Advance warning, this post is positively self serving to our means of earning a living – trial consulting. Every once in a while, and more often than I think it should happen, I hear comments from prospective clients who say something like “my client or my co-counsel doesn’t think doing mock jury research is really going to be beneficial…” After doing this type of work for 25+ years, I find this to be a shocking comment. Maybe they are naive, maybe they are ignorant not having done it before, maybe they have been burned by some of the charlatans out there. I don’t know. What I do know is that we ALWAYS learn something significant that the lawyers/clients/we did not know before the research which helps them litigate their case. Always. Sometimes, the research confirms the trial strategies being utilized. More often, it refines those strategies. Sometimes, it shows that certain strategies are a recipe for disaster. We consistently obtain perspectives from jurors, arbitrators, mediators, or judges that the attorneys, and we, did not have prior to conducting our research. We never know what it is we are going to learn, but we usually have a good idea of the issues to be tested. And, many times, the attorney clients retain us for research because they have a disagreement with their client about important case issues. As one of our early clients told me, my client thinks the case is worth $x (small amount), I think it is worth $X (big amount); one of us is wrong and we need to find out who is wrong before we get to the courtroom. This type of analysis is relatively easy to comprehend. More often, the issues are not so simple. And, many attorneys and clients are “sure” their case is strong. They so fervently believe this that the idea of spending money to test jurors’ or arbitrators’ or a judge’s reactions seems to be a waste of that money. However, over and over, the money proves to be well spent. Admittedly, the process is not inexpensive. But, the money to be spent is relative and is virtually guaranteed to return more, from the information learned, than in the costs and fees incurred. The costs to conduct jury or other similar research is an investment in information. This information is used to make informed litigation decisions. It is used to build successful case strategies to maximize outcomes or minimize them, depending on which side is conducting the research. In that it is about gaining information, I often want to ask the clients who start down this path of “Is it worth it?” – “What are you afraid of learning? What is the hesitation?” Due to the mere fact that the attorney initiated contact with me, something is nagging him or her about the case. That being so, why the hesitation? Other than spending the money, there is nothing to lose, and everything to gain, by conducting (properly) mock jury, mock mediation, mock arbitration, or mock bench trial research. Always.
It is a well known social psychological phenomenon that most people prefer schema congruent information over information that is incongruent with their schemata. (The reader is probably asking himself/herself, “What does this mean, in laypersons’ terms?”.) Most people have a certain way of viewing the world that, for them, is more important than reality, the truth, etc. They form schemata (sometimes known as schemas and the singular of which is schema) as ways of interpreting new information in their brains. When new information fits with the person’s way of viewing the world, it easily fits into his/her pre-existing schema about a general category. However, when new information does not fit, social psychologists call it “schema incongruent information,” meaning the person has no place within the brain’s organizing system to put the oddball information. A preference for schema congruence explains why politically conservative people watch FOX news, while politically liberal people watch CNN or MSNBC; why people who are gun enthusiasts read NRA publications, while people who abhor guns do not; etc. etc. etc. Applied to our business in the world of litigation, many attorneys, insurance adjusters, and other potential clients have formed impressions about their lawsuit long before they decide to contact us. Their impressions, correct or incorrect, form the basis of their schemata about the outcome of the litigation. Because of people’s preference to shield themselves from any information that might conflict with what they already know, or believe, about their case, some potential clients are afraid to learn any new information that might conflict with their pre-existing opinions. Scary? Yes, but there are many people who are comfortable making important “bet the farm” decisions based on limited information. These people are certain they are right because they: (1) have usually been right in the past; (2) have not been told they were wrong in the past; (3) do not want to admit they were wrong; (4) do not want anyone else to know they are wrong; (5) prefer to make decisions that are “good enough” instead of accurate; and a myriad of other reasons, most of which are self serving. Finding out, during a mock trial, focus group, mock arbitration, or other means, that one was absolutely wrong is more than some people’s inflated egos can handle. These are the same people who go through life truly believing they know it all, when in fact, no one knows everything there is to know. I, on the other hand, am constantly amazed by the vast amount of things I don’t know about the world. And, when it comes to predicting human behavior, I am positive I don’t know it all, but I am equally positive I know more about human behavior than anyone who hasn’t studied it for as long and as vigorously as I have. So, when it comes to making a decision about whether or not to conduct pre-trial, pre-mediation, or pre-arbitration research, I challenge all skeptics: I bet you don’t know EVERYTHING there is to know about people’s reactions to your lawsuit!