We have all had our experiences with jury research, and we have all experienced pushback from clients due to the cost of jury research. Some of us avoid jury research due to our conceit that we know jurors as well as any psychologist. This resistance from both clients and trial lawyers sometimes obscures the value of jury research. If the amount in controversy is high enough and if your client can tolerate the cost, some research can be valuable.
This article explores the different types of jury research, mistakes made and lessons learned by the authors, and our experience in the following types of jury research: (1) focus groups, (2) mock trials, (3) jury selection, and (4) shadow juries. Finally, we acknowledge a phenomenon some defense lawyers are struggling with: the paradox of post-truth jurors.
Choosing the Right Consultants
Because of the cost of jury research, it is extremely important to find the right consultant. Competition in this market and cost constraints of our clients have led jury consultants to cut their prices—and also to cut corners. For instance, with focus groups and mock trials, the consultant may simply provide the logistics of the exercise. Some do not provide written reports after the exercise, or, if they do, it is boilerplate and devoid of insight. The exercise may be good for the lawyers, but a good jury consultant will provide more: a work product that provides analysis and insights that help you tailor your arguments, your style, and your strategy.
After several disappointing exercises, we retained Jason Bloom from Dallas to run a mock trial for pattern litigation plaguing our client. As of this writing, we have engaged in eight similar exercises. During our initial conversations about this challenging case, Jason asked me to come to his office to deliver my opening statement to him, one-on-one. I hate arguing to one person; it is artificial and threatens to kill my soul. But I did it, and halfway through the opening, he interrupted me, engaged in a brainstorming session, and then asked me to continue. At the end of the opening, he took my slide deck, rearranged it, eliminated portions, and significantly improved my approach. He took ownership, engaged, and added value.
In contrast, another consultant completed the exercise and asked, “You don’t really want a report, do you?” It was included in her proposal, but she hoped to avoid the time and effort required. A good report not only summarizes the jury feedback,but also provides the consultant’s insights and recommendations. Her question suggested that her report would not add value. She was correct.
Focus groups are one-day exercises where the consultant hires 16–24 jurors. One lawyer delivers a “clopening” for the plaintiff; a second provides one for the defendant. The plaintiff gets a rebuttal. There is very little time for witness testimony, although it is possible to provide a 10-minute video clip of a couple of witnesses to test likeability. Time restraints force the lawyers’ arguments to be concise.
Focus groups are ideal for testing themes, arguments, and people. For instance:
- Do we want to argue contributory negligence (blame the plaintiff)?
- Do we want to test the likeability of the advocates?
- Do we want to test the timeline or other graphics that we want to use?
Focus groups are ideal for such discrete testing. But recognize you are asking the jury to drink from a fire hose. It is essential to keep it simple. Still, the focus group can be valuable for specific purposes.
Warning: One downside to any jury research is that the feedback from the jurors may not be pleasant for the trial attorney. Many trial lawyers have been burned by nasty comments from jurors, delivered orally in deliberation or in writing. Those may include the following:
- “He’s like my grandpa putting me to sleep. . . .”
- “Resting bitch face.”
- And our favorite: “It’s not that he did anything wrong; he just sucks as a lawyer.”
To engage in jury research, one needs thick skin.
Some clients are unhappy with focus groups because they do not simulate trials. For those clients, we run mock trials that can last two or three days. We have openings, closings, rebuttal, and video excerpts of plaintiff and defense witnesses in between. Sometimes we summarize the meaning of the testimony presented at the beginning of the day.
A survey is taken of the jurors after each lawyer and witness. The survey includes whether the juror is leaning toward one side at that moment.
After closings are done, the jurors will deliberate in small groups. Closed-circuit video will enable the clients, consultants, and lawyers to switch from room to room, observing deliberations. This usually leads trial lawyers to despair, to the conclusion that there is no hope for humanity, and that the jury system is a terrible idea. But it also provides a reality check and reminds us that we live in an insulated world surrounded by educated and somewhat rational people. Much of the world is not like us.
After deliberations, the panels reconvene for a group session. The focus group moderator may ask them pointed questions, allow them to ask the lawyers questions, and challenge the leadership of strong jurors. This group session sometimes yields surprising results that do not arise in the deliberations. The dynamic of a large group is different from that of a small panel.
The benefit of a mock trial over a focus group is that you can test more issues, more people, and more graphics. The jurors have more time to absorb and digest the information thrown at them. And a mock trial is more predictive of the verdict than a focus group.
One challenge to any jury research is that someone must argue for the other side. We often take this role if the client allows it. It is a good exercise that forces us to see the case from the plaintiff’s perspective. It may give an advantage to the plaintiff, which helps with deliberations (see more below). But more than one client has been dismayed that we could argue effectively for the other side. It feels disloyal to them, so it is best to warn them in advance.
Below are practical tips for a successful mock trial.
Always have a plan. A mock trial is a social experiment. Like any experiment, you must have a protocol in place. This is important for the mock to be successful and accurate, but it is also important for the team—including the client—to be on the same page. The plan should set out the location and duration, identify the players, and provide the schedule for the exercise. More important, however, is that the plan must set out the goals for the exercise and what you specifically intend to test and why. You may want to test the advocates, the corporate representative, the plaintiff, the venue, and some of your themes or defenses. You and your client should agree on what you are testing. If you do not have a plan, the results may be disastrous and your resources wasted.
Location, location, location. Sometimes economics and convenience dictate that one venue may be sufficient to cover three different venues—if all cases are in “red states,” for instance. This can be a major mistake. Even if your mock director believes he or she can replicate the political, educational, ethnic, racial, religious, and economic demographics of the actual venue, it is better to test in the actual venue or nearby. We saw vastly different results on the same issues in cities only hours apart. For instance, Cedar Rapids and Omaha have some demographic similarities and are relatively close geographically. Yet the themes that resonated in each city were surprisingly different. We saw significant differences in Houston and Dallas as well, while presenting the same facts, lawyers, witnesses, and documents. If testing in an adjacent venue, take care whether one venue is a college town, for instance, or has an employer that distinguishes it from the trial venue.
Winning isn’t everything. Oftentimes, our innate competitive nature can lead to a critical misstep in mock trials—namely, trying too hard to win. Your client is watching, and it is only natural to want to impress your client and give him or her the confidence to try the case. This is not a proper goal for a mock trial. The real goal is to present a balanced case that will result in a robust deliberation. This is how we learn. If most of the mock jurors agree with you, the discussion is tepid and you learn nothing. Consequently, you should make sure that you put on a strong case for both sides, and even put your thumb on the scale to balance the sides. Recruit one of your talented partners to perform if you think your second chair may tilt the scale.
In short, the lessons learned from a loss may be far more valuable than a lopsided victory. Explain this up front to your client and set the expectations. If you are a client, do not waste your money, and make the most of the mock by insisting that your attorney advocate as hard for the opposing side as your adversary will at the real trial.
Even a three-day mock is not always predictive. Although chances are high, winning the mock does not necessarily mean that you will win the case. Like a focus group, many of the issues that arise during trial cannot be simulated at a mock trial. For instance, the plaintiff may change his or her theme or strategy. Your witness may lay an egg. Your judge may surprise you with his or her rulings. Your jury may not match the demographics of the venue. Finally, the drumbeat of the themes has a cumulative effect over 10 days that cannot be replicated even in a three-day mock. Telling a lie 30 times may cause some jurors to believe the lie, when they did not believe it the first three times.
Don’t screw it up. Again, this is a social experiment and should be planned and controlled. You must impress upon all advocates that they must be prepared. If three are prepared and one is not, that can destroy your investment. We avoid using live witnesses or actors because a good or bad actor can skew the results as well.
Additionally, trial lawyers will be tempted to ambush the other side with a new argument or new evidence, or play a prank, or cheat. Although highly entertaining, do not do that under any circumstance. Unlike a trial, this is a controlled test. Tossing a grenade in a mock trial can skew the results, destroy any benefit that the exercise could have, and waste all the money your client has spent.
We previously believed that by having a one-on-one conversation with each of the first 18 jurors, we could identify those who were right-minded and strike others. In the course of pattern litigation, we have used a consultant to help us strike the jury in a few trials. We have been surprised and humbled at the value that a good consultant can provide to this process. Generally, the lawyer performing voir dire is multitasking—thinking about opening and the next witnesses. He or she may not have time to review the juror profiles or questionnaires thoroughly. While the lawyer is performing voir dire, he or she may miss things that are said or subtle body language in the venire panel. The consultant can focus all of his or her energies on those tasks.
During the strike process, we have been methodical about making lists of pros and cons for each juror and prioritizing whom to strike. In our last two trials, our consultant immediately provided his list of strikes. We wanted to discuss them. He did not. After doing our own analysis, we came to the same conclusion that he did. When the jury was in the box, he predicted the foreperson. Two weeks hence, we learned that he was right. Delegating this role to him lifted one burden and yielded the same or a better result.
In the last two trials, we have used shadow jurors. Our consultant hires between five and eight mock jurors to sit in the gallery and observe the trial from start to finish. The jurors do not know which side is paying them. They have a handler who meets with them each evening and harvests their impressions. We get the handler’s report in a concise summary. We see the jurors’ impressions of those who spoke. We see their questions. After a few days, the handler will ask whether the juror is for the plaintiff or the defendant. The questions get more specific toward the end of the trial, where they might ask charge questions.
A shadow jury provides a number of benefits. First, the jurors will raise questions or comments that tip off the trial lawyer and allow him or her to respond to those questions or comments the next trial day. Second, the jurors give real-time feedback on how the attorneys are perceived. For instance, the jurors might say, “He objects too much,” “What is he hiding?,” or “He seems mean.” This allows us to alter our style on the spot. Third, our last shadow jury picked up on our judge frowning and shaking his head, messaging his bias to the jury. We pointed this out to the judge in chambers, and his behavior immediately changed. Finally, if the shadow jury is leaning away from you, you can engage in settlement talks.
Shadow juries are usually predictive of the verdict, but note that we harvest their impressions without deliberation. We usually have a smaller number. It is easier for shadow jurors to say “no” to a plaintiff than it is for real jurors. Shadow jurors do not have the same feel-good incentive to make the plaintiff rich or to punish the defendant. Seeing a shadow jury tracking for the defense each day can instill false confidence, but that is not necessarily a bad thing.
The cost of jury research varies, but the following gives a general idea:
- Focus group: $40,000–$60,000
- Mock trial: $80,000–$100,000
- Shadow jury: $15,000
- Jury selection: $6,000–$8,000
- Post-verdict interviews: $5,000
Over the past year and a half, our firm has interacted with jurors and/or mock jurors an average of once a month. Further, in pattern litigation, the issues are often very similar but the venues are not. This work has given us a unique perspective on jury selection in the current political climate.
The traditional axiom of defense lawyers is that white, conservative, Republican, male jurors are better for the defense. This has always been a simplistic, lazy, and perhaps racist belief. With the recent trends in politics and growing anger toward “the system” and the status quo, this axiom is not only simplistic—it is dangerous.
What we call post-truth jurors are white, male, conservative, and Republican, but they are not necessarily good for the defense. They tend to be cynical, angry, and distrustful and have a strong desire to exercise power and disrupt the status quo, which may include institutions and corporations.
Jury psychologists have long postulated that emotions control how facts are perceived. Jury consultant Jason Bloom often preaches that you cannot change emotion with facts. That is especially true of this segment. Do these jurors believe there are no facts? Do they think the justice system is not a search for the truth or that it is all rigged? Are they willing to disbelieve facts in order to assert their will? Are they dismissive of experts? Of the rule of law? Of the burden of proof? Do they accept baseless conspiracy theories?
If the anger, distrust, and suspicion are directed at your company, it can be dangerous—punitive damages dangerous. Parsing through the prospective jurors’ predispositions in voir dire to determine if they belong to this segment of society is critical.
In short, we have learned that the defense lawyer’s axiom that Republican jurors are favorable has been shaken in recent years and is now unreliable. Demographics are no longer as predictable. Thus, striking a jury is far more complex than some believed, and a jury consultant can be helpful in identifying the risky jurors in the pool.
Finally, we have learned that a trial lawyer needs to be sure he or she is on the right side of emotion so as not to end up on the wrong side of the verdict.
The landscape of jury research continues to evolve. Sometimes this is because jurors are evolving, as we see with post-truth jurors or millennial jurors. Sometimes we evolve because our cases get big enough to afford jury research. Sometimes we evolve because our confidence in our old practice gives way to humility and new techniques. Our ethical duty to represent our clients zealously demands that we be open to such evolution. If used correctly, focus groups, mock trials, shadow juries, and jury consultants can be valuable tools for achieving the best result for the client.