The Value of Juror Attitude Surveys

by Art Raedeke

Public opinion polls have long been an indispensable tool of political consultants and market researchers, but their use in jury research has been more limited. Instead, qualitative approaches like Focus Groups and Mock Trials are more often the method of choice to assess how jurors will react to the parties and issues in a legal dispute. Juror Attitude Surveys, conducted either in conjunction with qualitative research or on their own, provide a rich source of quantitative data to aid the development of effective litigation strategies.

Methodology: Juror Attitude Surveys typically consist of telephone interviews conducted with jury-eligible residents of a given venue. Sample size depends on the degree of precision desired and on budget, but often ranges from 200 to 400 completed interviews. Respondents are selected using a Random Digit Dial sampling method based on a computer-generated list of random telephone numbers proportionately distributed across the geographic area of interest. Interviews can run from under ten minutes to more than twenty minutes in length. At the outset, each respondent is screened to ensure jury-eligibility and is then questioned to exclude any “security” risks (e.g. association with the legal field or the parties to the dispute). Once the respondent has been qualified to participate, the substantive interview begins.

Advantages: Quantitative surveys offer some significant benefits compared to Focus Groups and Mock Trials,. First, they yield, at a more reasonable cost, a large sample of responses that can be subjected to rigorous statistical analysis. This type of analysis is especially useful in identifying differences among various segments of the sample (e.g. to distinguish “plaintiff jurors” from “defense jurors” and to develop a jury selection profile.) Second, telephone surveys permit representative sampling of the large geographic areas from which jurors are often drawn. By contrast, it is more difficult to get people to travel long distances to participate in Focus Groups and Mock Trials. Third, surveys can be conducted relatively quickly when immediate feedback is required. Lastly, survey research requires far less attorney time than do qualitative exercises.

Disadvantages: Juror Attitude Surveys do have some drawbacks. First, the reactions measured are from individuals and do not account for jury “dynamics.” Second, the amount of case information that can be presented in a telephone interview is limited. As a result, the responses reflect jurors’ pre-dispositions regarding case issues. Third, telephone surveys allow no opportunity for the visual interaction that is necessary to evaluate witnesses, exhibits and attorneys. Finally, surveys conducted for litigation are subject to the same increasing refusal rate experienced generally in public opinion research.

Despite the limitations of telephone surveys, however, they can serve very useful purposes in formulating pre-trial and trial strategies. Among the ways surveys can be used are the following:

Venue Assessment: Juror Attitude Surveys are an excellent way to evaluate prevailing knowledge and attitudes that would likely affect jurors’ reactions to a lawsuit. When client image is of concern or if controversial issues are involved, a survey to profile the venue is especially useful. For example, surveys have been used to assess the impact of corporate nationality, to determine levels of concern about environmental issues and to uncover any “hometown” advantage a party to the suit may enjoy. One such survey was designed to evaluate how much of an initial edge the defendant in a patent suit had by virtue of its being a major employer headquartered in the trial venue. The survey gauged awareness of and attitudes toward the defendant and plaintiff and measured predispositions toward the hometown company. In this case it was determined that, in spite of the usual advantage enjoyed by patent holders, the defendant had a leg up on the plaintiff in this venue.

Settlement decisions: Surveys like the one described above provide valuable information to help inform settlement decisions. Not only do they expose image advantages for either party, they can measure the degree of support for each party’s positions in the dispute. By presenting jurors with a condensed overview of the dispute, verdicts can be measured and reactions to the case “value” can obtained. This approach was used in a recent patent dispute, in which survey respondents were given this case overview:

In 1988, an individual California inventor was granted a patent for a type of computer hard disk that increased data storage capacity at a lower cost. This inventor has accused a large Japanese electronics company of wrongfully manufacturing and selling its own hard disks that infringe this patent.

The electronics company denies that its disks infringe the patent. It goes on to say that the patent for the hard disk is not valid and that the patent holder should not have exclusive rights to the technology.

Based on this simple description, only 19 percent of the jurors did not have an opinion about who should win this case. Getting a sense of how likely you are to prevail at trial, and determining a range of probable awards puts you in a better position to make decisions about settlement demands or offers.

Trial strategy development: Knowing what attitudinal “baggage” jurors bring with them to court aids in the development of effective trial strategies. In addition to profiling these attitudes, surveys help further refine trial presentations by identifying what jurors see as the most important facts and most convincing arguments on both sides of the case. After jurors have been given the basic case overview, additional information and positions can be presented and the impact on verdicts can be measured. Following this elaboration on case issues, a second verdict is taken. By correlating reactions to the new information with verdicts and verdict switching, the strongest elements of each side’s case can be identified. This data is instrumental in crafting a case presentation that addresses problems and capitalizes on strengths.

Controlled experiments: Very often there is information that may or may not come in at trial which could have a significant impact on the case outcome. Juror Attitude Surveys offer an effective way to assess how valuable or damaging such information could be. In situations like this, the sample is split in two, with each sub-sample being given a different set of case information. By comparing the results obtained in the two segments, the impact of the information of interest can be determined. This approach can also be used to assess the effect of making certain “concessions” or to evaluate reactions to different damage requests.

Jury selection profiles: One of the big advantages Juror Attitude Surveys have over qualitative research methods is the ability to produce more reliable jury selection profiles. While these surveys tend to measure jurors’ predispositions based on limited information about the case, the data they yield can be subjected to multi-variate statistical analysis that identifies the juror traits that are most and least favorable to each side. Analyzing quantitative jury profiles in conjunction with the softer profiles developed from Focus Groups and Mock Trials increases the reliability of jury selection criteria.

Evidentiary research: Survey research is sometimes an essential form of evidence to support legal motions or positions at trial. For example, motions for change of venue can be bolstered by presenting reliable survey data demonstrating bias within the current venue, especially when accompanied by contrasting data from an alternate venue. Similarly, courts have come to expect submission of survey research in support of claims of confusion or lack of confusion over trade names and trademarks.

In sum, while Juror Attitude Surveys are not a flawless research methodology, when properly designed and executed, they are a powerful tool to aid in the development of well-founded and effective pre-trial and trial strategies.