Do you take vitamins? (I do, especially vitamin C, after meeting Dr. Linus Pauling, and spending a day photographing him, during a visit he made to Jacksonville University. He got a Nobel prize for his research on Vitamin C.) How about a baby aspirin? (I do that too, why not, it’s cheap and it is supposed to help, right?) The point is though, we can never know if such things really make any difference in our lives, but many of us take vitamins, aspirin, as well as many other medications, because they are thought to help, even if proving so is difficult or even impossible. (Efficacy study results on vitamins, in particular, are mixed.) I’ve thought about this phenomenon when asked about the effectiveness of mock jury research. Sometimes couched as “accuracy” or “track record,” but the general question is “Can you prove, with 100% certainty, that there was a better outcome with the research than would have been had without it?”. The answer is almost always no. (We have one case with a before/after trial result; a virtual loss in round 1, a big win in round 2 – but that’s another story.) Proving a win/loss success rate is really not the point for us, as trial consultants, any more than, at some level, it is for attorneys. For example, if plaintiff lawyer 1 got a $1 million verdict, who could say that plaintiff lawyer 2 might have done better, or worse? It can’t be done, and the same would be true for defense attorneys. So, win loss records are not reliable, which is why publishing them as lawyers and trial consultants is unwise, unethical, and maybe illegal (for lawyers anyway). But, does the mock jury result improve the outcome? In less easily quantified ways, absolutely yes. Readers of our posts have seen many examples of how the reality check results in a trial or settlement outcome that would have been different absent the knowledge gained through research. We know it happens, perhaps even more than we know that Vitamin C reduces the chances we will catch a cold. It is true that a vitamin or aspirin has a very low cost compared to most things, certainly, when compared to the cost of a mock jury project. But, even though we cannot quantify some things, if does not mean that something is not worth doing to try to achieve the best outcome.
Taking vitamins is a health precaution some, but not all, people believe in. In addition, there are certain types of people who avoid going to see a medical doctor, dentist, or psychologist, or who avoid taking their beloved pet to a veterinarian, until they are on “death’s door,” then there are other types of people who take vitamins, obtain medical checkups on a routine basis, and who make an appointment with their health care providers at the first sign something is amiss. Attorneys, risk managers, and insurance adjusters are people, just like the rest of us. Some of them avoid doing things to prepare their cases for litigation, believing instead that things will work out or perhaps, trying not to think negative thoughts. In contrast, other attorneys and people who are in the litigation industry prepare for the worse case scenario while hoping for the best possible outcome. In ways similar to people who take vitamins, wash their hands frequently, and try to maintain a healthy lifestyle, risk averse attorneys and their clients retain the services of qualified experts to help them prepare for their cases. Much like someone who is not feeling up to par, recognizing that one has a less than perfect case that requires expert assistance in order to improve, the savvy attorney is able to know when to use focus groups, mock trials, and/or attitude surveys to assess the case. Then, armed with scientifically valid and reliable data, the attorney is in a better position to evaluate the case in order to determine whether it should be settled or taken to court. No one knows everything there is to know about everything, whether it is his/her health or what a jury verdict will be, among other things, such that it is advantageous to gather as much information as possible about the situation, in order to make a more informed decision than one can make on his/her own.