CHARLESTON — The best jury research replicates the actual trial situation as closely as possible. Unfortunately, conducting surveys, focus groups and mock trials in the actual trial venue often has significant downside.
In particular, the bench looks disdainfully on any research effort that could have any affect on the potential jury pool for a trial. Although legitimate jury research firms take every precaution to NOT include any party to the trial, judges are cautionary. Rightfully so.
Good jury research protocols require screening techniques that preclude including individuals who have been currently called to jury duty, legal professionals in the community who may have an interest in the case, parties and families of parties to the legal action and media personnel who may be following the trial issue.
Even when these research protocols are followed, opposing counsel may attempt to position the efforts as “jury tampering”. Nothing could be further from the truth. Legitimate trial consultants work very hard to eliminate any potential bias in the research process. In particular, the participants in any research efforts should not be able to “know” which side the research is being conducted for. Besides following a professional code of conduct, researchers do not want to interject any bias into their trial research in order to prevent false findings.
So, what’s a legitimate jury research professional to do? The usual answer is to find an appropriate alternative, or “surrogate”, venue for research efforts. And, what is the criteria for determining a surrogate venue?
First, geography should be considered. That is, research efforts are often better if conducted in contiguous areas to the actual trial venue. Conducting research in the same state as the actual trial is usually a minimum geographic consideration. The reason for this is fairly obvious–work to conduct the research effort as similar to the actual trial experience as possible. Geographic proximity usually has the advantages of comparable exposure to elements of the case and the same laws/legal system are in place.
Secondly, demographic and psychographic variables should be replicated as closely as possible. This criteria has two separate goals. One, the typical jury panel for the actual trial venue should be replicated for focus group and mock trial exercises in any alternative venue. And, populations, which are similar, provide better research insight for the actual trial venue.
Third, community characteristics must be considered. Similar exposure to key themes and elements of the case should be replicated in the surrogate venue. For example, if the case involves a mining company, the research should be conducted in a community where mining takes place and the litigants have a similar profile. If it isn’t possible to find an appropriate venue where awareness and opinions of the litigants are similar, the industry profile should be comparable at a minimum.
Next, similar media exposure should be considered. While most trials do not receive much attention from the media, issues important to the trial are usually covered by local newspapers and television news programs.
The important point is that litigators should work closely with a trial consultant to determine the key variables that should be prioritized when considering surrogate venues. Again, the key to effective research is to limit the impact of variables to the trial in order to focus on the themes and messages that drive a successful trial strategy.
Samples is president of RRS Research, a communications and opinion research agency headquartered in Charleston. He has extensive crises communications, counseling and litigation research experience and has worked for clients throughout the nation during the last 25 years. He can be contacted at 304.343.7655.