All Things Jury: Predicting damages not the best use of jury research

By R. Robert Samples | Nov 21, 2007


CHARLESTON -- Jury research is a powerful tool if properly utilized. When designing a research project, experienced researchers focus on the issues that are best addressed through the research process, while recognizing its limitations.

In addition, it is the duty and obligation of researchers to assist litigators in managing client expectations from the research effort. This is, indeed, a tough task at times.

One of the primary areas that requires a deft touch with clients is to prevent them from overemphasizing the wrong things. The best use of jury research is in refining case strategy and providing insight into the jury selection process.

However, clients often try to lead the research process into emphasizing a win/lose scenario and predicting damages. While jury research does have value in these areas, it's much more of a study in how to get a preferred result as opposed to using the exercise as a predictive model.

Naturally, clients want to gauge their chances of winning and to understand their potential exposure in any loss scenario. However, putting too much emphasis in these areas does everyone an injustice.

Trying to determine if you have a winning case and worse, by assigning a dollar amount to damages based on 2 or 3 qualitative focus groups can be misleading, even dangerous.

Make no mistake, watching deliberations unfold is fascinating, and the decision regarding damages is arguably the most compelling moment in the mock exercise.

I'm not suggesting to ignore or dismiss what mock jurors decide with respect to damages, but you must look beyond the numbers to the rationale behind their decisions. The key is to remember that jury research is best suited to identifying key strengths and weaknesses of your case and then make refinements to case strategy.

There are many, many variables to consider when using research to predict results. Primarily, group dynamics, which are based on the interaction of several different individual personalities is impossible to duplicate.

As everyone knows, the interaction of personalities can vary widely from one group to the next. Often, it only takes one strong voice to change the dynamic of group decision making.

Sample size is also a key component in any predictive research model. The projectionability of results from qualitative research results can certainly be misleading. This is true of any focus group exercise.

Another variable that is limited during the research exercise is the truncated nature of jury research. The fact that jurors do not receive full exposure to the experience of an actual trial is another limiting aspect of jury research.

All this is not to say that jury research is useless in the areas of predicting win/loss scenarios and potential damages. Rather, the details lie in the emphasis and focus of the research effort. Placing the proper degree of focus on the various research objectives and outcomes is the key to success. An experienced trial consultant plays a vital role in this task.

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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