ALL THINGS JURY: Predicting monetary awards

In past columns I have stated that the most difficult -- and least effective -- use of jury research is trying to determine potential monetary damages.

Let's examine why this is so. First, however, let's consider the relative value of various jury research goals in order to better understand the difficulty of predicting monetary awards.

Assessing Case Themes: This is the absolute core value of jury research. The basic themes and messages of most lawsuits are easily told in a chronological timeline. Jurors, and mock jurors, can readily relate to a well-told story. Themes involving disputes are something to which all of us can relate. Even when the stakes of a dispute are extremely high, most people have an innate sense of the party that was primarily at fault in a lawsuit.

Segmenting Juror Types: When jury researchers have a large sample size of survey respondents or mock jurors expressing their opinions about the same dispute presented in the same way, it becomes a simple task to segment them on a best case/worst case continuum. All jury research includes demographic and lifestyle questions answered by each individual research participant. Tabulation software is utilized to determine juror opinions according to each of these demographic and lifestyle questions, thus determining the leanings of jurors according to these groupings (i.e., gender, race, job type, income category, education level, political affiliation).

Reaction to Witnesses, Lawyers, Documents, and Other Case Elements: Mock jurors are very adept at expressing their understanding, and opinions, of various case elements. This is especially true of "static" elements like documents, videos, etc. Unlike witnesses and litigators, these trial elements do not change. The only thing that may change is if, how, and when they are introduced at trial. Therefore, research participants can be counted on heavily to provide their interpretation and opinions of these elements. Similarly, mock jurors usually have strong opinions of the key persons in a case. The downsides are that opposing counsel is, at best, limited to asking questions off-camera during videotaped depositions and many, many depositions are not video recorded, making assessment of witnesses difficult.

Verdicts and Awards: The goal of jury research is to make the research exercise as close to trial-like as possible. Obviously, this goal has huge limitations. The lack of the actual strategies of opposing counsel is certainly an issue. The truncated nature of the mock trial has inherent issues. The lack of exposure to key witnesses, especially primary plaintiff and defendant, is problematic. Shortened jury instructions and anticipating verdict forms are also a challenge.

Having shared these thoughts, there is still a "secret weapon" that jury researchers have at their disposal. This weapon is the power of consistency. That is, if mock jury research is well planned and executed AND the results of different jury panels are consistent, the more reliable the results. Yes, the variables and limitations remain, but good mock jury presentations that yield consistent results over multiple jury panels provide a better level of reliability in terms of predicting verdicts and awards.

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 rsamples@rrsresearch.com.

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