What is your Jury Research Telling You?

by Michael Boucher

Trial research has many elements; the most common is the “Mock Trial”.  Other studies include focus groups, venue analysis, attitudinal surveys, and shadow juries.  There are also many other study types and please note that I did not include voir dire.  Consulting during voir dire is an application of the trial research and not a study itself.  The focus here will be on mock trials.   

Mock trials are generally one or two day studies that include attorney statements and arguments, proffer of evidence, live, video and surrogate witness testimony and presentation of graphics and evidence.  A well designed study will utilize observational and more importantly quantifiable data analysis.  While it is my opinion that quantifiable data is the most important, what is often times overlooked is the gathering mechanism.  I have been involved in trial research as a Presentation Consultant as well as having designed and conducted the studies myself.  The most glaring error I see is the use of close ended questions to gather quantifiable data or gathering no data at all.  One of the many objectives of a mock trial is to extract the motivations and thought process of the individual jurors and then one analyzes how that plays into the jury’s verdict.  By utilizing open ended questionnaires the study will provide valuable insight into jurors’ understanding or lack thereof, positive and negative influences in the case, insight into the thought process as well as the ability to adopt persuasive language from the jurors.

When looking at observational analysis it must be understood that an individual’s actions, advocacy and comments are tempered when deliberating in a group dynamic.  It is much like two friends having a conversation in an elevator and when someone new gets on, the conversation changes or stops all together.  Therefore if a mock trial is based on observations only the results cannot be relied upon.  It is for that reason the study must independently vet the individuals’ actions to understand their impact on the group.  This is not to say that there is no value in observational analysis, only that it is not wise to rely solely on that one aspect.    

The best way to illustrate the impact of allowing jurors to freely express their thoughts, impressions and motivations is to look at case studies. 

The first example is a complex product liability case involving the failure of a component in a piece of machinery.  This machinery was part of a production line and the plaintiff’s claim was for lost profits, damages to the product on the line and the physical damage to the production line itself.  After the plaintiff’s attorney made an opening statement we administered an open ended written questionnaire with several questions.  I have taken some excerpts from one of the questions and listed them below.

When surrogate jurors were asked to briefly explain what the plaintiff’s case was about we observed to following individual responses.

“I didn’t get the process that the plaintiff’s attorney was talking about.”

“I didn’t get it.”

“No clue what he was talking about.”

“Huh?”

What is observed is a critical number of responses indicating a lack of understanding.  Further analysis was done and we learned that the plaintiff was too complex and technical in outlining the claims in his case.  Moreover, he used limited visual aids and relied heavily on verbal communication.  The jurors did not understand the role that the single component played and how this one piece could cause tens of millions of dollars in damage.  The primary take away for the plaintiff was to better illustrate the production line, where the failed component was in the process and ultimately how the failure caused such sever damages.  In this case we designed several demonstrative aids and developed the theme of, “a chain is only as good as its weakest link”.  We then retested the case with a new jury pool and observed the following responses to the same question.

“That one piece caused a lot of problems, and damage.”

“That the faulty piece caused the plaintiff to lose millions and it also broke other parts of the line.”

“The plaintiff thought that the component would work right and it didn’t which caused the damages.”

“That every part needs to work correctly or the whole thing goes down.”

I use these excerpts from these studies to illustrate that the proper mechanism for obtaining information not only identified a weakness of the plaintiff’s case but also the remedy.  If we relied on close ended questionnaires or observation analysis only, we would have missed valuable insight and details.  When utilizing open ended questionnaires in a study the responses can tell a great deal with few words.  Listed below are some random experts from some of our studies.  Regardless of the question, the issues are essentially self evident.

“The plaintiff told a good story and I feel for him.”
[identification with plaintiff and sympathy]

“The plaintiff relied on the broker for advice and he misled him.”
[reliance and distrust of defendant]

 “There is something I don’t trust about him.”
[distrust and lack credibility]

“He doesn’t seem to really believe what he is saying.”
[distrust and transparency]

“He is lying.”
[distrust and anger]

The implementation of proper data gathering in studies can reveal the most obscure rationale as well as bias.  In one study we did, there was a wealthy individual who did not carry health insurance; rather she opted to pay for her medical services on an as need basis.  One issue in the case was that a neurological test was prescribed by what may appear to be an unusual practitioner, her OB/GYN.  While it may appear unusual, the reality it is that a women and her OB/GYN have the strongest patient/doctor relationship there is.  While many of the jurors understood and accepted that, one did not.  She responded to a question with the following response.

“I know why she when to her OB/GYN. Because she needed a referral because of her insurance!”

This raised a flag to us as to why she should we take such a position when it was presented to her that this had nothing to do with insurance.  When we further explored this juror, we learned that she has had a bad history of getting treatment under her health insurance plans.  Over time she had the need to see specialists and to get rather costly tests done.  She got caught up in the bureaucracy of health insurance and was running from doctor to doctor to get the proper authorization the insurance company required.  This woman had a bias towards health insurance companies to the point where it literally clouded her processing of information and ultimately her decision.  We identified a potentially lethal bias and suggested that issues with health insurance be part of the voir dire questioning.

This is a small sample of what proper data gathering mechanisms can yield.  Another way to look at it is in the absences of a proper approach or mechanism.  If these studies had relied solely on observations we may have identified issues.  But in all likelihood we would not have gotten the details of the issues, perhaps only that one was present.  Moreover, if we used yes/no or chose one of the five answer types of questionnaires, what would we have learned?  Only what we provided to the jurors as options.

This is the first part of a three part series that will focus on two areas of trial preparation; trial research and demonstratives aids and how these two play out in trial.  My goal is to take these two areas and bring them to culmination at trial and illustrate the need for integration of work product along the litigation timeline.  The choices made in these two areas will determine the strength and value of a case.