by Art Raedeke

Rulings on motions in limine can have a defining impact on the complexion of a case at trial.  Whether or not jurors hear about such facts as an accident victim’s poor driving record, a terminated employee’s misappropriation of company documents, or a securities fraud defendant’s stock sales can significantly affect how jurors decide the case.  By their nature these “in limine issues” are wildcards until the trial begins.  In planing trial strategies and themes, counsel must contend with the uncertainty of what information will come into evidence.  However, knowing in advance what impact in limine issues would have on jurors can be a powerful tool, both in forming settlement positions and in preparing to try the case.  Fortunately, through properly designed empirical jury research, it is possible to assess the affect of these issues.  Following is a brief discussion of methods for testing in limine issues.

Since most jury research methodology involves some form of case presentation, decisions must be made as to which case issues should be presented and tested.  The selection of issues to be tested should be based on a pessimistic assessment of the likelihood of having specific information come into evidence, as well as on an evaluation of the importance of the information to jurors.  The core case presented for testing should include only those facts jurors at trial are reasonably certain to receive.  Other issues that could have a significant impact on case outcome but may not come in at trial should be tested either peripherally or through controlled experiments.

Controlled experiments in which different “jurors” are exposed to different case presentations are the most reliable methods of testing the impact of discrete case issues.  In these research designs, one sample of jurors can react to the case without hearing certain facts, while another sample can be exposed to the same case plus the “test” issue.  A comparative analysis of the responses from the two samples indicates the impact on and importance of the test variable in jurors’ decisions about the case outcome.

Juror Attitude Surveys, because they are quantitative in nature and permit large sample sizes at a reasonable cost, are well suited to this type of experimental design.  A sufficiently large sample of “jurors” can be divided into two segments, each being exposed to the same basic case information, but with one segment hearing the additional information of interest.  Statistical analysis of the two sample segments in terms of verdict decisions, damage awards and other relevant measures indicates not only how jurors respond to the case, in general, it also determines the impact of the “test” information.  

 A similar approach can be taken with Mock Trial research.  In these formats, where case information is presented in much greater detail but to a smaller number of jurors, a split sample design can also be used.  Because it is advisable to have at least two juries react to the same case presentation, the split sample approach involves conducting two exercises with varied case presentations, or conducting one exercise with four juries.  In the second option, two of the juries are excused during presentation of the test information.  Again, analyzing the differences between the control and test juries’ deliberations reveals the extent to which the in limine issue affected the outcome.

A less expensive, though somewhat less precise approach to testing in limine issues, is to introduce the information peripherally or “after the fact.”  In this research design, jurors first react to a core case presentation  and are then given the additional information that may or may not come in at trial.  For example, in a Juror Attitude Survey, after obtaining verdicts based on a brief overview of the case, jurors can be told about the additional issue of interest and asked for another verdict.  In Mock Trial formats jurors can deliberate the case based on the basic presentation.  Following these deliberations juries are typically interviewed by a research professional to shed further light on why jurors reacted to the case the way they did.  During these interviews, additional case information can be presented to jurors in order to evaluate their reactions.  While this approach usually reveals how influential the new information is to jurors, the result is not the same as if the new information had been presented and processed as part of the original case. 

One way of obtaining an early assessment of the possible impact of an in limine issue is to include the information in Issue Assessment Groups.  This research format consists of two or more structured discussion groups of eight to ten “jurors.”  In these groups case information is presented from the perspective of a neutral third party.  Case facts and arguments are presented in modular form, with a discussion following each issue area.  By determining how juror reactions to the case change as new information is presented, it is possible to evaluate how specific case issues affect decisions regarding liability and damages.  These groups require far less attorney time than do Mock Trials. They are an efficient and relatively inexpensive way of obtaining an initial read on juror reactions to the case, as a whole, as well as to issues of particular interest. 

Knowing the impact of in limine issues can be useful in a number of ways:

• It helps define settlement positions, especially after rulings on pre-trial motions have been made.
   
• It guides strategies for dealing with the issues during depositions and at trial.
    
• It suggests priorities for submitting and arguing pre-trial motions.

The most appropriate method of testing the impact of in limine issues varies from case to case, depending on factors like timing and budget.  In almost all cases, however, there is a research design that will provide a good indication of how these issues could affect case outcome.