Litigation Strategy

Jury Research: Can You Afford Not To Do It?

You think you have a great case. Your client is convinced. Your staff, your friends, and sometimes even your spouse nod their heads when you talk about the case. What more information could a trial attorney want before gambling hundreds of thousands of dollars or many millions on how a jury will decide the case? The answer: a lot more information.

It does not make sense to bring a large case to trial without conducting some jury research. Attorneys are very good at predicting what arguments will be made and what evidence will be presented at trial, but they have no special training in—and often no special insight into—how a jury will perceive the arguments and evidence. Jury research provides critical insight into how a jury will react to the key facts of the case, and guidance on how to most persuasively and clearly present evidence. It may also provide valuable data for jury selection. In addition, a jury study—which the client should always attend—often sends a loud message to a recalcitrant client.

Deciding among the multitude of choices for jury research will depend on the needs of the case and on what the budget allows:

  • Mock trials and focus groups allow trial teams to test the key issues and facts of their case before a group of mock jurors, and obtain reactions to those issues and facts.
  • Specialized studies can be designed so trial counsel can see how mock jurors respond to certain testimony, to damage presentations, or to the overall case.
  • Specialized studies can also be designed to compare and contrast two or more distinct strategic approaches to liability or damages and to develop a quantitatively based set of juror profiles.
  • Telephone attitude surveys can be designed to find out how mock jurors in one or more venues view key issues, which is useful in assessing whether a change of venue motion is appropriate.

In complex, high-stakes cases, most clients cannot afford to go into trial blind. It is highly likely that the opposition has conducted some form of jury research or consultation, thus putting your client at a disadvantage. Even in a moderate-size case, or in a smaller case with significant ramifications, the same logic applies. At the end of every trial, one side is generally very surprised by the verdict. With proper jury research, you can dramatically reduce the chances of being one of those surprised people.

On using a jury consultant to conduct jury research, see California Trial Practice: Civil Procedure During Trial §8.53 (3d ed Cal CEB 1995) and Effective Direct & Cross-Examination  §10.16 (Cal CEB 1986).

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