Discovery Has Closed. How Can We Leverage Information Obtained to our Strategic Advantage?
Updated: Aug 13, 2020
Originally published on Blueprint Trial Consulting
After the close of discovery, it is natural to be thinking ahead to settlement or trial. However, there is an interim strategic step which can be utilized to ensure the best possible outcome in either scenario—jury research and trial consulting. Both terms are misnomers, as it does not matter if the lawsuit ever reaches a trial or a jury, and statistically, in most cases, it will not. Jury research in its many forms is a tool of leverage–and information and its value is irrespective of whether the case ever is presented before a jury in a courtroom.
First, some history…
As a profession, jury consulting and research found its origins in the early 1970s, in a criminal case in which Vietnam War protesters were prosecuted for conspiracy to raid draft boards, destroy conscription records and kidnap Secretary of State, Henry Kissinger. A group of anti-war social scientists volunteered to contribute their experience and expertise to the defense of this case.
The profession has come a long way since the 1970s and as it has evolved, so have the types of cases in which jury research is used, the methodologies employed and technologies available. As these elements continue to develop, so have the services available to trial teams.
What is jury research? Are there different types?
The terms “jury research” and “jury consulting” were once used to describe how social science research was applied to the jury selection process for a lawsuit in trial.
As the profession has evolved, the terms have expanded to describe a vast array of services available to the trial team, most of which are tools of leverage and information and do not require a trial as an end result, and are in fact most effective when used in advance of settlement discussions. A brief synopsis of some of these leverage tools include:
Mock Trials and Focus Groups, which can be conducted in person or online with a varying number of deliberation panels and are designed to test the effectiveness of an entire case including opening statements, closing arguments and the testimony of key witnesses. Mock jurors are selected from the trial venue and are representative of the jurors you are likely to see at trial. The research results provide feedback on the effectiveness of case themes and storylines, the ability to effectively counter the evidence and arguments likely to be presented by the other side, recommendations as to how to enhance witness credibility and strategic recommendations for trial.
Community Attitude Surveys are conducted to determine public opinions regarding key case issues and the parties. When a case has received media coverage, a Community Attitude Survey provides vital insight regarding the extent to which that media coverage has influenced jurors’ views about the case, and it can inform what type(s) of media has had the greatest impact on their perceptions.
Jury Profiling Research uses advanced statistical modeling techniques to create jury profiling models of “good” and “bad” jurors. These models are based on utilizing “big data” techniques, which evaluate each juror and compute the probability that he or she will be biased against a particular side in the case.
How do I know which type of jury research I need for my case, if any at all?
There are many types of cases in which the return on investment is significant. Cases with a large dollar amount at stake, company or personal reputations at issue or heavy pre-trial publicity are all good candidates for jury research. However, some lesser known reasons to engage in jury research include the following:
Cases in uncharted litigation territory with untested legal or factual issues such as “sharing economy/third-party platform” cases, lawsuits involving new or emerging torts or types of cases where there has been an influx of litigation due to the cultural zeitgeist (#metoo and sexual harassment claims).
To help the trial team refine the case themes so they resonate with jurors. Do jurors understand your theory of the case? Which evidence is compelling to them? Which evidence is less important or irrelevant? What are jurors’ perceptions of your client? Do jurors have biases against them?
When damages are severe, but liability is questionable. Catastrophic injuries and death elicit a great deal of sympathy and have high verdict potential regardless of whether jurors believe that the defendant is liable. In these cases, will your jury’s judgment be clouded with emotion or will they be able to separate the questionable liability from catastrophic damages? If not, are there certain themes, graphics or arguments that will help them attain a more rational–rather than emotional–response to the case?
To evaluate your experts. Is your expert great on paper, but not with people? Is s/he likable? Credible? Cases hinge on the credibility of their experts.
To evaluate the strength of your case and prepare for meaningful settlement negotiations or when your negotiations are at an impasse.
My case will likely settle after discovery closes, and will not see a courtroom. Why would I need jury research?
Jury research will give you clarity regarding the value of your case: To have a productive mediation it is necessary to have a realistic perception of your case value, which will allow you enough time to have meaningful intra-company discussions so proper monetary authority can be obtained well in advance of the mediation.
Jury research is a tool of settlement leverage and can be used in advance of mediation: If you have a party or parties impeding settlement or at an impasse due to differing case evaluations, in-person jury research, which includes an assessment of damages, will give clarity in the form of supporting data to bring the parties closer to a resolution. If the results of the jury research do not support your initial analysis, you may then revisit your settlement strategy. Negotiating power comes from knowledge and information. Jury research will strongly position you to respond to your adversary’s valuation of the case (if you obtain favorable results, you may want to share the results of your mock with opposing counsel and/or the mediator to facilitate settlement).
Jury research evaluates the factual strength of your case to inform your settlement strategy: By identifying critical issues, and testing the theory of your case prior to mediation or settlement discussions, you will have the time to refine your case presentation and strategy. How strong is your case? Your experts? Your evidence? Let the jury research inform you, then you can negotiate from a position of knowledge and strength.
Who conducts jury research?
Jury research is conducted by a team of social psychologists and lawyers with a background in the field of psychology who evaluate how individuals’ emotions, perceptions, and attitudes influence their decision-making and gain insight into how individuals analyze and ultimately decide cases. Based on this information, the jury researchers work closely with counsel to develop themes and specific language at trial, advise on visual strategies, create jury profiles and prepare witnesses.
Can I ever use jury research during discovery?
Yes. Jury research and discovery are not mutually exclusive and are often conducted simultaneously. Often, an issue comes up in discovery (in a deposition for example) and jury research is conducted with respect to that particular issue. Conversely, jury research conducted during discovery can uncover issues that may require further discovery or help guide discovery strategy.