An Ounce of Prevention: Jury Research During Discovery

by Art Raedeke

Despite the seeming financial incentives to delay jury research until shortly before trial, starting the research in the early stages of discovery can reduce overall litigation costs.

Your strategy during discovery can be at least as important as your strategy during trial. Well designed research steps conducted early can help you build a litigation plan that will serve you well throughout the course of your litigation. Understanding how jurors view your case enhances your discovery efforts in several ways.

Choosing Among Witnesses

Selecting the best witnesses to make your case involves considerable uncertainty. When various expert or percipient witnesses can convey the same information, it is crucial to determine which one is most effective in communicating with the jury. Empirical research can help you make the choice. For example, a defendant in a product liability suit was faced with the choice of three employees who could testify about the company's advertising policies. To select the best witness, research was conducted at which mock jurors watched videotaped testimony from the potential witnesses. The results showed that many jurors did not like the company president, while most considered a marketing manager to be too low in the corporate hierarchy to be testifying about issues of such importance. Based on these reactions, a Vice President to whom the marketing manager reported was selected to give the testimony. He was liked by jurors and held a corporate rank that indicated the defendant took the matter seriously. Once the witness was selected, the trial team could turn to identifying areas needing most attention during witness preparation.

Identifying the Need for Additional Witnesses

Early research can also identify gaps in your case that need to be addressed. Uncovering weaknesses in your case or areas about which jurors are confused allows you to utilize witnesses to address those points. Such was the case in a contract fraud suit. The plaintiff's case was built on the contention that it had been misled about the financial condition of a business that it purchased from the defendant. In a simulated trial, the plaintiff put on testimony to show that the defendant had made serious misrepresentations during negotiation of the sale. Jurors, however, were equally interested in what the plaintiff had done to uncover these misrepresentations. Given these reactions, the plaintiff knew it needed to call a witness to testify about its due diligence efforts.

Witness Preparation

Since the only exposure jurors have to some witnesses is through deposition testimony, it is critical that witnesses are as well-prepared for depositions as they are for trial. Moreover, it is generally desirable that your strategy for depositions, both for your own and for opposing witnesses, be consistent with your trial strategy. Once again, conducting research early can help make deposition testimony work to your benefit. Empirical research identifies which facts and themes your witness should convey when being deposed, and shows what parts of opposing witness depositions are vulnerable or need to be neutralized. For example, initial research conducted on a product liability case showed that jurors were quite suspicious of plaintiffs' motives in bringing the suit. With this information in mind, considerable attention was focused during depositions on how the suit originated and what role was played by attorneys and examining doctors in getting plaintiffs to bring the suit.

Identification of Key Case Issues

Just as empirical research can help identify areas needing expert testimony, so can it can indicate which case issues are most important to address during discovery. In a toxic tort case, for example, most discovery activities had been directed to the issue of causation, while comparatively little attention had been focused on other aspects of the case. In a simulated trial conducted shortly before trial, jurors felt the question of causation was of secondary importance and faulted the defense for failing to present a convincing case on warnings, product testing and other safety issues. Had these priorities been identified earlier, efforts could have been directed at those case issues which jurors considered to be most crucial.

Settlement Decisions

Research designed to evaluate your prospects of prevailing at trial can contribute greatly to settlement decisions. If your chances are slim, your stance during settlement negotiations may be altered accordingly. This research can also help encourage your opponent to settle. Litigants have sometimes shared research results with the opposition to show that it would be in their interests to be more flexible in settlement talks. In one case, a co-defendant who was reluctant to put up any money to settle was persuaded to change positions when provided research results showing that jurors found that defendant primarily liable for damages in the case.

Development of Graphics

Empirical research conducted early suggests concepts for visual presentation of case elements. Thinking well in advance of trial about how to present your case visually has a number of advantages. First, it avoids the last minute rush that often relegates graphics to a low priority and can result in extra cost. Second, early development of concepts for courtroom visuals allows you to test the effectiveness of the exhibits. Third, thinking about your visual presentation early encourages formulation of a cohesive case strategy that can be followed throughout the course of your preparations.

Cost Savings

Conducting empirical research in the early stages of trial preparation need not be financially prohibitive. There are research options that require relatively little attorney time and are very cost-effective. The results can make a substantial contribution to your litigation strategies and can reduce the overall costs of preparing for trial.