what’s wrong with sort-of reassurance?  It doesn’t really work, especially in situations which may have a low risk of injury (hard to become injured), but high risk of harm (easy to die or at least, suffer badly), as is the case with Ebola: hard to get, hard to survive (about 50/50). 

Dr. Mary Travis Bassett, New York City's health commissioner said: “Chances of anyone contracting the virus from contact with him are ‘close to nil.’"  You know what the difference is between nil and close to nil?  Or between “nothing” and “almost nothing”? Like being a little pregnant vs. not pregnant.

A number of people wonder why such a knowledgeable person didn’t just bite the bullet and take one for the team and just stay home for 3 weeks, rather than do part of the NYC marathon, covering two boroughs (after stopping in two countries en route home to the U.S. from Guinea)? Especially considering the potential harm to others, is that really a big ask?  Doubt it.  Yes, it must be inconvenient and boring, but compared to the millions of residents and tourists in NYC who were not interested in potentially coming in contact with his bodily fluids, anger and anxiety are likely to replace compassion and sympathy for the good doctor.  The only way they’d believe that there is no risk is if he did not crisscross the city. Period.  As some comments reflect:

  • “In Africa, Ebola spreads through ignorance. Their customs, their traditions all help the spread. In the U.S, it will spread through Stupidity. People who know better, but just don't care or think they are impervious.”[2]
  • “Stupidity, and in this case, narcissism.”[3]
  • “No, but a physician should know the risk associated with treating Ebola patients and then travelling across the world, possibly carrying the virus, and exposing it to others. That's just common sense.”[4]

Ask anyone how they might come in contact with his bodily fluids and you’ll run out of time before you run out of answers.  Add to that, that the “experts” are uncertain about precisely whether some people get fever and how much or how soon in relation to a viral load, the exact moment someone may have become contagious, and on and on, till you can work yourself up into a froth of worry.  While running a 3-mile jog along Riverside Drive, someone might just sweat a little.  If someone pays by credit card, how many points of contact with their sweat might there be? The pen supplied by the vendor, the credit card itself, the leather folder?  If someone uses the shoes and bowling balls at a bowling alley? If someone drinks from a coffee cup in Chelsea?  If someone holds onto a pole on the A train?  If someone sneezes?! If someone uses a fork at the meatball restaurant in the Village?  If someone brushes their teeth, then touches their face?  If there’s an eyelash to wipe away?  If someone cleared the cup and dishes and silverware he used?

What will happen to those people and things he had contact with, such as the Uber driver, or at the bowling alley, the café, the eatery, the subway? How many people will want to get into that car, or bowl at that place, or eat or drink at those places? Or take the subway.

Online comments by ordinary people give us a peak into the kinds of things on people’s minds.  On one hand, we have the calm, rational folks who say that there is no reason for someone without symptoms to be quarantined until/unless they have symptoms, which is what happened here, so there’s nothing to worry about now.  On the other, we see this response:

  • “Why aren't healthcare workers from Ebola-stricken areas quarantined for 21 days before being allowed to travel?” [Barkway][5]

When I was growing up in Brooklyn, N.Y., “Bellevue” was where “crazy people” were sent.  Now, it is the go-to place for treating Ebola.  Funny, how things change.  Also funny are the facts. More New Yorkers will risk getting tuberculosis, the flu, and other airborne diseases which they are much more likely to encounter than Ebola, but fear them less because those involve high risk of injury, but a lower risk of harm.  And, they are more familiar and less exotic. They aren’t diseases from “over there” that happen to “other people,” like Ebola.

Fast forward (say 21 days or so from Oct. 23rd), and, if someone in New York (who does not know the good doctor, or who was not involved in the heroic attempt to contain Ebola in west Africa) gets Ebola, what will the caption on the legal Complaint look like?  How many Plaintiffs and how many defendants might it include? 

Say no one gets sick (hopefully), but only the mayor, the governor or others in the PR campaign to reassure New Yorkers, sort of, decide they’d rather not bowl at Gutters in Williamsburg, nor have coffee at the Blue Bottle coffee stand at High Line Park in Chelsea, nor eat at the Meatball Shop in the west village, nor take the A, 1 or L trains, who will pay?

My guess is that the owners of these entities may face a battle for business interruption, loss of business, the cost of cleaning up and investing in overcoming their losses and other issues they may face. 

Who might be liable?  Can plaintiffs establish proximate cause with the patronage of the doctor? If so, is he or Doctors Without Borders or others potentially liable? Who else may be?

Established “experts,” including the CDC, issue changing protocols, so who can say whether someone has followed the rules or whether the rules which keep changing are sufficient?  If not, I see a lawsuit in the making.  As far as we know, the doctor followed the existing “rules” and did nothing wrong, but if someone else gets sick in the next 21 days, that won’t be enough.

Of course, most of all, we all wish the good doctor, who is clearly a humanitarian, a full and speedy recovery and we appreciate his noble efforts dedicated to heal others in need.  We also wish he had used Netflix and ordered in instead of what he did... and it would no doubt cost a lot less to all concerned.

The good news?  The “experts” say that a hard surface that had contact with the virus only poses a risk of transmission for about 2-4 hours after the infected contact, so if -- before you take a subway or ride in an Uber car, or go bowling, drink or eat, you read this blog and peruse some of our other articles v-e-r-y s-l-o-w-l-y, you will hopefully be, almost completely, just about 100% ... safe.

Other articles from A2L Consulting focused on likability, trust and psychology:

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[1] marktopherAlex at http://www.cnn.com/2014/10/24/health/new-york-ebola timeline/index.html

[2] Seanem44 PoohBearJoey, op cit 1.

[3] MonkeyProud Seanem44, ibid.

[4] Zoidberg, ibid.

[5] Ibid.

 

Tags: Science, Psychology, Medical Malpractice

6 Ways to Convey Size and Scale to a Jury

Posted by Ken Lopez on Mon, Jul 25, 2011 @ 09:30 AM

 

All good trial exhibits have one thing in common: They are able to appeal to juries by referring to ideas, principles, objects, or locations that jurors already know about in their daily lives.

For example, a trial lawyer may need to show how large, or how small, something at issue in the litigation actually is. An effective way of doing this is to relate it to the size or scope of an object with which a juror has personal experience.


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We have prepared many exhibits that work in this manner. Not only do they give the jurors useful information but they also do this in a manner that jurors will easily recall when it comes time to deliberate. If we can present something as being “as large as a football field,” for example, we can lock that picture into the jurors’ minds.

1)  HOW FAST: In the below graphic that we used in a medical malpractice case, evidence showed that a radiologist rushed his work and missed cancer diagnoses. He read X-ray films three times as fast as an average radiologist. What did that mean? Jurors know that “speed kills,” and a very effective trial exhibit compared that speed to traveling three times the speed limit on a highway – 210 miles per hour instead of 70. That intrinsically seems reckless.

 

2)  HOW MUCH TIME:  In the graphic below, evidence proved that conspirators in a government contract dispute in New Orleans had spent 3,548 minutes on the phone. That number by itself would probably mean nothing to a jury. We translated that fact into a graphic that showed that in 3,548 minutes, someone could drive from New Orleans to Wasilla, Alaska (an election year reference). In that amount of time, a lot of conspiring could be accomplished.

how to show scale in demonstrative evidence 


3)  HOW LITTLE IMPACT:  In a securities case, we likened the plaintiff’s allegation that a single stock purchase affected the stock price of a company for 14 months to the notion that a single runner’s taking the lead in a marathon for eight minutes affected all 35,000 contestants in the three- to four-hour race. That defies common sense, and jurors could conclude that the allegation regarding the stock price also defied common sense.

showing scale in litigation graphics 

4)  HOW MANY:  In a Miami discovery dispute, we provided a graphic (below) of Pro Player Stadium (the then name of what is now the city’s Sun Life Stadium), with a seating capacity of 75,000. If that was the universe of all the documents at issue, the number that related to one client was a small portion of one section of the stadium, we showed.

Discovery dispute scale 

5)  HOW LITTLE:  In an environmental case, our exhibit (below) showed that the cleanup costs at issue, when compared with the company’s annual sales, were the proverbial “drop in a bucket.” That is far easier for a juror to remember than the numbers $20 million out of $4.4 billion.

Drop in the bucket BaldYarn! 

6)  HOW MUCH:  In this environmental insurance coverage litigation exhibit, the capacity of an underground tank farm is related to above ground pools.  It was a small amount of property and the capacity of the tanks was surprising when conveyed in this way.

UST Underground storage tank volume infographics

 
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jury demonstrative evidence 

Tags: Energy Litigation, Litigation Graphics, Trial Presentation, Courtroom Presentations, Juries, Animation, Science, Environmental Litigation, Securities Litigation, White Collar, Medical Malpractice, Nuclear Power Plants, Information Design

Litigation Graphics: The Power of Checklist Trial Exhibits

Posted by Ken Lopez on Fri, Jul 15, 2011 @ 09:52 AM


Although checklists are not as dramatic as other types of litigation graphics such as three-dimensional animations or interactive PowerPoint timelines, they can be very effective in persuading juries on key issues and in making it easier for them to recall the important elements of a case.

In the trial context, checklists are usually presented as straightforward representations of the factual or legal elements of a case that can be filled in with a yes or no answer.

These apply accepted principles of human psychology. A good salesperson can often take control of a conversation by getting a prospect to answer his or her questions with a series of “yeses.” A great speaker can engage an audience by using repetition artfully to carry the audience along. Similarly, a checklist can help make technical points much clearer and can help a judge or jury organize material that is potentially difficult by breaking it into smaller pieces.

litigation graphics prepared early win more cases

An article published in April 2007 in Champion, the magazine of the National Association of Criminal Defense Lawyers, discussed a study that tested whether jurors gain a better understanding of complex evidence related to mitochondrial DNA (mtDNA) if they are given a checklist that guides them through the evidence by asking them a series of questions.

The study, funded by the National Institute of Justice, concluded that “jurors provided with an mtDNA checklist performed better (on an expanded Jury Comprehension Scale) than those without access to the checklist.” The jurors understood the complex testimony of expert witnesses better if they had a checklist to break down the issues. Accordingly, the NACDL recommended that practitioners consider using checklists, among other techniques, to increase juror comprehension.

For example, by paying attention to the medical malpractice checklist below that we prepared as a trial exhibit, jurors could easily understand that the patient experienced the same symptoms before the alleged malpractice as afterwards and that damages should not be awarded.  Although tens of millions of damages were alleged, none were awarded. Listing six different symptoms and having each one answered in precisely the same way not only breaks the evidence down in a comprehensible manner; it also places the jurors in the habit of answering in the same fashion for each symptom.


 

Similarly, in the checklist below, which we used in a fraud case, we broke out the legal elements of fraud and of conversion of a corporate opportunity and answered “no” to the question of whether each one had been adequately proved. By conceding some "yeses," we successfully earned credibility with the jury.


 
And the litigation graphic checklist below, which was introduced in a patent invalidity case, breaks down the invalidity claim involving indoor ice making systems for refrigerators and other refrigerator technologies into a dozen specific aspects of the technology, making it easier for jurors to understand.


 
 Litigation graphics and juror communications

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Trial Consulting, Juries, Patent Litigation, Science, Psychology, Checklists, Medical Malpractice

Information Design and Litigation Graphics

Posted by Ken Lopez on Mon, Feb 21, 2011 @ 09:52 AM

by Ken Lopez

The term information design is less than fifty years old.  The use of specialty trial graphics in the courtroom started less than thirty years ago.  Only very recently have the terms been used in the same sentence. That is, only recently have individual practitioners of both arts emerged.

Wikipedia describes information design as "the skill and practice of preparing information so people can use it with efficiency and effectiveness. Where the data is complex or unstructured, a visual representation can express its meaning more clearly to the viewer."  I would call it simply the effective and efficient presentation of information. Applied to the litigation graphics consulting industry of which I am a member, I would add the word persuasive.  This is true since the job of the modern litigation graphics consultant is to persuade not merely to present information.

 

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Effective information design is not new as evidenced by Charles Minard's 1869 chart below.  It plots the size of Napoleon's 1812 army (width of the beige and black areas), the distance traveled, the time elapsed and temperature on the bottom.  In a nutshell, it tells the ill fated story of the near complete elimination of Napoleon's 400,000 man army due to battle deaths but mostly deaths from sub-freezing weather conditions.  On the original, each millimeter eerily and with clever mathematical alignment represents the deaths of one thousand men.  Looking at the chart, it's no wonder Tchaikovsky penned the 1812 Overture to celebrate the Russian victory defending Moscow.

MinardNapoleanChart resized 600

[courtesy Wikipedia Commons]

Of course, effective information design is around us every day.  Mostly, it goes unnoticed except by those of us who study it, and that is exactly the point.  When we instantly know which bathroom door to walk into, what dangers lie ahead in the road, which button to press on the latest Apple product or which subway line will get us to where we are trying to go, we are likely experiencing effective information design.  The map of the Washington DC Metro is one of my favorites.  A comparison of the current map and a map drawn to scale is below.  It is pretty clear which works best, and it strikes me as funny that the scale version looks a lot like the style of NYC's map which recently underwent a redesign.

DC Metro Map Information Design
[courtesy Wikipedia Commons

 DC Metro Map Poor Information Design
[courtesy Wikipedia Commons]

In the courtroom, incorporating information design with trial graphics requires the talents of a highly skilled practitioner.  This is true since the viewer (judge and/or jury) will not usually have much time to consider or quietly reflect on the graphic.  The courtroom viewing experience is an altogether different one than studying a printed subway map or reviewing the latest New York Times information graphic.  Instead, the courtroom information design or trial exhibit is something that must be quickly digested and designed with maximum persuasive impact.  I like to think of litigation graphics as telling a one sentence story as opposed to Charles Minard's paragraph-long story about Napoleon.

For example, you might want to say a firm or person is speaking from both sides of their mouth:

 Information design speaking both sides of mouth
Or you might want to say someone is playing a shell game with company ownership:

Information design shell game trial exhibit

or you want a jury to remember a key term like video tagging in patent litigation:

patent tagging resized 600

or you might want to summarize how the standard of care requiring a single diagnosis for multiple medical symptoms was not met:

Information Design Standard of Care
 

It is pleasing for me that the worlds of information design and trial exhibit design have merged in a handful of trial graphics consultancies. These firms are putting out amazing graphics on a daily basis that persuade when millions or billions of dollars are at stake.  I am honored to be a part of this industry and proud of my firm's achievements in advancing its growth and acceptance.

CONTACT US for a free consultation and/or conflicts check.

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litigation graphics demonstrative evidence


Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Trial Consulting, Juries, Patent Litigation, Psychology, Medical Malpractice, Information Design

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Authors

KenLopez resized 152

Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


tony-klapper-headshot-500x500.jpg 

Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.


dr laurie kuslansky jury consultant a2l consulting







Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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