ALL THINGS JURY: Learn more by losing in jury research

By Mark C. Blankenship | Jun 29, 2007


CHARLESTON -- Every attorney believes he or she knows how to win a case. Knowing how your case can be lost is often more important.

Jury research, such as mock trials, focus groups, and surveys, is a tool for finding where you need to bolster your case. Correct use of these tools is essential to having the best possible end result for your client at any stage in the lifespan of a case.

Jury research is not about winning your case. Any attorney can generally stand in front of twelve people and convince them to agree with his side of an argument if only one side is presented. What other choices would twelve people have? You, as a skilled attorney, know your opponent is going to be a very strong adversary, presenting arguments, witnesses, and evidence that will cause doubt in a juror's mind as to the grounds of your case.

Your job, as attorney, is to anticipate these issues and doubts and mount an offensive before they become major problems.

The strengths of your opponent and weaknesses of your case should always be at the front of your mind as you work on the jury research phase of preparing for trial. Playing your own devil's advocate will make your case stronger. You will discover seemingly small points that can sink your case, making you vulnerable to your opponent. You can develop strategies that address these points so they do as little damage as possible.

As an attorney, you want your client to have confidence in you. You want them to have no doubt that you can win their case. Showing your client that you are preparing for any type of juror through jury research is one way to help build that confidence. Let your client be a part of the process but do not think a mock trial is only to impress your clients.

It is imperative that they realize the purpose of jury research. Jury research, mock trials and focus groups in particular, is not in any way an indication of your abilities and skills as a litigator.

By exploring every weak link in your case, you're able to make your case stronger. Appropriate jury research is never about winning your case. It should always be about shaping and refining your strategy before the real trial begins. Understanding the many nuances of juror behavior will not only benefit you during trial, but during discovery, while you are taking depositions or while you are filing pre-trial motions.

In other words, knowing the strengths and weaknesses of your case as well as those of your opponent can give you a leading edge during the entire litigation process.

Always remember, mock jurors are not fake jurors. They are people that mirror what your real jurors will look like. They think like your "real" jurors. They have the same backgrounds and upbringing. They live and work in the same communities.

Through jury research, you will learn how real people react to a witness's testimony or how plaintiff and defense exposure can determine if you win or lose. You will discover how emotional reactions toward a person or a company will affect a juror's decision-making process.

Jury research is not about winning. It's about learning. Learning what makes your case weak will make your case strong. Learning what makes your opponent's case strong will make his or her case weak.

Every step of preparing for trial should build on the last – learning case law, studying strategy, analyzing pre-existing prejudices in a community, testing strategy with peers, and testing strategy on mock jurors.

Blankenship is a senior vice president with RMS Strategies, a communications and opinion research agency headquartered in Charleston. RMS Strategies has executed extensive public relations plans and litigation research projects for clients throughout the nation during the last 20 years. They can be contacted at 304.343.7655 or

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