ALL THINGS JURY: Trial research is communications research

By R. Robert Samples | Jan 3, 2008


CHARLESTON -- The growth and evolution of the trial research profession has been explosive over the past several years.

One could argue that "trial research" has been around for as long as there has been a legal system-after all, litigators have always been testing ideas and strategies on family, friends, and colleagues. But today there are many consulting firms staffed with specialists who have graduate degrees in trial research (a few established universities now offer graduate degrees in trial research, most based in psychology departments).

The approach taken by these firms is typically a very technical one. They rely heavily on sophisticated quantitative research techniques that yield lengthy reports full of complex charts and graphs. Since this technical data is difficult for "non-research" persons to digest, it may take hours to present and explain the results.

However, communications research companies, while we certainly appreciate and respect the specialized expertise of trial consulting firms, do not always agree with the strict quantitative orientation of these firms. Specifically, using quantitative research tools (like multiple regression) on small sample sizes (i.e., 20 to 30 respondents in a mock jury trial) is a questionable issue, at the minimum. Quantitative analysis is designed for samples of hundreds of respondents. The use of quantitative analytical tools on a sample size of 20 to 30 respondents can be very misleading and masks the fact that a handful of respondents could dramatically impact the overall results.

The "paralysis by analysis" that tends to result from technical quantitative research can also be problematic because it tends to take the focus away from the "big picture." When attorneys spend months working through a myriad of trial details, they sometimes need assistance "seeing the forest instead of the trees", and lengthy, technical reports sometimes do little to put things in perspective. The emphasis can often focus more on the process than the results. Maybe because of their Ph.D. backgrounds these firms often seem fixated on the "science" of trial research and showcasing sophisticated analytical tools.

On the other hand, communication research firms with a background from a broad range of experiences often take a different tact to trial research-a "big-picture" approach that is simple, direct, and results-oriented. While we certainly understand the "science" of litigation research, we do not overemphasize it.

The primary tenant for communications professionals is to keep things simple and understandable. We take pride in our ability to identify the key strengths and weaknesses of a case and then formulate recommendations with strategic implications.

So, the next time you utilize a trial consultant don't be overwhelmed by the "science" of trial research. Urge your consultant to focus on the big-picture perspective that will give you a firm foundation in preparing, and winning, your case.

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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