Over the years we have used different ways to explain what we do, as trial/jury consultants for our attorney clients and their clients. One analogy which has resonated with most people is marketing research. Especially when the “end” client is a business person, the concept of marketing research is familiar. Whether it is a focus group, political poll, customer survey, or other form of marketing research, many people “get” the idea of testing a product or service to ensure that it will succeed in the market place. No major product goes to market without being tested in some way. It can be a taste test for food products or even a test of children’s enjoyment of new toys. Political polls have been common for decades; they test the favorability (or lack there of) of candidates. Marketing research is used before and during the life cycle of a political campaign, product, or service and many methodologies are available to test different questions. Well, the same is true of trial consulting. There is an array of methodologies available to test a lawsuit. Lawsuits can be tested prior to filing, prior to arbitration, prior to mediation, prior to trial, and during a trial. The lawyer has a product, that is, a lawsuit or a case. The lawyer must make his or her case appeal to a market. The market is usually a jury, but can also be an arbitration panel or a judge. The lawyer’s goal is to make the case appeal to as many people as possible by refining the presentation, honing the arguments, and fine tuning the entire case to ensure that the facts and issues will be understood and be received as favorably as possible. By pre-testing the case, before the decisions count, these goals can be achieved. Absent testing the case, the lawyer will never know what the final decision maker is likely to think about it. Marketing research, therefore, takes on many roles in our world of litigation research.
I frequently lecture to law firms, lawyers seminars, insurance company seminars, and other audiences. One of my most frequent lectures is entitled, “Utilizing Psychological Science in the Litigation Process.” At the beginning of this presentation, I review the four disciplines on which trial/jury consulting is based: (1) marketing research; (20) social psychology; (3) cognitive psychology; and (4) experimental psychology. Although I am a social psychologist with expertise in both cognitive and experimental psychology, I believe marketing research is the field most closely approximating the kind of research I conduct on behalf of my clients in the litigation arena. In fact, social psychologists are experts in conducting research on human behavior, regardless of the context in which the behavior takes place, such that many of my colleagues conduct marketing research. Most laypersons are familiar with marketing research, particularly during election years when telephone polls are common. Testing consumers’ attitudes regarding one’s product or service has been part of the business world for decades. Arguably, attorneys have a “product,” that is, their lawsuit, that can be tested for likely success or failure by obtaining the reactions of “consumers,” that is jurors, arbitrators, mediators, or judges, prior to releasing their product into the “market,” that is, the courtroom or other venue where the case will be decided. Focus groups and attitude surveys are the most common marketing research methods by which answers regarding new products or services are obtained. Just as important business decisions concerning new products and services are rarely, if ever, made absent pre-testing consumers’ reactions, in the modern world of high stakes litigation, important legal strategies should never be formulated absent pre-testing one’s case. There are vast differences between being right, based on having conducted marketing research, and being “nearly right,” based on doing nothing in advance of one’s mediation, arbitration, or trial.