It seems that “top 5 or top 10″ lists are popular in many areas. They are often entertaining; the show “Family Feud” is built on them. Late night talk shows thrive on them, going back at least to Johnny Carson. Thus, I thought I’d list a few of the top reasons for conducting mock jury, focus group, and other related litigation research. Although they are many reasons, here are some of the most common reasons expressed by clients:
1) Evaluate the liability and damages issues in a case. This one is obvious, except that many times it has a back story in which the attorney(s) and litigant(s) disagree about the strength, or weakness, of a case. The outcome is in dispute within the trial team and it is time to sort things out to see whose perspective is most aligned with what potential decision makers (e.g., jurors, judges, arbitrators) will think about the case.
2) Related to the above, we often describe litigation research as a “reality check.” We have written about this in the past (https://magnusinsights.com/reality-check-plaintiff/ & https://magnusinsights.com/reality-check-defendant/) but it this remains a top reason to conduct research. Some clients say they have a the need to “prove” to the client that the case may not be as good as he/she thinks it is. Said another way, attorneys often need to “CYA”, which, again, we’ve written about (https://magnusinsights.com/cya-another-reason-for-a-mock-trial/). That clients can turn into adversaries is not uncommon. It helps when the client and attorney have the same perspective on a case based on what mock jurors think about the issues. Litigation research ensures that you are doing all that you can for your clients.
3) Sort though the complexities. Some cases have many issues, complex issues and are, to use a technical term, “messy.” It is these cases that benefit the most from early focus group research to see how the pieces of the lawsuit puzzle fit together. Determining the best way to present the various issues can streamline the discovery process as well as the resolution process at mediation or trial.
4) Witness evaluation/preparation. Fact witnesses are usually the least experienced people in a courtroom. They are often nervous, scared, stressed, confused and yet they are critical to the outcome in the case. (Professional/expert witnesses may have these issues and others of their own, such as the ability to explain complex material.) By giving a witness a preview of the courtroom experience, and determining their strengths or weaknesses, these issues can be addressed before their performance breaks a case. (Not that all witnesses can be polished to perfection, by anyone.)
5) No one wants to be a loser. And, while it is impossible to prove what would have happened without mock jury research, we know, empirically, that trial outcomes are generally improved over mock trial outcomes. That is partly by design, in that mock trials should test worst case scenarios. But, without exception, mock trials are informative. Things are learned that would otherwise have been unknown. Arguments are refined and perspectives are aligned. Mock jury research improves litigation successes, while minimizing negative outcomes.
The top 5 reasons David mentioned about conducting mock jury or focus group research are on point. I have no additional reasons to add, therefore, I will make a general comment. In the 30 years David and I have owned Magnus, including the almost 10 years we have been writing our twice weekly blog, we have repeatedly emphasized to our clients that, unless one conducts some kind of research in advance of the “big day,” there is absolutely no way to understand the case from the perspective of the decision maker(s). Regardless of whether the “big day” for one’s case is arbitration, mediation, a jury trial, or a bench trial, one can never know what the decision makers are likely to do without asking them. I have been a psychologist for a long time, specializing in the study of human behavior in group settings, but I am certainly not a mind reader. Most attorneys have zero education or expertise in human behavior, including jury decision making, but some of them persist in making predictions about the outcome of their case based on past experience with other cases, cursory reviews of other case outcomes in the trial venue, and my all time favorite, “gut feelings.” Although “gut feelings” sometimes solve mysteries on cleverly written crime dramas, it has been my experience that they are, in real life, more often wrong than right. There is no downside to conducting scientific assessments of one’s case. None. As far as I am concerned, the more opinions, provided by the most people one’s budget can support, the merrier the trial lawyer will be.
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