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FAQ: Frequently Asked Questions About Jury ResearchOctober 15, 2019
“WHEREAS LAWYERS ARE TRAINED TO THINK LEGALLY – JURORS TEND TO USE THEIR EXPERIENCES TO UNDERSTAND CASES.”
Following are some of the most frequently asked questions about jury research:
WHAT IS JURY RESEARCH?
Jury research is the study of the behavior of jurors. The study of jury attitudes and decision making in the world of litigation (versus the academic study of jurors) involves studying the responses of people in a particular venue or geographic location who represent potential actual jurors. These individuals, known as mock jurors or surrogate jurors, will either be surveyed by telephone (large samples for quantitative research) or actually hear summary versions of a case and render verdicts (small samples for qualitative research). The idea is to be able to analyze the jurors’ predispositions toward the case, as well as to understand their reactions to the actual evidence and themes of the case.
WHAT DO ALL THESE DIFFERENT NAMES MEAN – MOCK TRIAL, FOCUS GROUP, ETC.?
The term “focus group” comes from the world of marketing where focus groups have been used to test markets for various products for years. A focus group involves testing opening presentations in front of mock jurors who deliberate to a verdict and/or participate in a facilitated discussion. The term “mock trial” is often used interchangeably with “focus groups,” but a mock trial may alternatively be shorthand for a summary trial or trial simulation, (in which openings, closings, and witnesses are tested in front of mock jurors). As noted above, caution is required because these terms are used differently by different companies or consultants. We have chosen to define our research projects by what we want to accomplish, such as Solution Generating Research, Strategy Development Research, and Trial Simulation, which then defines the rationale, the stimuli that will be used, the methods of measurement, and the length and complexity of the exercise.
WHY DO I NEED A JURY CONSULTANT TO DO RESEARCH – CAN’T I SET IT UP MYSELF?
There are four main reasons you should always hire an experienced jury consultant when you consider this research. 1) Jury research is more than just logistics. For example, market research firms are not geared for the specific needs of litigation research (issues of venue sampling, confidentiality, etc.), and thus the wrong people could end up in your “juries.” 2) As trial consultants, we know how to analyze the results. We have observed and studied thousands of mock jurors in hundreds of venues around the country. We can use our knowledge about how jurors respond to intellectual property, commercial, product liability, personal injury, antitrust, and employment cases in analyzing your case. 3) Because we have studied research methodology we are able to understand the threats to the validity of the research and various limitations of the findings. 4) We bring something different to your analysis. Lawyers are trained to think legally—jurors tend to use their experiences to understand cases. You need someone who can think like a juror and analyze jurors’ responses. We are psychologists, business professionals and communication specialists who will analyze your case and provide a much needed objective perspective, one based on the thousands of jurors we have watched deliberate.
WHERE DO YOU GET THE “JURORS”?
The jurors are recruited, based on our specifications, through sub-contracted market research companies, where we will often hold our research as well. They will assemble mock jurors by cold calling and relying on their database of potential market research participants. Though many jury consulting companies use newspaper ads to recruit, we find this method lacks the guarantee of an appropriate matching sample and the confidence that you will be able to maintain confidentiality. We make sure to screen carefully to make sure that no juror will know about your client or the research case.
BUT MOCK JURORS ARE THE SAME AS REAL JURORS, RIGHT?
They absolutely are! We can tell you that the most common feedback that we receive from attorneys who have tried cases and talked to their jurors afterward, and from our own extensive post-trial interviews, is that the jurors said the same things regarding the actual case as the mock jurors did. The mock jurors we recruit will react to the case in the ways “typical jurors” will with only two exceptions. Mock jurors are often privy to less information because they have received only a summary of the case and thus may have limited feedback for the attorneys. And, of course, they are individuals, and no one can predict the exact individuals who will be chosen as jurors, or predict how the group dynamic that will ensue in the jury room will affect the outcome of the case.
WHAT IF GETTING A READ ON MY WITNESSES IS IMPORTANT TO ME?
In this case, a research project that includes the evaluation of witnesses could be designed. For example, a Trial Simulation could provide jurors with openings, video clips of witnesses (or live witnesses) and closing statements to get the real feel of the trial. Or, a research project designed to evaluate only witnesses could be set up.
WHAT TECHNOLOGY IS AVAILABLE TO HELP ME UNDERSTAND THE JURY DECISION-MAKING PROCESS?
U.S. Legal Support’s trial services division, DecisionQuest offers several online research products, including JuryLive™ and CaseXplorer™. Previewing your case before a mock jury can be a complex, time-consuming undertaking that is not feasible for every case. JuryLive, an online tool that lets you observe how a potential jury reacts to your case in a fraction of the time it takes to convene a traditional mock trial. With JuryLive, you can see how your case will play live — in real time — at a price that virtually every case can afford.
With CaseXplorer, you can build detailed online surveys and poll a large, diverse pool of potential jurors. You can limit your survey pool to a specific venue or canvas the entire country. Now, you can know how your case will play out and uncover unexpected hurdles – like bias in your venue’s jury pool that may affect your case – all online, all at a price that makes sense for virtually every case.
Additionally, our research methodology, Moment-to-Moment™ is a unique computer-based measurement device that allows you to watch on screen as jurors rate opening statements or witnesses with handheld scoring devices that look like simple calculators. Instantaneous measurement of reactions as well as on-site data collection and generation is possible using this technology. While this is, in some ways, different from the actual trial, we find that it is the one important option available in a research setting to really get into the heads of the jurors as they are processing the information presented to them.
WHAT PERCENTAGE OF THE TIME DOES YOUR MOCK TRIAL PREDICT THE ACTUAL TRIAL OUTCOME?
It is not possible to correlate the mock jurors’ assessments and the trial outcome for two basic reasons:
- If jurors have disliked the case as presented we make recommendations for improving the strengths and eliminating the weak points of the case. As such, a “negative” outcome in a mock trial often results in a positive outcome at trial.
- Many cases do not go to trial. If a negative outcome occurs at the mock trial, lawyers will sometimes re-evaluate the settlement value of a case. The research can enable the attorney to be more confident about the possibility of winning a case (and thus approaching settlement with different expectations) or more soberly realistic about the chance of losing (and thus decide to change a settlement demand or increase an offer).
Thus, despite the obvious research value, there is no ability to correlate research outcome with trial outcome. However, we can say with confidence that our research is predictive of typical juror responses. As mentioned above, we verify this through post-trial interviews with actual trial jurors, and through anecdotal evidence from clients.
BUT I NEED A STATISTICAL ANALYSIS OF THE VENUE—WHAT IS THE RIGHT RESEARCH FOR ME?
The more you need a scientific statistical analysis, the more people you need to survey. Multiple group research or a telephone Community Attitude Survey may be more appropriate for this need. Damage estimates, assessment of the venue regarding a prediction of various verdict outcomes or correlation between demographics and potential verdict response are all more appropriately determined by telephone sample of 200 to 400 people or more. We have skill and experience in conducting these surveys. We use a national survey house with all of the appropriate technology to pinpoint the appropriate sample we have designed for you. The surveys generally last ten to twenty minutes – and yes, people like jurors do answer the phone and complete the surveys. The questions can include general questions about relevant attitudes, demographics, and even case specific questions.
MY CLIENTS SAY A RESEARCH EXERCISE IS NOT WORTH THE EXPENSE—HOW CAN I PERSUADE THEM THAT IT’S WORTH DOING?
“Once you’ve done jury research on a case you’ll never want to go to trial again without doing research,” says one of our repeat attorney clients. The value of the research often cannot be appreciated unless you’ve seen how powerful it is in helping to shape the case based on potential juror views. We have saved millions of dollars in costs since cases frequently settle more quickly or for a different amount of money than before the research. But in fact, the value of utilizing juror consultants or jury research is often best recognized when a consultant was not called and the venue was incorrectly assessed or good themes were not communicated at the right level for the jury. While cost is always a litigation concern, what is the cost to your client of not knowing how a future jury will perceive your case?
Email us at [email protected] to learn how our full suite of trial consulting services can help you prepare for your next trial.