In my first post in this series on jury research, I gave a bit of background on how jury research as a discipline came to be. Now, I want to go a little deeper into the three main types of projects we at DecisionQuest (a U.S. Legal Support company) work on when we’re assisting a client with preparing their case for trial or mediation. There are three main types: focus groups, mock trials, and community attitude surveys.
Even if you’ve utilized a consultant to assist with jury research in the past, my hope is that the article below demystifies the process for each and makes an argument for how impactful jury research can be in influencing case outcomes.
A good jury research project starts with getting a diverse group of mock jurors who represent the diversity of the venue where the trial will take place. To find mock jurors, we use census data from the trial venue and, using that information, recruit a group of mock jurors who are demographically similar to what the panel the jury will be selected from looks like. This includes similarities in terms of employment, education, income, race, gender, etc. As a security measure, DecisionQuest will question potential participants on a list of potential witnesses in the case as well as case related industries to ensure our mock jurors don’t have any connection to the case, or the people involved in it.
So, you’ve decided you want to leverage a consultant for jury research on your next case. Where do we as consultants typically begin? The first “step” we like to recommend (if we’re engaging early enough in litigation) is a focus group. We usually do these early in the life of the case, either pre or during discovery.
A focus group is an exploratory research project that is used to help understand how a group of people, similar to the real-life jury, are going to react to the facts of the case. What we are trying to understand in these projects is:
This information is incredibly helpful in deciding (rather than guessing) on who to depose, as well as what questions to ask them. The information that is discovered in these focus groups can also be critical in helping shape jury selection.
In a focus group, we get 10 to 12 people together (either in person or virtually) and have a discussion with them about the facts of the case. In the beginning, we give them basic information about the case and then we have them tell us what they find important or confusing. Then, we ask them what experiences in their lives they are relying on in trying to decide the verdict.
Another benefit of doing this research is to find the information jurors want to know about a case that neither side thought to talk about. Often if the jury is not given information they feel is important to the case, they will “guess” at what the missing information is. This “guessing” at missing facts of the case can often be the difference between winning and losing.
One of my favorite examples of the impact pre-discovery focus groups can have on a case is a case I worked many years ago involving a gentleman who had been to his urologist with symptoms of kidney stones. He shows up to his urologist again with the same symptoms and the urologist orders what’s called a retrograde pyelogram. A few days after having the test done, he returns to his doctor and the doctor says, “I don’t see any kidney stones, they may have passed. If you have problems, come back and see me in a year.”
Being a 35-year-old guy and having no further problems, he does not go back and see the urologist.
Around two years go by, and the man starts having similar symptoms again. He comes back to the urologist; they do the same study, but this time he’s got an 11-centimeter tumor on one of his kidneys. Sadly, for this patient, this is a death sentence. He wonders, “How did this happen?”
As it turns out, at this hospital, as with most others, when any type of radiological study was done, they had a policy that it must be read by a radiologist. So, the radiologist looked at it and wrote in his report, “Suspect a mass. Recommend a follow-up study.” The hospitals protocol is to create three copies of that report. One went with the actual films, one copy stayed in the hospital record, and one was sent to the doctor ordering the study. The doctor that ordered the study said he never received it (although he admitted he knew one was always generated) and the radiologist said he sent it. A classic he said-he said. Because of these facts, the plaintiff’s attorney thought they had a good case. Despite this confidence, the attorney decided to do some jury research before he had taken a lot of his key depositions to see what he was missing about the case that a jury would want to know.
When we did a focus group for this case, the women in the group were very critical of the plaintiff. I asked them, “Why are you so critical of the patient?” And many of the women replied, “When I have a pap smear or mammogram, and I don’t get the report back from the doctor, I take personal responsibility for my health, and I call them.”
So, we asked, “What would you guys need to hear to not be critical of this man?”
And they said (almost to a person), “Well, we need to know that he didn’t know there was a report coming from the radiologist, and that this test is nothing like a routine pap smear or mammogram.” At that point, we hadn’t deposed the treating doctor. When we did depose the urologist, we asked him if the study was anything like a pap smear or mammogram. He responded that it was not, and that the patient wasn’t told to expect a report from the radiologist.
We believe these focus group findings are what kept us from losing the case. If we had not done the research, we never would have thought to ask those questions of the treating physician. As can be seen in this example, the jurors filled in a missing piece of information, i.e. “did the plaintiff know there would be a radiology report” with, in this case, a conclusion that would likely have damaged the plaintiff’s case.
To be clear, finding these holes in the story of a case can benefit both the defense and the plaintiff’s case because there are usually multiple holes in both sides story.
If you’re going to do jury research after the discovery phase, we recommend a mock trial because it is more confirmatory in scope than a focus group. Post-discovery, you likely already know what the witnesses are going to say, and the expert reports have been exchanged. Now it is time to test your trial strategy and a mock trial is great for that.
In a mock trial, we give jurors a survey before they hear the presentations that ask questions similar to those asked in voir dire. After filling out that survey, the jurors will hear summary presentations from both the defense and the plaintiff. The length of these presentation varies from case to case, but each typically lasts between 60 and 90 minutes. In most cases, the jurors will also hear a short plaintiff rebuttal as well. After hearing each presentation, the jurors fill out a short survey on their reactions to the case and which party at that point in the project they are leaning towards.
Below are the types of questions we might ask at a typical project:
After jurors have heard all three presentations (plaintiff and defense summary presentation and the short plaintiff rebuttal) they are read the jury instructions and then individually fill out the verdict form. After they have done that, we will have them fill out a post presentation survey that gets at the key questions the trial team has about the case. This may include jurors’ reactions to some of the arguments each side has made in the presentations, their evaluation of key witnesses, etc.
After the jurors complete the surveys, we then break them into groups (usually two groups but it can be as many as the needs of the project dictate) to deliberate to consensus. If consensus in the group ends up being not possible, we note everyone’s individual preference for the verdict.
The DecisionQuest research team will use all the information we learned from the day to create a report that includes our observations and recommendations.
The final example of jury research is a juror community attitude survey. These are similar to political polling that you see today; they’re large samples, 150, 200, 300 plus people, depending on the size of the venue.
How it works is that we give a group of 200-300 people (depending on the size of the venue) a survey that asks them demographic questions as well as attitudinal questions related to issues in the case. The participants are then given a short description of the case followed by questions related to which side they would vote for and what lead them to that decision.
As an example, a defendant could test whether to accept liability in a case, and if so, how much they should offer as a damage anchor. Another example would be a plaintiff testing how much their anchor should be or they may look at which of two or three venues would be more favorable for them to file a case.
Because of the large sample sizes, the data from these projects can also help guide jury selection if they find demographic or attitudinal correlations with juror preference for either the plaintiff or the defense. These surveys along with expert testimony can also be used to request a change of venue.
Jury research can be a critical aspect of preparing your case for trial or mediation. While the jury research methods above started as in-person projects decades ago, DecisionQuest has now adapted them into virtual projects, giving our clients the flexibility to do their research either in person or online.
Stay tuned for my final post in this series, where I break down how we conduct jury research online and the differences and similarities between virtual jury research and in-person research.
Content published on the U.S. Legal Support blog is reviewed by professionals in the legal and litigation support services field to help ensure accurate information.