Jury research, though gaining in popularity, is still somewhat mysterious to litigators and their clients. In my practice I still encounter misconceptions about the value of jury research, as well as the limitations. Here are answers to some of the most common questions we hear about jury research.
Q. If we win in the research, will we win at trial?
A. The correlation between jury-research outcomes and trial outcomes, even among trial attorneys who do a lot of jury research, is often misunderstood. Some still think that winning in the research means winning at trial (I witness a lot of unwarranted and usually premature high-fiving behind the glass).
Jury research should never be considered predictive of actual trial results. Jury research uses a relatively small sample size (20 to 100 respondents), which is not a large enough sample size to predict the actual outcome.
In addition, the purpose of jury research is to test certain aspects of the case: themes, witnesses, evidence, arguments, etc.
Is your evidence presented in the best way possible? Is your key witness unconvincing and potentially harmful to your case? Are your graphics communicating the right messages? Jury research can answer those questions and others, but it cannot definitively tell you what the jury will find.
In fact, many jury-research exercises with poor outcomes result in a victory at trial because the research has exposed the weaknesses that can be remedied prior to trial. A win does not equal a win and a loss does not equal a loss; how you use the results is what matters.
Q. We have done several jury research projects, so can we effectively set up the next one ourselves?
A. Most consulting firms make jury research look easy, but there are a number of important elements that can affect the study. Consultants take great care in getting demographically viable panels, as they are paid to investigate the potential pitfalls of having certain types of people on the panels.
Consulting firms handle the confidentiality agreements, making sure the data has continuity throughout the study, and design the research instruments and questionnaires in very specific ways for each case. You would not likely want to try a case someone else prepared; we feel the same way. It can be risky.
Q. What types of cases warrant jury research?
A. The short answer is that almost any case can benefit from jury research; that said, we know the reality is that litigation budgets are tight. It obviously does not make sense to spend tens of thousands of dollars on large-scale jury research projects if the initial demand is $50,000 or the case is of nuisance value.
Jury research should be part of the trial-preparation budget, not an addition to it. Each research project should be tailored to your specific needs and case, including the size, complexity and scale of the matter.
Q. Where do you find the mock jurors?
A. They are recruited in a randomized manner — not via Craigslist or newspapers — and are matched very specifically to the venue, not only demographically, but depending on the length of trial, what occupations are automatically excused, etc. The mock jurors could be your real jurors, and that’s the type of match we want.
Most consulting firms don’t recruit their own respondents; we feel the facilities we use for that task are much more efficient and cost-effective. Sometimes attorneys want to do a “mock trial” in front of staff from their offices. That’s fine practice, but it is not jury research.
Q. How much does jury research cost?
A. It varies tremendously according to the complexity of the exercise and is impossible to estimate without discussing case specifics. But most of the cost is the people and space. It costs $500 or more per day, per person, when factoring in rental fees, recruiting fees, honoraria and other expenses for a traditional jury-research exercise (as opposed to the new “Internet” studies). Consultant fees will be added in addition to those expenses.
Julie Campanini is the founder and principal at Trial Insights. She can be contacted at email@example.com. A version of this column originally appeared in Massachusetts Lawyers Weekly, sister publication to The Daily Record.