Like many scientific research efforts, trial research is most effective when there is an opportunity to build on previous learnings and results.
This includes general learnings regarding the use of specific research methodologies, understanding jury behavior, and experience with certain types of trials. As with litigators, trial research experience encompasses general categories (environmental, automobiles, pharmaceuticals, etc.) and specific areas such as asbestos, chemical contaminates anti-depressants, etc.
The subject of this column, however, is the value of utilizing multiple trial research methodologies for a specific case. Trial research follows general scientific protocols. Background research of the trial issues is the first step to developing an appropriate research plan. Next, qualitative research such as focus groups or community assessment surveys are a valuable tool for obtaining an overview of attitudes and opinions of the key players and key issues of the trial.
Once this initial assessment is complete, the research team and legal team have valuable information to assist in the decision making process including venue considerations, overall strategy and themes, and jury selection.
Some of the specific trial research techniques that can be considered at this point include:
Change of Venue Motion -- Are we in a venue that doesn't present special challenges including bias against our client? Can a jury be seated that doesn't have relationships with any key players in the trial?
Mock Jury Focus Groups -- Can we test key themes and messages to asses potential juror reaction? Can we look at alternative ways to relay the facts of the case that will be better understood by jurors? Are we leaving out key items of information that jurors want to know in order to make more informed decisions during deliberations?
Jury Selection Survey -- What does a best case and worst case juror look like in terms of demographic and lifestyle characteristics? What key questions can we ask during voir dire that will tell us about the juror without giving anything away to the other side?
Mock Trial -- How do jurors react to key witnesses? Can I re-test the themes and messages based on the results of prior research? Can I learn more about best and worst case jurors based on previous jury selection work? Can I get an idea of our potential for winning or losing and range of damages if appropriate?
Shadow Jury -- Should we utilize shadow jurors to determine how witnesses, themes, and messages are working during the trial? Since we're hearing the other side's case for the first time, do we need to adapt some of our strategies and tactics?
Again, thinking about trial research as a series of learning opportunities is the most productive, and best utilization, of these professional tools. The opportunity to change, and evolve, the courtroom presentation and jury selection strategies through research results should be the goal of the litigation team.
Samples is president of RRS Research, a communications and opinion research agency headquartered in Charleston. He 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.