CHARLESTON -- There are many reasons that litigators turn to jury consultants to assist them in preparing for trial.
Similarly, there are several issues that jury consultants often face with clients that require thoughtful communications in order to explain the limits of trial research.
There are valid reasons to utilize a professional trial consultant. The most obvious reason is the training and experience that is required in order to develop an appropriate research methodology and obtain valid research findings that can truly assist in the trial process.
However, I continue to observe errors in judgment by litigators and clients when considering, and conducting, jury research. For this reason, I have outlined three of the more common misunderstandings that jury consultants encounter on a regular basis.
You can't do it yourself! One of the most basic requirements is that any notion of bias must be excluded from jury research exercises. This requires anonymity for the party who is conducting the research. The sponsor of the research must not be revealed to mock jurors or survey respondents.
If respondents know who is conducting, and paying for, the research effort they often feel obligated to tell you what you want to hear. Further, they become critics of the effort instead of active participants. Knowing who is conducting the research and which parties they represent injects significant, unwanted variables in the research exercise.
This is in conflict with a primary goal of goal of jury research which is to LIMIT the number of variables within the exercise. In this way, the variables to be tested are the focus of the exercise rather than extraneous, unwanted variables.
Don't be seduced by false positives! The worst sin that can come from jury research is a false positive. As I've written before, more can be learned about the strengths and weaknesses of cases from LOSING a mock exercise than winning. But, litigators are trained advocates. They have an intense desire to win, and to please their clients. This is often a formula for disaster in terms of jury research. False positive research findings can ruin the credibility of the litigator, the jury consultant, and the entire jury research process with clients.
Minimize the focus on verdicts and awards! Sure, the law firm and the client want to utilize jury research to asses the verdict and monetary risks associated with the case. However, the primary purpose of jury research is to asses the strengths and weaknesses of case elements and assist the litigation team to improve their legal strategy and presentation.
Yes, there are valuable learnings in terms of verdicts and awards that mock juries deliver. However, the danger factor rises rapidly if clients and litigators make this aspect of the research the primary reason to commission trial research.
One of the issues that is confusing to litigators and their clients is the myriad of jury research options. Through discussions and a thorough review of the case, jury consultants and the legal team can develop the most appropriate methodology that will assist in preparing for trial. The lesson learned is to discuss these options with a jury consultant that you can trust and is open to listening intently in order to establish appropriate research goals and objectives.
Beware of the jury consultant that "sells" a one-size fits all approach to trial consulting.
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.