How NOT to do mock jury research!

I recently had a telephone call from a prospective client who wanted help with a case going to trial within 2 weeks of his call. It was a big case and he asked that we conduct mock trial research on a specific Saturday (which was 10 days after the call), in our home venue (despite the fact the actual trial was on the opposite coast of Florida), and told he me he only wanted 1 focus group panel. (Initially, he did not tell me trial was set for 2 weeks later, but that came out when we tried to work out a reasonable timetable for the research.) As it turned out, we did what we rarely do; we turned down the case. The attorney was breaking too many “rules” about conducing jury research. There really aren’t rules, per se, but he was asking for things to be done in several “wrong” ways, in our opinion. I’ll elaborate. Doing research 2 to 3 weeks prior to trial on a big, complicated, medical malpractice case is not a good idea. First of all, it takes time to set up research, to book the facility, to review the documents, and to recruit the mock jurors. When a case is complicated, that takes a bit more time. It also takes time to analyze the data and to prepare a written report. Second, venue is important. Though there are a few situations in which using an alternative venue is warranted, this was not one of them. It was requested merely as a convenience for the lawyers. Jurors are different in different venues. They are very different between the venues in question in this case (an upcoming post will address this issue further). Next, the use of 1 group was requested as a time and cost savings device (remember, this was a large, potentially high value case). The terms focus group and mock trial are generic enough such that they are relatively meaningless. For us at Magnus, a basic difference is that a focus group is non adversarial and a mock trial is adversarial. This client wanted a non adversarial group, “to determine damages.” Again, the warning signs flashed for me. If we are evaluating damages, and we almost always do, particularly this close to trial, the appropriate methodology is adversarial. Further, small group research is not predictive of verdicts – that is, damages. Research does many things for the client, but that is asking too much predictability. And, when the research is adversarial, we use a minimum of 2 deliberations groups so that we have a way to compare the results. There are times when the rules get bent and all the stops get pulled out. We’ve done research on cases on short notice and immediately before trial. But, we always work in the right venue, with an acceptable research design. In this case, there were just too many rules being bent – it was a recipe for a disaster that we were not going to let happen on our watch. What was being asked in this case was a major disservice to the client, if not malpractice. Some might suggest some research is better than none; I’m not so sure. Cutting this many corners could lead to a false sense of security, and not learning what the attorney needs to know to help his or her client. It was certainly too risky for us to be involved.

No one hates to turn down work, and more important, revenue generated from work, more than David and I do. However, we have turned down quite a bit of work over the years, for a myriad of reasons. In the recent unfortunate instance David mentions, any of the incorrect and unreasonable requests the prospective client made were sufficient justification for turning down the work. Attorneys and psychologists have different ethical and professional standards governing their behavior. What is acceptable for an attorney, for example, conducting research with an improper sample, is unacceptable and bordering malpractice for a psychologist. The attorney who believes he or she can make demands on a trial consultant because “the client/customer is always right” has some surprises in store when interacting with David and me. I have never, ever, taken a shortcut, conducted poor quality research, or violated any ethical standards of my profession and I’m not going to start now. It’s just not going to happen! David covered the reasons why we don’t conduct research in the wrong trial venue; the reasons why we use more than one research group on every case; the reasons why we do not use a convenient, but biased sampling technique; and more. Although there are many of our competitors, including some who are purportedly qualified to do what we do, who conduct research according to their clients’ whims, Magnus doesn’t do anything except the right thing. The attorney who contacted us in hopes we would conduct shoddy research at his behest is, to put it mildly, not our type of client. I daresay he soon found someone else who was willing to do anything for the right money, but I’d rather do just about anything instead of doing the wrong thing. As Chuck Berry famously said, “It just goes to show, you never can tell.”

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