Many attorneys have a perception that jury trials are dangerous and unpredictable; that jurors cannot be trusted to properly sort through the facts and evidence, understand complex legal issues and arguments, or take the process seriously. While it can be true that often jurors make unexpected decisions in trial, this has more to do with broad differences in how laypeople think about cases versus how attorneys view those same cases. These differences can be understood and accounted for; they are not unpredictable or unknowable but require a shift in thinking about how cases are decided.
Jury research allows attorneys to learn how jurors actually make legal decisions, interpret evidence, and decide cases, and that knowledge enables them to strengthen their cases to succeed at trial. Solid, well-designed, well-conducted jury research demystifies the process by which jurors reach verdicts, allows attorneys to properly position their cases, and gives insight into what the real value of a case may be at trial.
Most attorneys are broadly familiar with the concept of jury research. Even if they have never conducted a jury research project themselves, most know of a colleague who has run a mock trial or a focus group on one of their cases. However, deciding which cases are most appropriate for jury research is not always clear, and deciding on exactly what type of jury research to use can be confusing. In some cases, doing research improperly and getting misleading results can be worse than not doing jury research at all.
Commonly, we find that attorneys can greatly improve the quality of information obtained from their research projects by more carefully considering the timing of their research, identifying their goals, and ensuring that their research projects are specifically designed to obtain information that is accurate, helpful, and appropriate.
Jury and judicial research can be time intensive and expensive, yet there are projects that can be done for as little as few thousand dollars that can vastly improve the efficiency of your litigation process and can save significantly more than the cost of the research.
This article will help address some misconceptions about jury research and help attorneys and their clients determine what the best research options are for them at different points in the litigation process. It will discuss the different types of research, the multiple ways attorneys can use research, and what they should be looking for when putting together a research project. Additionally, we will cover some general rules for research that will help improve the quality of any type of jury research they conduct. This article is designed to help you improve the quality of information obtained in your projects, increase the value of your jury research, and help you identify additional ways to utilize jury research effectively in your practice. Whatever type of research you do, and whenever you decide to do it, the goals should always be the same: to better understand, position, and present cases to reduce the unpredictability of case outcome and to make better decisions about the direction of the case.
To determine which cases can benefit from research, and to decide what research is most appropriate, it is important to first determine your goals. For example:
Do you have a critical witness or witnesses you need to test?
Do you need to better understand how jurors will assign comparative fault?
Do you need to better understand how jurors will assign damages?
Do you need to develop a central theme or approach to the case?
Do you need to decide between two different potential approaches to the case?
Entering a research project with clear goals is critical for successful research. You should know what the research is aiming to specifically accomplish before beginning the project but should also be prepared to change, add to, and refine those goals as you move forward and learn new information. While many attorneys and clients focus on mock trial deliberations and verdict results as the point of a jury research project, they often overlook the significant learning that can and should be accomplished by preparing for the research. Often, the process of preparing for the research project is as valuable as the results of the project by reviewing deposition testimony, developing a PowerPoint, having discussions with colleagues and clients about case themes, and the effort of streamlining the evidence into a one or two hour presentation.
While broad goals such as “learn how jurors think about the case” or “see how much jurors award in damages” can occasionally be appropriate, they can be significantly improved by digging deeper and targeting more specific goals. For example, consider an exercise: if you had to pick the three most significant pieces of evidence or testimony in your case, what would they be? Will jurors think those three are the most important or will it be three completely different ones? What are the specific pieces of evidence or testimony that drive jurors toward awarding damages or assigning higher percentages of fault?
As an example, an attorney who conducted a focus group specifically needed to know how jurors would respond to Defenses that criticized the Plaintiff’s behavior and pre-existing health conditions. They wanted to know if jurors would believe that the Plaintiff’s unhealthy behavior is what caused her injuries and not her medical care, and how aggressive they could be in making that argument. After designing and conducting a focus group around this core issue, they learned that jurors interpreted any attacks on the Plaintiff as coming from the Defendant medical professional themselves, which angered them and made them believe that the Defendant was not a caring doctor, increasing their awarded damages. As a result, we were able to change course and devise a new strategy and develop new themes.
Research should be used to give you meaningful data, not just data that is simply interesting but not actionable or helpful. Research should give a deep and specific understanding of your case and what you need to do to better position your case for settlement or trial.
Choosing the Right Type of Research
It is important to understand the difference between quantitative and qualitative research. Quantitative research is done with large numbers of participants in an effort to obtain statistically significant results. This type of research is most often utilized in survey work, and tends to focus on high-level, broad issues or one single, specific research issue or question. It is based on data, and it utilizes mathematical formulas to try and achieve a predictive understanding of verdict outcomes, issue priorities, or jury characteristics. Most focus group and mock trial research should not be designed or viewed as quantitative research. It is difficult to obtain statistically significant results from groups of 24 or even 60 jurors that are generalizable to an entire jury pool, and the trial itself will certainly have innumerable variables that could not be present in the research.
Qualitative research, in contrast, is usually done in smaller groups and is more focused on ideas, words, and concepts. This type of research is most typically seen in focus group and mock trial formats and involves a deeper exploration of key issues, theme or witness testing, story development, and holding involved discussions with research participants about their reactions to presentations, evidence, and witness testimony.
More simply put, quantitative research tells you what juror reactions are to the case and qualitative research tells you why they are reacting the way they are and how to possibly change those reactions. Both types of research are useful, but too often, most jury research is seen as a quantitative measurement of juror reactions to a static case rather than a qualitative development tool to refine and strengthen the case.
Timing Your Research
Historically, Defense attorneys tend to wait until right before mediation or trial, in the hopes of obtaining information that will help them settle the case or aid in developing trial strategy. However, depending on juror feedback, it is often too late to revise testimony, find an expert witness to testify on an essential issue discovered in the jury research, or fully develop a new animation or complex graphic to address a significant area of juror confusion.
On the Plaintiff side, the Plaintiff’s Bar has generally been more savvy about employing jury research early to help develop their cases throughout the discovery and deposition process. As a result, they are often able to enter mediations and settlement discussions with stronger, more fully developed positions, and are able to start collecting information in discovery that directly supports their positions in settlement and trial.
Regardless of side, conducting research earlier can often be more efficient and cost-effective as it allows you to identify key case issues earlier and to target your discovery to address those issues. Conducting research close to trial is useful, but should be designed to refine opening statements, polish witness testimony and order, and develop tutorials or graphics to enhance juror comprehension of complex case issues.
While most litigators and clients are familiar with mock trials and focus groups, the following is a list of a variety of different research projects that can be employed at various stages of the litigation process.
Pre-Discovery and Early Discovery: Goals
The early litigation process can be one of the best times to conduct research, which is surprising to many attorneys. Research conducted early can help to inform the discovery process, better position the case for mediation or settlement, and provide insight into which case themes, stories, and theories are worth pursuing and developing.
These are some of the most common research goals we set for pre-discovery and early discovery research:
- Case Analysis and Risk Assessment: While all attorneys engage in this to some degree in every case, analyzing specific variables that contribute to the strengths and weaknesses of a case is important for correctly identifying the risk level of extended discovery and taking a case to trial. Research of this type goes beyond just looking at the legal and factual aspects of a case, but also considers psychological and extra-legal variables such as the jury composition in a given venue, political and cultural factors that may impact the case, personality of witnesses and attorneys, and juror and judge comprehension of complex case issues. By systematically studying and analyzing each of these factors (and many others) individually, you can gain a better understanding of the real risks and strengths of your case.
- Key Issue Identification: Categorizing and prioritizing which case issues a judge or jurors think are important or unimportant is enormously valuable in determining what lines of discovery to pursue and what questions to ask. Being able to narrow your focus to these critical issues allows you to conduct more targeted and efficient discovery and begin the early development of your case’s best story and themes.
- Community Attitude Analysis: Knowing how a given venue will view your overall case can be valuable in a variety of scenarios. If you have the option of filing in multiple venues, conducting research with this goal in mind can help you decide the best locale to file the case. This type of research is recommended when you are trying a case in an unfamiliar venue. It is also useful in gauging the potential impact of recent political or newsworthy events related to your case on your jury pool and determining if a change of venue motion needs to be filed. For example, understanding community attitudes for a construction defect case in Miami would be important following the Surfside condominium collapse.
Pre-Discovery and Early Discovery: Research Projects
There are multiple research projects specifically designed to be performed early, targeting specific early litigation goals, that are both inexpensive and helpful in positioning the case in discovery.
At this point in the process, research services tend to be quantitative and focus on analytics and survey research. This type of research tends to be inexpensive, can be quickly deployed, and is best for gaining fast insight into how jurors broadly view a case’s issues.
- Case Variable Analysis: We have observed that there are eighteen key variables that determine the trajectory and outcome of a litigated case that are often not fully considered when evaluating risk and case value. In order to supplement and improve the ability of counsel and clients to analyze case issues and to evaluate their attendant risk at various stages of the litigation process, the case variable analysis system allows counsel to identify, organize, and prioritize these factors. This type of analysis helps clients to manage discovery, settlement, and trial preparation.
- Case Statement Survey Research: In this type of online survey research, a large sample of roughly 100 jury-qualified participants are presented with a neutral statement of the case, laying out the claims and brief descriptions of each side’s positions in the case. Jurors then answer a series of survey questions that gauge their reactions and probe into what information they feel they would want, need, and expect each side to present given what they know about the case. For only a few thousand dollars, this type of research gives insight into how jurors view the general facts of the case and the overall risk level based on the fact pattern.
- Case Issue Survey Research: In this type of survey research, roughly 100 jury-qualified participants answer a series of questions about the anticipated key issues in a case to determine which potential issues resonate most with jurors and which appear to be less important to factfinders. This type of research both highlights the issues that need to be focused on and can also illuminate sources of potential juror confusion and misunderstanding early in the process. This research is similar in cost to Case Statement Survey Research and is best used when specific key issues of a case have been identified and attorneys want to learn more about how jurors view those individual issues.
- Community Attitude Survey Research: A Community Attitude Survey is a representative survey designed to determine if there are significant biases present in a venue that would prevent a party from obtaining a fair trial. Participants in the survey are jury-qualified residents of the venue(s) being examined. Respondents are asked a series of questions designed to poll the community to discern their attitudes toward key issues that could affect verdict preference or indicate a bias in favor of either side. These questions cover a variety of issues relevant to the case. The size of the community sample allows us to understand, with some certainty, which general facts and attitudes are driving the community’s baseline perceptions in the case and if there is a bias issue within the venue.
Mid-Discovery, Late-Discovery, and Post-Discovery: Goals
Once discovery has begun in earnest and attorneys have a better sense of the basic facts, research can be designed to accomplish more specific and targeted goals. While the results from research conducted in this period can still serve to inform discovery as it progresses, the goals in this time period tend to be more focused on beginning to fully shape a case’s story and learning how jurors respond to more specific arguments, themes, and pieces of evidence.
These are some of the most common goals we set for mid-to-late-discovery and post-discovery research:
- Story and Theme Testing: With a substantial amount of the evidence collected, at this point in time you can begin earnestly testing fuller versions of your case narratives. The feedback obtained from this type of testing helps refine a case’s overall narrative structure and themes, as well as illuminating any missing information needed to make the story complete.
- Issue Drill-Downs: If there are one or two particular issues that are excessively complex, absolutely critical to the case, and/or generally of concern to the trial team, conducting a research project specifically exploring how jurors view them can guide the remainder of discovery and illustrate how to address these key topics.
- A/B Argument Testing: In many cases, attorneys are often torn between two or more distinct, separate approaches in presenting the overall case or addressing a particular issue or piece of evidence. Conducting a research project designed to test each possible approach and compare reactions to those approaches can show which is the most viable.
- General Witness Evaluations: Determining how jurors react to witness testimony, either before or after a deposition has been given, is tremendously useful in determining which, if any, of your witnesses need additional witness preparation. It also can help highlight which of your witnesses jurors will consider to be the most important and most credible, and helps give insight into how you should try to order your witnesses for trial and how much time to spend on each. Additionally, if corporate or PMQ witnesses are testifying in a single or multiple cases, this can help counsel better understand what jurors need to hear from company representatives.
- Individual-Focused Witness Testing: For major and critical witnesses, a research project that focuses only on a single witness can be conducted. In these projects, jurors view a mock direct and cross examination of a single witness, done either in-person, online, or videotaped, and give real-time feedback to how the witness is performing. This type of project can help guide direct examination and techniques to maintain consistency and credibility during cross-examination.
- A Comprehensive Test of the Case: At this point in time, attorneys can test juror reactions to a comprehensive presentation of the case, including evidence, witness testimony, and opening statements. Mock trials can be conducted by having Plaintiff/Defense/rebuttal presentations, but can also include sections for voir dire, opening statements, direct and cross-examination of witnesses, and closing arguments. In mock trials, it is important to measure juror responses at each stage as the goal of the project is to better understand how jurors assemble their verdict, rather than just recording their decision.
- Demonstrative Exhibit Testing: Testing graphics, animations, models, and demonstrations of complex case issues provides important feedback for experts and attorneys to aid juror comprehension of evidence.
- Gauging Opening Statement: As trial approaches, many attorneys find it useful to get direct feedback on the effectiveness of their opening statements and closing arguments. Finding out how jurors respond to openings and closings, including testing what they most remember and retain from each, allows the attorney to fine-tune and tweak their presentations to give the most effective presentations possible.
- Jury Selection Testing: Whether combined with a mock trial or conducted as a separate project, voir dire testing helps to refine the questions and the approaches to best identify jurors for cause and peremptory challenges, to refine strike strategies and jury profiles for the final selection process.
Mid-Discovery, Late-Discovery, and Post-Discovery: Research Projects
Research in this time period tends to focus on qualitative projects, focusing on in-depth surveys and focus groups. Focus group research can be conducted fully in-person, fully online, or in a hybrid format that allows some to be physically present while others view the proceedings remotely. Both online and in-person formats offer advantages and limitations. The choice of format should take into account the nature of the cases, how they have to be presented, budget, timing, geography, and the convenience of those attending the research.
- Focus Group Research: Compared to mock trials, focus groups are less formal and more flexible. Focus groups set aside substantial time for juror discussion in order to discern how jurors are reacting to individual arguments, pieces of evidence, and witnesses at different points during the presentations, instead of waiting until the end. This allows you to capture how jurors are responding to key evidence at the time it is presented, providing a window into how jurors assemble their verdict path. Focus groups are flexible and can be designed in a variety of formats. Some focus groups can be designed to present Plaintiff or Defense positions on a series of issues, some can be designed to have jurors “think-tank” specific issues to come up with solutions for the trial team, and some can be designed to determine the effectiveness of witnesses or demonstrative exhibits.
- Individual Interview Research: When time or scheduling constraints prevent a trial team from attending a full-day research project, individual interview research can provide the insights and recommendations from a focus group on a more relaxed schedule. Originally developed for use in market research product testing, Individual interview research Projects let you test complete case presentations to a panel of mock jurors in your desired venue without having to travel or commit a full day or more to participating in a research exercise. In this type of research, presentation packages are put together and sent to individual research participants. The jurors are given a deadline by which to have viewed each side’s presentation and complete an online questionnaire that probes their reactions and responses to the given information. Once their questionnaire is completed, they then schedule a time to engage in a personal, one-on-one recorded interview. A targeted discussion with each juror is held to identify key strengths and weaknesses of each side’s case, highlight areas of confusion or concern, and learn what that juror needs to see or hear to ultimately find in your favor. This same method can be used in preparing for bench trials, arbitrations, Markman or other important hearings, as well as mediations. In these instances, the recruited participants are retired judges who are sent packets of information to review. Interviews are then conducted to craft legal issues and persuasive arguments more effectively.
- Case Surveyor Research: In this long-form survey, extended presentations of each side’s case, including evidence, attorney presentations in written or recorded form, and witness clips are sent to panels of mock jurors to view by a prescribed time. Similar to the Individual Interview Research, this process replaces individual detailed interviews with a comprehensive survey that measures jurors’ reaction to the case throughout their review of the material. These survey results are analyzed and a report is created that details the findings and provides recommendations on improving the case.
- Mock Trial Research: More formal than focus groups, a mock trial essentially serves as a “dry run” of the case and can feature opening statements, closing arguments, and a fuller presentation of evidence and witness testimony. Additionally, interim measurements are taken after each presentation to gauge how jurors are responding to the overall case presentation, graphics, witnesses, and key case issues, and show what arguments and evidence are swaying jurors towards favoring one side over the other. This type of research is what attorneys are most familiar with when they think about “jury research,” and most closely resembles the structure of a traditional trial.
- Witness Preparation Focus Groups: These focus groups center specifically on an individual witness and help key witnesses prepare for trial. In research like this, a group of jurors observes the direct and cross examination of a witness, with interim measurements being taken throughout. At various points, jurors stop and provide feedback on their impressions of the witness and their testimony, providing insight into how jurors are reacting in real-time to the information the witness is presenting. The information gleaned from this project can be used in final witness preparation sessions to ensure the best possible testimony at trial.
- Shadow Juries: A unique research project designed to be used in conjunction with the actual trial itself, Shadow juries allow attorneys to obtain daily feedback on the trial from a group of recruited respondents who are demographically similar to the actual jurors who will be seated on the case. These “shadow jurors” either attend the trial in person as observers or, if the case is televised or livestreamed, view the proceedings remotely, and then at the end of each trial day participate in interviews and give feedback about how the evidence is affecting their decision-making process. This research yields valuable day-to-day information on the prevailing strengths and weaknesses of the case, as well as outstanding questions, misconceptions or misunderstandings jurors may be forming during trial. Although Shadow juries are not intended to be predictive of verdict outcome, this juror feedback can be useful for trial counsel to respond and make adjustments to their presentation of evidence.
General Rules for All Research
No matter what type of research you ultimately decide to conduct, and no matter what your goals for that research are, there are a number of principles to keep in mind in designing, conducting, interpreting, and applying the results of your research projects.
- Learning WHY Jurors Make Decisions Is More Important Than the Decision Itself
It is important to look at the value of jury research holistically. Often, attorneys and clients are focused simply on the end product – the verdict. While this is important, research should be viewed as a method to refine and improve a case, whether settling or taking it to trial. Taking interim measurements and watching how and why jurors shape and change their opinions over the course of a research project is more useful information than just their deliberations and ultimate verdict. Make sure your research includes ways to gauge how jurors are responding to information throughout the research project and not just at the very end.
The process and procedure of putting together the research is almost always just as, and in some cases more, valuable than the results themselves. Having to examine your own evidence, distill your case into key arguments and demonstratives, and developing a story and theme to be presented to jurors early is a tremendously useful exercise.
- “Winning” The Research Is Less Helpful Than Learning How You Can Lose
The old adage is, “There are a few ways to win a trial, but a thousand ways to lose.” The primary goal of jury research is to find out the different ways that jurors will interpret the evidence and extra-legal issues in constructing their own narrative of the case to justify a verdict that makes the most cognitive and emotional sense to them. It is much more valuable to lose the research against an overly strong opposing case than to win against a weak one. If done right, losing is learning, and it is more important to find out all the ways you can lose the case. You should be willing to test any and all factors that could be seen as potential vulnerabilities, even if it increases the chances of a research jury finding against you. There is a natural bias that blinds attorneys to the inherent weaknesses in their cases. After all, they have spent months if not years being an advocate for their client. It takes real effort to consider all or most of the ways that jurors may find against you. It is important to consider how jurors will use their experience, beliefs, and even misconceptions to interpret the evidence and possibly arrive at an adverse verdict.
It is also important to prepare your clients for the research so they fully understand the process and do not feel that you are maligning or undermining them when you present a strong opposing case, which may reflect negatively on them. Having an unfavorable outcome in a research project is often, in the grand scheme of things, more valuable than “winning” a mock trial or focus group because you are able to learn how and why you are losing a case and take steps to address those problems. Jury research is about reducing the unpredictability of trial. The better you are at understanding even minor case vulnerabilities and confusion, the more you reduce the uncertainty of trial.
- Put Equal Time, if not More Effort, into Preparing the Other Side’s Best Case
To that end, spending real time and effort on thinking through the other side’s best arguments is not only enormously valuable for understanding the strengths and weaknesses of your own case, but is also critical for obtaining a true test and obtaining the best research results. This goes beyond just copying what opposing counsel has written in their complaint, it involves considering all the arguments they will be making to appeal to jurors in trial. Although challenging, this entails stepping outside your comfort zone and putting yourself in the shoes of your opponents. This means thinking like they do and even making arguments that you may deem unfair or that make your client uncomfortable. Do not be dismissive of their evidence, arguments, or legal theories you believe the judge will rule as inadmissible. Putting on the strongest opposing case possible allows you to pinpoint the specific weaknesses in your case, while also identifying what portions of the other side’s case are vulnerable. It is important to not just test potential evidence and arguments from the other side, but interpretations of those issues that jurors may come up with on their own based on their personal experience and attitudes.
- Damage Figures Are Not Always Predictive
Attorneys and clients are often shocked by the awards made in research projects, but the damages numbers you might see in a focus group or a mock trial are not designed to be predictive of exactly what a jury would award in trial. In any research project, it is more valuable to look at jurors’ desire to award damages: what evidence, arguments, testimony, and perceived attitudes of the witnesses and attorneys affect their willingness to award damages. This distinction is important; because trial has many additional variables that cannot be accounted for in the research, the actual numbers being awarded should be considered indicative rather than predictive of what will occur at trial.
- Make Sure You Are Using Representative, Jury-Qualified Participants
For all research, it is critical to ensure that your participants are representative of your venue, jury-qualified, focused, and able to give candid feedback. While it can be tempting to gather friends, family members, co-workers, or engage cheaper social media or professional respondents to serve as research participants, these individuals may not feel comfortable criticizing you or your case or may not be as committed to giving you the feedback you need. Having engaged, true third-party respondents that are representative of your jury pool and have no connection to you or your case allows you to obtain the best quality of information from your research projects.
There are many reasons to conduct jury research, and many ways to accomplish your goals. The goals and research options above are by no means exhaustive – every case is unique, and the goals will change from project to project. What is most important is that, before beginning research, you have identified whatever your goals are, determined the best time in your own personal case timeline to perform the research, and have designed your research specifically to accomplish those goals.