WEST VIRGINIA RECORD

A fair and impartial trial is, of course, a primary tenant of our legal system. But in high profile cases (both criminal and civil), this right could be compromised. Publicity surrounding the case may be extensive, and/or the principals may be very well-known in the community.

"Back in the day," lawyers collected newspaper clippings on these high profile cases and presented them to the judge in an attempt to obtain a change of venue. But news clippings provide only anecdotal evidence, and the decision to grant a change of venue was primarily limited to the judge's personal experience and knowledge.

Today, lawyers can present solid evidence to a judge through a Change of Venue Survey. If counsel believes that a present hostile sentiment exists that would prevent a fair and impartial trial, he can commission a public opinion survey to quantify awareness of, and attitudes toward, the principals in the case. Counsel can then present the judge with quantifiable evidence that shows the percentage who have heard of the case, the percentage who have formed an opinion on guilt, and the reasons behind their opinions.

The level of bias is quantified, and the verbatim comments about the case provide clarity on the depth of bias (the strength of their convictions). If the budget allows, the questionnaire can also be administered in other geographic areas to show the strength of awareness in the primary venue compared to awareness and bias in an alternate venue.

If the survey results indicate that awareness of the case and the principals involved is low, the change of venue motion is usually not pursued.

However, the information is still useful since it gives counsel a better (and more objective) understanding of the "lay of the land" in the surveyed venue. Furthermore, the survey may be able to provide some basic insights into jury trial selection.

Cross-tabbing demographic variables (i.e., age, occupation, gender, etc.) against opinions on guilt/innocence provides a preliminary profile of jurors most likely to be favorable/unfavorable toward your client.

Of course, these inferences may not apply in those instances when the change of venue is granted and the trial is held elsewhere.

A potential problem also exists in trying to overextend the survey by attempting to create a hybrid of the Change of Venue Survey and the Jury Trial Selection Survey.

For instance, it's not a good idea to ask respondents to react to persuasive arguments that may be presented by the plaintiff or defense (as is typically done in a Jury Trial Selection Survey).

Including persuasive arguments in a Change of Venue Survey can make you vulnerable to charges (from opposing counsel) that the survey results are invalid because your questions biased the respondents. It's best to keep the number of questions to a minimum, and avoid any wording that could be interpreted as biased. You may even consider submitting a draft questionnaire to the judge and to opposing counsel for their approval (although this runs the risk of complicating matters and "bogging down" the process).

Opposing counsel often goes to great lengths to attack survey methodology and discredit the results. As mentioned previously, be sure question wording is unbiased. Also, make certain that you can provide proof that all eligible jurors in the surveyed venue were given an equal chance of participating in the survey.

Just as expert witnesses are used to present information from a credible, third-party perspective, it makes sense to employ a professional litigation research firm to conduct the survey and present the results in court.

When lawyers make use of a professionally-conducted Change of Venue Survey, they are able to go beyond newspaper clippings and anecdotal information to present quantifiable evidence that a hostile sentiment actually is present in the venue.

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.