Airplanes have been around for a long time, but the cockpits have certainly evolved to incorporate more technology, allowing the pilots to do more, focus on more critical things, get more information faster, and make better decisions. The same thing is happening in the legal technology world. Although there is no app that can argue our motions or depose expert witnesses, technology is providing us with shortcuts and better tools to do our jobs.
The Importance of Jury Research
One area where technology has helped us is in jury pool research. Doing focus groups is an invaluable way to gather information and test your theories on a case. I personally participate in about 12 focus groups a year. Every case we take to trial gets at least two focus groups. At focus groups, you can uncover hidden issues in your cases that you never noticed. For example, in a recent case, we did a focus group and showed a panel of jurors some handwritten checks. One of the jurors noticed that the handwriting for the date on one of the checks was different from the handwriting on the rest of the checks, and thought we were being deceptive by presenting forged checks. The checks were not forged, but then we knew that we had to throw in a short explanation for the reason of the change in the handwriting. We’ve done focus groups in personal injury cases to see if the fact that our client walks a mile a day, where before he was running five miles a day, helps us or hurts us. We’ve done focus groups in medical malpractice cases to see whether overwhelming, complex medical terminology helps our case or hurts it. There is simply no substitute for doing the research.
While valuable, the traditional way of doing focus groups or mock jury trials has a number of disadvantages. As someone who does a lot of in-person focus groups, here are the problems that we run into using the old method:
1. It is very time-consuming to organize a group of people to come to a location at a given time.
2. After you make arrangements, you’ll usually get about 10% drop out. So, if you ask 12-15 people to show up, you’ll get 1-2 last-minute dropouts.
3. You are limited to the size of your jury room. With a large conference room, you are limited to maybe 15 people max. That means you have to do more focus groups to gather more data for the results to matter.
4. Analyzing the results is difficult because you are taking feedback orally. To properly analyze, it needs to be put into a chart or a graphic to get snapshots of your results.
A Better Way to Gather Research
We now have better ways to get this information, though. DecisionQuest is a trial consulting firm that specializes in all manner of helping attorneys understand jury pools and to be more persuasive, from the preparation of trial graphics, to trial presentation services, and jury research and focus groups. DecisionQuest has two online methods of gathering data for your case:
CaseXplorer
CaseXplorer is a tool that allows you to prepare an online survey to send out to surrogate jurors. DecisionQuest provides a number of template questions that they have used in the past on a variety of cases. You can use their template questions, edit the template questions, or draft your own. You can also use one of their consultants to help come up with a presentation that includes survey questions, trial graphics you want to test out, video deposition clips you want to show, and other elements of your case. You then choose a sample size for your jury and the presentation is sent to the sample jury in the appropriate venue. When everyone is done, their results are gathered and put into a report with charts and graphs for you to review. This lets you quickly identify weaknesses and strengths of your case. It also lets you test out the credibility of witnesses with video clips. Sometimes, when we “live” in the case for years at a time, we have a hard time separating out the background information of what we know from the small sliver of information that is actually presented. Sometimes, we are a little biased as well. Doing survey research helps us get the same level of unbiased (or mixed biased) opinions we’d get from the jury pool in court.
JuryLive
JuryLive is an online moderated focus group where the participants can watch you give an opening, view exhibits, and preview other evidence. The jurors are connected in a live video chatroom where the moderator has the ability to ask questions, follow up with juror responses, and probe for their opinions on issues from your presentation. The entire focus group is recorded as well, and you get a copy of it a few days later to review and analyze.
Conclusion
Whether you are in a defense firm and you risk losing a client, or if you are in a plaintiffs’ firm and you have significant money at stake in the outcome of your case, the ability to gather intelligence on your themes and evidence is an invaluable tool. DecisionQuest has simplified that process and made it more efficient for us to get the information we need to make case decisions.
Jeff Bennion is Of Counsel at Estey & Bomberger LLP, a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. He serves as a member of the Board of Directors of San Diego’s plaintiffs’ trial lawyers association, Consumer Attorneys of San Diego. He is also the Education Chair and Executive Committee member of the State Bar of California’s Law Practice Management and Technologysection. He is a member of the Advisory Council and instructor at UCSD’s Litigation Technology Management program. His opinions are his own. Follow him on Twitter here or on Facebook here, or contact him by email at [email protected].