ALL THINGS JURY: Providing new information requires a different research technique

By R. Robert Samples | Nov 15, 2007

Complexity. There is a wide gap between trial research and traditional marketing research. Typically, survey research asks participants to respond to questions that are short and straightforward: Which candidate do you favor? Which bank is your primary banking institution? How often do you access the Internet? Both question and answer are simple, "cut and dried."

But trial research is more concerned with testing concepts that require exposing individuals to issues, witnesses, and information. Respondents are presented with several different nuanced and complex issues and asked to process this information, make decisions based on this information, and explain the rationale for their decisions. In a mock trial, the "jurors" might sit through an all-day presentation consisting of opening and closing statements and numerous video depositions. At day's end, they participate in a deliberation in which they must consider all of the issues and arguments that have been presented, as well as the opinions of their fellow jurors, and come to a consensus decision. Hardly a "cut and dried" proposition.

Because the level of complexity is much higher for trial research, an experienced researcher is essential to planning and executing the somewhat intricate methodology. There are several pitfalls that could potentially sabotage the project's results. The following guidelines are presented to help avoid these pitfalls.

Keep it balanced. This is the cornerstone of all marketing research, and it is absolutely essential in trial research. But often, the problem is that attorneys tend to be extremely competitive and sometimes approach mock trials with the express purpose of winning the exercise. On the surface, this is understandable: attorneys may have months of preparation in a case and they want to be reassured of the strength of their arguments. However, this approach can skew the presentation, and provide a "false positive." We always recommend that counsel present a strong case for the opposing side and employ an experienced litigator to present this case. Holding back or minimizing the opponent's arguments is counterproductive-we always learn more from a mock exercise when the presentation is fair and balanced.

Present the important faces of the defense and plaintiff. Often, decisions are based on reactions to individuals, or a bias toward a certain company. Provide the respondents with a thorough background on the key individuals and organizations and how they fit into the case.

Identify the pertinent facts that should be presented. One of the most common refrains heard from respondents at the end of a mock trial: "I wish we had more information." Understand that the exercise is a truncated version of the actual case, and take great care in identifying the factual information that is most essential to the case. Supplement the factual information with opinions relating to these facts, but help your audience by clearly delineating fact from opinion.

Make it realistic. You want respondents to be in the proper mindset so they approach the mock exercise with the same focus they would bring to an actual trial. Participants should understand that the issues being discussed in this exercise are real, and there is a lot at stake. One way to put the mock jurors in the proper mindset is to present the case in an environment that is similar to an actual courtroom. At the conclusion of the presentation (prior to deliberations), read the jury instructions that would be used in the actual case. As mentioned previously, it is important to present the key "faces" of the defense and plaintiff. To this end, use actual names (when possible), and present video clips of depositions to give jurors a good feel for these witnesses.

Make allowances in the mock exercise to account for the shortened time frame. In order to help mock jurors digest the condensed presentation, you may want to do some things in the mock exercise that wouldn't normally take place in an actual trial. For instance, we encourage mock jurors to take notes during the presentations so they are better prepared during deliberations. Jurors also are given copies of key documents for their reference. During deliberations, jurors are encouraged to ask questions, and a representative will enter the jury room to provide needed clarification. Following deliberations, a professional moderator will debrief the jurors, and pose "what if" scenarios to them.

Trial research is certainly much more complex than traditional marketing research. But following the above guidelines and making use of an experienced researcher will help maximize results.

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

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