After almost 20 years as a jury consultant, I have seen, talked about and/or been a party to many types of jury research — some great, some terrible and a lot in between.
Jury research should not be a one-size-fits-all process. Be sure to define your goals and read through the following tips to insure you’re getting jury research that is meaningful as you move toward trial.
Working together with your consultant will make the experience richer. Don’t just give your consultant documents and show up to present your case on the day of the research. Talk with the consultant. Work with that person to help him understand your case, and let him help you understand your case from different perspectives.
The consultant cannot know what your biggest fears are if you don’t tell him. The consultant cannot know which evidence has a 50-50 chance of making it into trial unless you tell him.
All the nuances in the universe of information that counsel is dealing with are important for the consultant to know as he prepares the design and execution of research. Collaboration and sharing are critical to a successful relationship.
Respect the consultant’s opinions
Don’t hire an order-taker. There are many variations of research out there. Don’t hire the person or firm that will just do it the way you want it to be done.
While it’s important for everyone to remain flexible, you’re doing yourself a disservice by hiring someone who doesn’t challenge your ideas or suggest alternative ways of dealing with an issue.
There are many problems that can affect the validity of research that every consultant should know and do his best to remedy. Jury research is an investment, and we all want a good return.
The day of the research is not the time to do the first run-through of your presentation. Even though jury research is good practice time, it should not be the first practice time. Jurors immediately pick up on disorganization and lack of preparedness.
I always recommend a rehearsal on the day or two prior to the research if at all possible (even by telephone, if necessary), so that the kinks can be worked out, the exhibits are in order, and everyone is on the same page.
Many good ideas and comments come out of rehearsals, and those who dismiss them as just more “work” are shortchanging themselves. Some of the best litigators I have worked with embrace this idea.
Identify your goals
As I mentioned, there are many different types of jury research. Be clear about what you are interested in learning, and design the right study for your case.
Are you testing themes? Is there some evidence that requires a conditional exercise? Is it a damages study? Is it a combination of things? Being as specific as possible about what you want to take away from the experience helps a great deal in the formation of the research design.
A 45-minute presentation from each side without any damages analysis is not going to tell you anything about a likely award. Inserting a few witness clips into the main presentation is not a witness study.
Figure out what you want to accomplish and discuss it with the consultant.
Avoid trial by ambush
Keep the presentations balanced in tone, information and attorney experience. It creates all sorts of problems when counsel does not work together on the presentations and one side addresses an issue that the other side does not, or when one presenter is a veteran and the other is a recent law school graduate who has never stepped foot in the courtroom.
As much as possible, strive for balance so jurors can address the issues on the table rather than the distractions that arise when people are not working together or respecting the process.
As with many experiences in life, when it comes to good jury research, sometimes it’s difficult to know it until you see it. When you can walk away after reading the report thinking, “That was so helpful and interesting; I know exactly what I have to change to make my case better,” you’ll know that all of your preparation paid off. Use the few tips above as a start to help you reach your goals.
Julie Campanini is the founder and principal at Trial Insights. She can be contacted at Julie@trialinsights.com. A version of this column originally appeared in Michigan Lawyers Weekly, sister publication to The Daily Record.