ALL THINGS JURY: Making the case for trial consultants

CHARLESTON -- There are many reasons for litigators to seek qualified trial consultants to assist them with case strategy and jury selection.

However, the most basic reason is that trial consultants are trained in research methodologies that focus on eliminating bias and limiting the number of variables for the research process.

Litigators, on the other hand, are trained as advocates. This is in direct opposition to scientific research methods that strive to eliminate, or at least balance, advocacy in the research process.

One of the more difficult issues that trial consultants face is negating the strong need for litigators to "win" during mock jury focus group and mock trial exercises. While this is an admirable trait at actual trial, it is the bane of trial research. Why? Reason number one is that it usually provides a false positive.

That is, the litigator does such a good job advocating his/her client's position that the research process fails to reveal the true strengths and weaknesses of the case themes. Good trial consultants will insist that the presentations for both plaintiffs and defendants be balanced and receive equal consideration.

In fact, I often ask the lead litigator to consider presenting the opposition's case and letting an associate present his/her client's case for research purposes.

The research basis for this logic is that much more can be learned from losing, rather than winning, a jury research exercise. While I'm certainly not suggesting holding back on key themes and points of fact, I am suggesting that a strong desire to win a mock research effort must be "checked at the door."

Another element of effective jury research is anonymity. The first consideration of this element is that research participants should not know which party is sponsoring the research effort. If participants know who is sponsoring the study, this can further lead to false positives.

Mock jurors are always paid for their time and opinions. Knowing who is paying them, and who is sponsoring the research, can lead participants to tell the sponsor "what they want to hear" rather than reveal their true opinions.

The more important consideration for hiring a trial consultant is the researcher's focus on limiting the number of variables introduced during the research process. Many, many variables must be considered, and those with less potential value must be limited.

For example, the demographic and psychographic profile of mock jurors must receive considerable attention when conducting trial research.

Also, the introduction of key themes and messages for both the plaintiff and defense cases must be limited to some degree. That is, it is the researchers job to prioritize the primary strategic elements for each side of the case and to control other variables in order to obtain meaningful feedback on these key themes and messages.

It is useless to test minor variables such as the litigator wearing a red or blue tie when the focus of the research needs to be obtaining input to key facts, witnesses, evidence and particular message points.

Therefore, litigators should be cautious as to how they utilize jury research. Poor research methodologies including those that obtain false positives do an injustice to the client's position.

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. He can be contacted at rsamples@rrsresearch.com.