CHARLESTON -- Jury tampering. Biasing the jury pool. These are serious offenses that no law firm wants to be associated with.
But can conducting litigation research prior to a trial open you up to these charges? What if you're doing a survey to determine opinions about a particular case, and someone affiliated with the opposing law firm is called?
Working with experienced jury researchers prevents the possibility of any illegal or unethical charges from the bench. One precaution that can be taken is to gain approval of the presiding judge before conducting the litigation research. The judge would be informed of the proposed research methodology and provided with the questionnaire to be utilized for the survey. However, this strategy has several disadvantages.
First, many judges are dubious of any type of litigation research, and there is a chance that the project may be rejected out of hand, regardless of its merit. If the approval to proceed is granted, a level of editorial control may be lost and you may end up with a "watered-down" survey. Finally, talking with the judge may lead to knowledge by the competing law firm of your intent to conduct research, which obviously tips your hand.
Another precaution that may be taken is to conduct the litigation research in an alternative or "surrogate" venue. For instance, a jury trial selection survey or a mock trial could be conducted in a neighboring county that has similar demographic characteristics and people with similar values and beliefs. Use of a surrogate venue works best in an area where potential jurors have a similar degree of awareness and bias about the trial that closely replicates persons living in the actual venue.
Surrogate venues also work better with mock trials because the mock jurors receive a more complete version of the case than they would obtain in a short telephone survey. Still, research collected in the actual venue will always yield "richer" data and a better understanding of the biases specific to the actual venue.
And there are times when the research must be conducted in the actual venue, such as a Change of Venue Survey, which is designed to determine if a hostile sentiment (that would prevent a fair trial) exists in the primary venue. Since the data has to be collected in the actual venue, it is critical that stringent screening procedures be employed so that only eligible jurors are included, and anyone who has a personal connection to the case is excluded. Just as important, all questions asked should be balanced and unbiased.
Another issue is that judges sometimes hear that "push polls" are being conducted in the trial venue. Survey interviewees are often confused by research techniques that allow them to agree or disagree with biased statements. "Depth-of-bias" questions are intentionally biased to gauge opinions about different viewpoints. These questions are sometimes used in litigation research to obtain reaction to arguments from both the plaintiff and defense perspectives.
To be fair and balanced, the number of depth-of-bias questions favoring one side should be equal to the number presented for the other side. Presenting a balanced argument is one of the cardinal rules of litigation research; otherwise the data may be skewed resulting in a "false positive." However, the use of depth-of-bias questions (even when a fair mix is presented) should probably be avoided in a Change of Venue Survey since opposing counsel will be closely scrutinizing the methodology and questions in an attempt to discredit the survey results. These types of questions are best utilized as input to the jury selection process and are a key component in a jury selection survey.
Litigation research provides valuable insights that sometimes mean the difference between winning or losing a case. Don't let concerns about jury tampering prevent your firm from utilizing this valuable tool. Potential risks can be minimized with proper screening procedures and balanced and unbiased questions.
Samples is president of RMS Strategies, a communications and opinion research agency headquartered in Charleston. RMS Strategies has extensive crises communications, counseling and litigation research experience and has worked for clients throughout the nation during the last 25 years. They can be contacted at 304.343.7655 or www.rmsstrategies.com.