Practice Tip - The Plaintiff's Perspective: Jury Research Can Win Your Case

Mar 20, 2012

Practice Tip

The Plaintiff’s Perspective: Jury Research Can Win Your Case

By Timothy S. Tomasik

TIP

Attorneys risk an adverse verdict if they become wedded to evidence or arguments that jury research demonstrates should be adjusted or abandoned entirely. Trial lawyers who obtain big verdicts in complex litigation are seldom surprised when the foreperson or judge publishes the verdict after many hours of deliberation. In the vast majority of these cases, the verdict confirms what hours of jury research and scientific analysis has demonstrated. While it is true that successful trial lawyers possess the inherent ability to understand how jurors make decisions about the weight of the evidence and credibility of the witnesses in any case, even the most seasoned trial lawyers scientifically test and learn what is required on a case-by-case basis to favorably persuade jurors. Quality pretrial research allows trial lawyers to understand how jurors construct decisions about the evidence based upon their preexisting biases, convictions, values, and experiences. Successful trial lawyers have become experts in developing a complete understanding of how to create a compelling factual jury presentation that markedly increases the likelihood of a substantial verdict.

Some trial lawyers believe that they can affect juror thinking solely through the force of personality and strategic decisions during trial. In doing so, they fail to effectively learn what evidence will be the most persuasive to the decision makers—and why. For success at trial, during preparation lawyers must be ready to abandon theories, themes, and components of evidence to which they may be wedded in order to make their case more palatable to a jury.

Data accumulated through jury research provides a critical tool in understanding how a jury is most likely to perceive the evidence you have marshaled during discovery and the arguments you craft. Today, jury research can determine how trial strategy is developed and teaches us how to present our most formidable case to a jury.

Three research techniques most commonly are applied to collect and analyze data relevant to trial case preparation: scientific surveys, focus groups, and mock juries. Implementing them properly and using jury research will substantially increase a trial lawyer’s likelihood of success at trial.

Surveys

In high-profile cases, venue surveys can be extremely helpful to measure public awar eness and perceptions of the facts underlying the litigation. Identifying the preexisting beliefs of the jury pool allows a trial lawyer to view his or her case from the vantage point of the local juror. A number of different techniques can be used to conduct surveys. These surveys require the expertise of specialized consultants who possess the training and the experience in conducting surveys to ensure that the scientific data obtained is reliable,and more importantly, can be applied.

Surveys that are conducted telephonically in the same venue as the trial are the most reliable and provide assurances that the cross-section or “sampling” is drawn from a typical jury pool within the jurisdiction. A critical factor for accuracy is ensuring that the sample size is large enough to yield statistically reliable results. Depending on the jurisdiction, the type of case being analyzed, and the population density of the particular venue, the sample size may vary from 100 to over 3,000 participants. Established research centers in major cities maintain databases of over 1,000,000 potential participants to draw from.

Surveys must not only test and accumulate data pertaining to preconceived notions held by the group but should also strive to examine and identify preexisting beliefs the venue has about the judicial system itself, and it process, in addition to the subject matterof the litigation.

Listed below are samples of questions that elicit attitudes toward lawsuits and institutions:
Please tell me how strongly you either agree or disagree with the statement:

1. There are far too many frivolous lawsuits today.
2. People are too quick to blame others for things that happen to them.
3. Most corporations are more interested in making profits than in making safe products.
4. The federal government is more interested in protecting corporations than in protecting individuals.
5. Juries are awarding far too large amounts of money in civil cases these days.
6. We should have more laws to regulate corporate behavior.
7. Most people are pretty much in control of what happens to them.
8. Juries do a good job of determining the outcomes of lawsuits and assessing damages in civil trial.
9. Most people who sue others in court have legitimate grievances.
10. Large corporations generally treat their employees well.
11. The ability of citizens to bring lawsuits has made this a safer society
12. The survey should also inquire into the specific facts of your case. For example:
13. How do you view the FAA’s responsibility for the ComAir crash in Lexington?
14. Have you ever read books about September 11th?
15. Have you read the 9/11 Commission Report?
16. Do you believe the 9/11 Commission Report is complete and credible?
17. Is air travel relatively safe today?
18. Airport security has improved since the September 11, 2001, hijackings.
19. I feel safer now than I did nine years ago.
20. Could anyone have predicted something as bad as September 11, 2001?
21. Do you believe pilots today are properly trained and qualified

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