Science, Simplified: Five Tips for Presenting Scientific Evidence That Will Resonate With Juries in Drug and Medical Device Cases

Science is the focus of almost every drug and medical device trial, and that presents a variety of challenges for both plaintiff and defense attorneys. But the lawyer who masters the science—and, more importantly, the skill of communicating the science in a way that is clear, memorable, and persuasive—will have a distinct advantage at trial.

The purpose of this article is to help give that advantage to those who try these cases. What follows are five practical tips for presenting scientific evidence to juries in drug and medical device cases.

Tip One:
Understand Juror Preconceptions
as You Develop Your Themes

Effective trial presentation begins long before anyone enters the courtroom. Each juror has a set of preconceptions, and an effective trial attorney will discover and utilize them in developing themes. The key is to understand the influence of what Clotaire Rapaille calls the “culture code.” ¹Clotaire Rapaille, The Culture Code: An Ingenious Way to Understand Why People Around the World Live and Buy As They Do (2007). The culture code is “the unconscious meaning we apply to any given thing—a car, a type of food, a relationship, even a country—via the culture in which we were raised.” ²Id., at 5 (giving as an example the American experience with Jeeps versus that of French or German consumers).

Rapaille developed a methodology of discovering these hidden meanings imprinted in the psyche of different cultural groups, and creating effective marketing campaigns that appeal to the basic instincts of a target audience in a way that makes a product irresistible. ³For a discussion of this methodology, see Ricardo Salinas, “The Culture Code,” The Huffington Post (July 23, 2013), available at http://www.huffingtonpost.com/ricardo-b-salinas/the-culture-code_b_3636809.html (last visited July 1, 2014).

Like consumers, jurors also view many subjects in terms of codes. These codes impact the way jurors respond, for example, to pharmaceutical and medical products, to corporate entity parties, and to health issues that hit close to home. An effective trial attorney will recognize juror preconceptions and develop themes that are consistent with them, not contrary to them.

In certain instances, popular culture can be a useful reflection of the way in which jurors view a given topic. For example, if the injury at issue in your case is suicide allegedly caused by a smoking-cessation drug, then the well-publicized suicides of celebrities like Kurt Cobain can provide an entry point into jurors’ opinions on the topic. Or, by showing the range of well-publicized suicides through the decades, one can demonstrate that suicide is a complex phenomenon and an act that different individuals commit for different reasons, many of them unknown. Even where jurors may have sufficient personal experiences with a scientific issue, such as heart disease or cancer, it still may be beneficial to research how popular culture addresses these topics.

The goal is to develop your trial themes with an understanding of how jurors already think about a given topic, so that you can build those preconceptions into your case. In developing a checklist, it is critical to try to understand the preconceptions in your jury pool regarding the following topics and actors: (1) the drug or device at issue, or its general category; (2) the condition that the drug or device is intended to treat; (3) the injury alleged by the plaintiff; (4) the reputation of the defendant, or the drug and device industry generally; (5) the FDA, or any other government agencies involved; and (6) local doctors or hospitals, if they play a significant role. Once you know which of these topics and actors the jurors already tend to view favorably or unfavorably, you can better tailor your case to those preconceptions and begin building your science case on a firm foundation. At this stage of trial preparation, the best lawyer is the one who can stop thinking like a lawyer and instead develop themes from a juror’s perspective.

Tip Two:
Focus Jury’s Attention
on Problems With Other Side’s Case

The examples above also illustrate the dynamic of the jury’s shifting focus. This dynamic is inherent in our adversarial system. But an effective trial attorney recognizes its powerful psychological potential and structures the argument to harness it.

A common fact pattern in pharmaceutical cases includes the following elements: a plaintiff had a medical condition, took a medication to help treat that condition, and experienced a certain side effect from the medication. In such cases, plaintiff’s counsel will naturally focus the jury’s attention on the significance of the side effect or alleged warning defect. They will draw the jury’s attention to defendant’s conduct and defendant’s product.

In contrast, defense counsel will often turn the jury’s gaze to the severity of the plaintiff’s condition and the importance of the medication in treating it. They will draw attention to plaintiff’s medical records and plaintiff’s knowledge of the risks. Plaintiff’s counsel normally enjoys a slight advantage here, since the structure of a jury trial allows plaintiffs to benefit from both “primacy” and “recency.” ⁴“Primacy” is the psychological principle that people are more receptive to and tend to adopt the first information they are presented about an issue. “Recency” is the psychological principle that people can better remember the most recent information they are presented about an issue. Plaintiff’s counsel ordinarily has the opportunity to present its case both first and last, in the opening statement and the rebuttal closing argument. But defense counsel might build on pop cultural references here as well. For instance, John Wayne was a heavy smoker until his death from cancer in 1979. His life story shows how even the toughest of customers can succumb to nicotine addiction, thus highlighting the great need for the smoking-cessation drug at issue in the first example above.

In this battle for the jury’s attention, the side that wins is generally the one that spends more time on the opponent’s side.

Tip Three:

Present Biology First, Epidemiology Second

Drug and medical device cases also tend to require presenting epidemiological evidence, which can be very hard for jurors to digest. An effective trial attorney will teach jurors the underlying biology first, thus laying the groundwork for a better understanding of the important epidemiological evidence. For most jurors, biology is the “why.” It explains how a particular event happens inside the body. As a plaintiff lawyer, for example, it is critical for you and your experts to explain how the defendant’s drug or device is acting inside the body to cause the alleged injury. In contrast, epidemiology and statistics simply provide validation for the biology. It is rare that jurors accept statistics alone as proof of a particular biological effect. So it is important to provide the biological explanation first and then validate it with statistics.

Research suggests that juries generally understand most trial evidence quite well, and that there is actually substantial verdict agreement between juries and judges. ⁵See, e.g., Hans, Judges, Juries and Scientific Evidence,16 J.L. & Pol’y 19, 22-3 (2008) (“Hans”); Vidmar, The Performance of the American Civil Jury: An Empirical Perspective, 40 Ariz. L. Rev. 849, 853-4, 898 (1998); Ellsworth, Are Twelve Heads Better than One?, 52 Law & Contemp. Probs. 205, 217-18, 223 (1989). Nevertheless, “jurors themselves have identified the task of interpreting scientific and technical evidence and expert testimony as particularly challenging”—especially when it comes to statistical evidence. ⁶Hans, at 23-4; see also Sanders, The Jury Deliberation in a Complex Case: Havner v. Merrell Dow Pharmaceuticals, 16 Just. Sys. J. 45 (1993). The challenges that jurors inevitably face in fully processing this kind of material leads them, in varying degrees, to misunderstand, downplay, and underutilize statistical evidence. ⁷Faigman, et al., Modern Scientific Evidence, Vol. 1 §§4:18, 4:21 (2013) (“Faigman”). Jurors with a science background of course have less difficulty with such evidence. ⁸Hans, at 37 (showing that, when it comes to comprehending scientific evidence, college-educated jurors, jurors with numerous math and science courses in high school and college, and jurors with extensive job experience in math and science all outperform jurors with less education and experience in math and science, and even outperform judges). But the fact remains that most jurors are not screened for scientific background knowledge. This poses a dilemma, the response to which can critically impact how the trial evolves. Is it better to withhold confusing but meaningful data, or to present it and risk getting mired in it?

How one presents the evidence “can have quite dramatic effects on the inferences jurors draw from the data.” ⁹Faigman §4:18, at 251-2 (2013) (citing Koehler, When Are People Persuaded by DNA Match Statistics?, 25 L. & Hum. Behav. 493 (2001)); see also Nance and Morris, Juror Understanding of DNA Evidence: An Empirical Assessment of Presentation Formats for Trace Evidence with a Relatively Small Random-Match Probability, 34 J. Legal Stud. 395 (2005); Wells, Naked Statistical Evidence of Liability: Is Subjective Probability Enough?, 62 J. Pers. & Soc. Psychol. 739 (1992). In the pharmaceutical context, an effective trial attorney will present biology first and epidemiology second. This order of proof lays the groundwork so that, by the time the jury is asked to consider the difficult epidemiological evidence, they already have the background knowledge they need to decipher it. For example, imagine a case in which a plaintiff sues a drug company, alleging that the drug company’s diabetes medication caused the plaintiff to develop pancreatic cancer. Plaintiff’s counsel may believe there is epidemiological evidence to support this claim. But whether it does or not, that evidence is of little use if the jury does not understand the underlying biological issue first.

Jurors are generally interested in learning how things work. In drug and medical device cases, they look to counsel on both sides to explain what is happening in the body in cases involving the alleged harm. Epidemiological evidence is, after all, just a bird’s-eye statistical view of a basic biological issue. Experience shows that once jurors understand the biological issue, they understand the epidemiological evidence better too, and counsel becomes better positioned to use the epidemiological evidence in support of its argument. This is at odds with the Bradford Hill criteria, which list “biological plausibility” as only one of several factors to consider when determining a causal relationship between a biological factor and a certain outcome. But teaching jurors the underlying biology first is a powerful way to prime them for the epidemiological evidence that must be presented. Once again, much of the challenge can be overcome in the preparatory stage.

Tip Four:

Make Epidemiological Evidence
Simple and Memorable

When it comes time to face the difficult task of presenting epidemiological evidence, there are a number of devices an effective trial attorney can use to resonate with the jury.

First, use plain English. Lawyers can get major mileage out of small words. But beyond the terminology, there are other ways to simplify the evidence and translate it to “plain English.” For instance, there are often competing studies being bandied about at trial, and the jury has to keep track of them. In that context, why refer to “the Smith Study” or “the Jones Study” when you can refer instead to “the Harvard study” or “the year-long study” or the “2014 study”? The latter are easier to distinguish and remember, so that jurors do not have to mentally translate the meaning of “Smith” and “Jones” constantly throughout the trial. The simple act of referring to a study by its key trait makes that study more powerful as evidence.

Second, use surrogates. Why force jurors to pour over the data when there is a reliable surrogate who has already done that, and who has already come to an authoritative conclusion? For example, in some cases, it may be that the FDA or WHO has already reviewed the evidence at issue and expressed an opinion on it. Having these surrogates speak for you is enormously valuable. First, it simplifies the data, giving jurors a shortcut to its conclusion—what is sometimes called “peripheral processing,” as opposed to “central processing.” ¹⁰Faigman §422, at 262-3 (describing central processing as when jurors “slog through the testimony and work hard to assess the testimony on the merits,” and peripheral processing as when they instead “rely on other indicia of whom and what to believe”). Second, it lends credibility to the lawyer’s position—more than it would coming from an expert witness, whose testimony will be evaluated “in light of the juror’s own experience, common sense, and recognition of the adversarial nature of the trial process.” ¹¹Vidmar and Schuller, Juries and Expert Evidence: Social Framework Testimony, 52 Law & Contemp. Probs. 133 (Autumn, 1989); see also Faigman §4:21.

Third, use reminders. Research shows that juror comprehension is significantly improved when jurors are allowed to use checklists and take notes, and when they spend time deliberating on a particular issue. ¹²Hans, at 41, 44; Faigman §4:18, at 251. While jurors may not always have the opportunity to take notes or deliberate, an effective trial attorney can bridge this gap with good substitutes: make checklists part of your presentation, and refer to them routinely; spend extra time on the pivotal issues, and encourage the jury to deliberate on them; and step back periodically to take stock of where you are in the outline of the case, so that jurors do not lose sight of the context and feel lost.

Fourth, put the evidence into context. A trial attorney’s own characterization of the evidence makes a significant impact. Generally, in terms of comprehension, judges and jurors respond similarly and accurately when tested for their knowledge and inferences about scientific evidence. ¹³Hans, at 36. But when an attorney makes a claim—even a false claim—about the relevance or significance of the evidence, that claim tends to have a big impact on how jurors form their own opinions of the evidence. ¹⁴Hans, 36-37 (When a defense attorney made a (false) claim that mitochondrial DNA evidence is completely irrelevant in identifying a defendant as the source of a hair sample, the jurors split in half as to whether or not the evidence is irrelevant, while 85% of judges responded correctly that the evidence is legally relevant.); see also Thompson, Are Juries Competent to Evaluate Statistical Evidence?, 52 Law & Contemp. Probs. 9, 33 (Autumn, 1989) (finding that “it is easy to talk people into using inappropriate judgmental strategies” to evaluate evidence).

Imagine, for example, a case in which plaintiff’s counsel relies partly on anecdotal reports to establish the risks associated with a certain drug. From a legal perspective, that evidence might lack the weight of credibility. But it may still be very persuasive to jurors, especially if it confirms their understandings or generally comports with their predispositions. Rather than simply challenge the credibility of such evidence using dry logic, defense counsel can contextualize it in a memorable way—likening it to, say, reports of the Loch Ness Monster or UFO sightings. In this situation, an effective trial attorney is a news reporter who not only reports the facts but also puts them into context.

Tip Five:

Tie Evidence Closely to Facts of Case

Even in the best of circumstances, trials are often dull and repetitive to jurors; so do your best not to waste their time or yours. Whenever possible, tie your science presentation as closely as possible to the facts at issue in the case, and make the connection known to jurors.

After all is said and done, the case hinges on specific causation: did the product cause the plaintiff’s injury? But causation can become a difficult philosophical question in itself. Was the product a “substantial factor” in creating the harm? How did we get to this litigation? And more generally, was the defendant blameworthy? These issues are not always clear-cut. Moreover, jurors may be asked to weigh a bewildering set of evidence including statistical data, expert witness testimony, lay witness testimony, treating physician testimony, medical records, etc. Much or all of it may be conflicting and confusing. How does one cut through this chaos?

An effective trial attorney will tie the evidence as closely as possible to the central facts of the case. This means filtering out any excess information and distilling the case to the one or two (at most, three) essential issues in the jury verdict form. At this stage of trial preparation, plaintiff and defense counsel must fight two different battles.

For plaintiff, the critical front is defining “substantial factor.” For defendant, it is the struggle to advance alternate causes. In each battle, setting up clear contrasts can be a powerful weapon. For example, plaintiff’s counsel might be tasked with clarifying whether the defendant’s drug fits the somewhat nebulous term “substantial factor.”

In doing so, counsel can draw from an analogous case or idea where a substantial factor is clearly outlined, and show that the case at hand fits neatly within that outline. In turn, defense counsel can use the same device for the exact opposite conclusion, showing the jury that the case at hand does not fit neatly within plaintiff’s proposed outline, but instead looks more like something else—like, say, the suicide of a brooding musician struggling with inner demons.

Though there is a growing body of social science around it, presenting scientific evidence is not itself a science. It is an art. In each stage of trial preparation, there are many devices that counsel can deploy to make a case that better resonates with its audience, the jury. At the core of all these devices is the basic insight that, in this art, beauty lies in simplicity.