Jury research, if conducted properly, is an extremely effective tool that can be utilized by trial teams to assess the wide spectrum of reactions that are possible to the particular facts of a case. There are a variety of ways that research can be conducted, some more effective than others. Check out the article below, written by Opveon’s CEO and Sr. Trial Consultant, April J. Ferguson, with some tips and tricks for selecting the right form of jury research for your case.
Jury research, if conducted properly, is an extremely effective tool that can be utilized by trial teams when assessing the wide spectrum of reactions that are possible to the particular facts of a case. There are a variety of ways that research can be conducted, some more effective than others. This article will cover various types of jury research, the pros and cons of each, and pitfalls to avoid when conducting jury research.
I am routinely asked by my clients, “Is my case large enough to justify the costs of jury research?” The answer to this question is simple -- if there is significant risk and/or exposure to your client, some form of jury research is warranted. Does this mean that every case requires jury research? Certainly not.
However, in cases where exposure is great, monetarily or otherwise,pre-trial research can help you make strategic decisions that will affect thecourse of the litigation.
Thereare numerous reasons to perform jury research but the most compelling reasonsto conduct jury research include:
· Testing the attitudesand perceptions of demographically similarjurors to the facts of your case.
· Identifying strengths and weaknesses in your case.
· Testing and developing case themes.
· Assessing the difference between individual juror analyses versus the group deliberation process. This is known in the industry as testing the “sway factor.”
· Evaluating key witnesses and the impression they make upon jurors. Are they likable? Are they perceived as credible? Was their testimony persuasive?
· Testing the range of possible juror verdicts.
· Assessing your case for settlement purposes.
· Determining what jurors want by way of persuasive evidence. During jury research, jurors have the opportunity to provide feedback about what was persuasive versus non-persuasive to them.
There are several ways to conduct pre-trial jury research. Some of them are very costly, upwards of $50,000.00. Others are less expensive and can be conducted even in cases where budget is an issue. We routinely conduct reliable and useful jury research in cases where the budget is as small as $10,000.00 -
$15,000.00. The types of research I will focus on, for purposes of this article, include:
· Mock Trials
· Jury Focus Groups
· Internet Research
· Discussion Groups
Mock trials are obviously the most expensive and time consuming to put on whereas discussion groups are the least expensive and least intrusive of the trial team’s time and resources. As with any research project,the more you invest in the research project, the more likely you are going to simulate accurate results.
Mock trials, or trial simulations as they are sometimes called, are typically done over a 2-3 day period. The format in which the evidence is presented to the jury panel is very similar to that of an actual trial. Evidence is presented to the jury panel through opening and closing statements, witness testimony, and actual and demonstrative evidence.Testimony is shown either through videos of
witnesses’ deposition testimony and/or through actors who portray the witness. Demonstratives which have been developed by the trial team and their consultants are shown and tested before the mock jury.
Mock trials are expensive to put on and time consumingin terms of preparation. Mock jurors are typically paid in the range of $150.00- $300.00/day (depending on the location of the research). In a mock trial,25-35 jurors are recruited. The goal is to have 3 deliberating panels. The costto pay jurors alone can be upwards of $10,000.00 for a 2-day mock trial.Preparing for a mock trial can take the attorneys and consultants severalmonths. There is significant time that must be spent to develop attorney presentationscripts, video testimony, the visual presentation of evidence, and to developand review the questionnaires that will be given to jurors duringthe research process.The biggest mistakeattorneys make when electing to conduct a mock trial is not allowing forthe proper amount of time and/or budget to adequately prepare.
It is the most effective and comprehensive way to test evidenceand jurors’ perceptions of the facts of the case.
Themost effective way to obtain feedback on witnesses.
Mostsimilar to an actual trial setting in terms of “GroupThink” dynamics (i.e.assessing the sway factor between individual case analysis and the groupdeliberation process).
Theeasiest way to “test drive” your case.
The most effective way to test the persuasive value of counsel.
Expense:By far the most cost intensive form of research
Timeconsuming in terms of preparation
There are a variety of ways to conduct jury focusgroups. At Opveon, we often use a hybrid approach. We perform a scaled down version of the mock trial that includesonly attorney presentations that summarize theevidence and limited video testimony. At the conclusion of thepresentations, we have two deliberating groupsand one “roundtable” discussion group.This allows us to testthe evidence in a couple ofdifferent scenarios. We have thebenefit of brainstorming ideas, concepts, attitudes and bias with the jury inan interactive setting (the round table discussion), but it also allows us totest group think dynamics in the deliberation process.
Depending on the scope of the research, the timing ofthe research (is it being used for early case assessment or settlementpurposes, etc.), and the budget of the case, a varying number of focus groupparticipants are recruited. In atypical focus group, we will recruit anywhere from 20-35 participants. The costto recruit focus group participants is usually less expensive becausethe time
requirements are lessintrusive. Focus group participants canbe paid as little as
$100.00 - $250.00/per session, depending on the location of the research. Unlike mock trials that can take 2-3 days, focusgroups can be conducted in as littleas 5- 6 hours.
Aswith any small group research project, focus groups cannot be used to predictactual jury results. However, the same hot button issues and sensibilitiesgenerally arise given the trial team the opportunity to fine-tune theirpresentations before trial.
Moreeconomical than a full-blown mock trial.
An effective way totest themes, storylines, and juror reactions to important pieces of evidence.
An effective way to assess attitudesand perceptions on damages.
Extremelyuseful for early case assessment.
Canbe conducted at any stage of the litigation process.
Notas effective as a mock trial in terms of testing the full range of reactions towitnesses, opening/closing arguments, etc.
Notas effective at testing the persuasive value of counsel
Shorter time frame means moresummaries, less actual evidence.
Conducting internet research is the latest phenomenon tohit the trial consulting industry. Althoughit hasn’t completely replaced telephone surveysand other forms of community attitudesurveys in the jury researchprocess, it certainly has become a popular way oftesting case issues to a larger number of people than you are able to assemblein the small group research process (mock trials, jury focus groups).
As with small group research, when conducting onlineresearch, you can select the exact demographics of the jury panel. Everythingfrom age, gender, income, education, religion, and other characteristics ofeach juror.
The format of the presentation is an onlinebased review wherejurors watch video footage ofthe presentation of evidence by both parties, which can include everything fromopening/closing statements, video testimony, documents/demonstrative evidence, etc.
After reviewing the presentations, jurors are given aseries of questionnaires, very similar to those given during mock trials andjury focus groups. The questionnaires are submitted electronically and receivedby the consulting team who then, in turn, prepares a written report of theresearch to the trial team.
Researchparticipants are easier and cheaper to recruit.
Youhave the ability to recruit 100+ participants vs. 25-35.
Cuttingedge technology: High degree of flexibility and control over the presentationinformation.
Avery cost-effective way to test a wider range of reactions
Lessquality control over the research panel. There is little assurance that Jimmy,who is the 18 year old white male that we recruited, will be the actual oneparticipating. He might have his 65 year old disabled mother do the work forhim.
Nopersonal interaction with jurors.
Limited ability tofollow up with jurors for questions in response to their feedback.
Discussion groups are a very cost effective way toobtain non-biased input and feedback. For this type of research, a group of demographically similarjurors sit down with a trial consultant and members of the trial teamand are given an overview of one aspect of the case or the case in general and then guidedthrough a discussion to gather feedback. These are brainstormingsessions of sorts. They
are not designed to assist the attorney/consultant in putting togetherideal/non- ideal juror profiles, but rather are useful when testing themes,attitudes, or particular elements of a case that are concerning and/orproblematic.
Lots of interactionbetween counsel/consulting team and the jurors
Theleast effective method of jury research with respect to assessing the probablerange of a jury verdict
No ability to testreaction to witnesses and limited ability to test the reaction tographics/demonstratives, trial exhibits, etc.
Limitedability to assess the effectiveness of counsel.
There are several pitfalls to avoid when conducting jury research. They include the following:
Failure to recruit a demographically similar jurypool. You must ensure that your mock jury pool will be similar tothat of the jury pool in the jurisdiction you are trying the case.
Conducting jury research in Tulsa for a case that is going to be triedin the Southern District of New York will produceunreliable results. Working with your consultant and recruiters ahead oftime to put together a demographically sound panel is essentialfor successful research results, even for focus groups that are conducted inthe same jurisdiction the case will be triedin.
Giving uneven/biased presentations. Thishappens when you fail to adequately portray the strengths of the opposingparty’s case and/or when you show bias towards your own client during thepresentation. Jurors are people and people are generally pleasers. If theythink you represent one party over the other that is likely to sway their opiniontowards your client and in turn, produce unreliable results.
Expecting predictive values. Thishappens when the trial team assumes that because the mock jury panel awarded $1M in damages, an actual jury will dothe same thing. Regardless of the type of jury research, there are noguarantees. Rather, research should be used to assess the possible range of jury verdicts.
Underestimating preparation time. Preparingfor and conducting jury research is a time consuming process. Failing
to adequatelyprepare for the research will cause skewed results.
Failure to test the sway factor. It iscritical in jury research that individual versus group-think dynamics are tested.
What should you expect to receive at the end of the juryresearch process? That will depend largely on your case budget and the type ofresearch you are conducting. Most consultants provide some form of a writtenreport summarizing the research findings or at a minimum, facilitate apost-research debriefing with counsel. If a written report is provided, thescope and format of the report may vary from consultant to consultant. However,most all reports will serve as a summary of the information obtained during thejury research process and be in aformat that can be easily utilized during trial preparation. A typical JuryResearch Report will:
Summarize the research process and the goals ofthe research.
Summarizethe results obtained from the research.
Identifyproblem areas in your case.
Identifyand help develop themes that resonate with jurors.
Identifydemographic information for ideal/non-ideal juror profiles. For example, the research may show that hourly wage earners are more receptive to certainevidence than business owners or that females, on average, awarded higherdamages than males.
Jury research is no longer reserved for only those caseswith big budgets. It is becoming a standard trial preparation practice forthose cases that have any significant form of risk or exposure. They are idealfor helping develop case strategy, helping prepare witnesses for trialtestimony, and assessing the case forsettlement. Arm yourself with every bit of knowledge and information that youcan to help win your case.
April J. Ferguson is theChief Executive Officer of Opveon Litigation Services, a litigation support and trial consulting firm based in Tulsa, Oklahoma.
For her clients, April is atrusted partner, a team player, and an invaluable asset to their litigationteams. She works tirelessly with trial teams to tell their client’s story in away that resonates with jurors and creates in them a desire to be an advocate for that clientin the jury deliberation room.
Having worked on largepieces of complex litigation throughout the country, April’s expertise in thetrial consulting arena has brought her an international client base, includingtop tier law firms and celebrities. The trial teams she has had the privilegeof working with have been responsible for securing multi-million-dollarverdicts for their clients as well as helping large corporations obtain defenseverdicts.
April focuses her practiceon theme development, mock trials, jury focus groups,and the use of technology in alitigation environment. Her case experience includes complex commerciallitigation, personal injury, medical malpractice, products liability, energylaw, employment law cases, criminal defense, eminent domain, constructiondisputes, Qui Tam actions, major environmental cases, insurance bad faith,family law, trucking litigation, among others.
April has been involvedin hundreds of jury trialsthroughout the course of her career. Her experience in the courtroom, combinedwith her jury research practice, gives April a unique perspective into thetrial process, which clients find invaluable.