One of the issues that I confront on a regular basis is accusations that our jury research is biased. That is, either plaintiff counsel or defense counsel claims that our research has a particular agenda. They sometimes claim our agenda reflects our client's position in a particular case. My response ... huh?
By definition, jury research MUST be non-biased. The reasons are multiple, including:
* we, and our clients, could be accused of jury tampering. Why would we risk that?
* if we wanted to actually influence the jury pool wouldn't we use communication efforts that potentially impact more than the few people we include in mock trial and survey research?
* why do we utilize surrogate venues so often? Isn't it because we don't want to risk creating any problems with the court in the actual trial venue?
* in an attempt to prevent including the wrong research participants we use detailed screening criteria that eliminates individuals who are currently called to jury duty, are part of any lawsuit, who work in the legal profession, etc.
* most importantly, we do not LEARN as much for our clients if we create a research scenario that influences mock jurors or survey participants to our client's position in a trial. We can actually learn more by losing a research exercise than by winning one.
* lastly, we apply a "litmus test" to our research instruments. That is, if the court or other party reviews our questionnaire or focus group discussion guide, they should be able to view it as totally impartial ... unbiased. In fact, the litmus test is trying to identify the sponsor of the research by reading the instrument. A good instrument is one that could work well for either side in the case.
Following these research concepts is essential to providing our clients with the best research we can offer. Yes, we often have to ask our client's to "back off" from their positions in order to provide them with helpful research findings.
After all, litigators are trained to be advocates for their clients. However, jury consultants are trained to be independent and unbiased. We are trained to create hypotheses that can be tested in an unbiased manner as opposed to confirming legal claims.
Therefore, litigators should work with trial consultants who are not so quick to agree and confirm their themes and messages. Rather, look for the jury consultant who challenges your thinking and would rather test a worst case scenario than provide false positives. False positives from jury research may make litigators feel better about their case and help them gain confidence with their clients, but is ultimately not helpful to the trial effort.
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.