Litigation Tips Archive

Using Jury Research to Evaluate Witness Effectiveness

Attorneys’ impressions of their own and the opposition’s witnesses are often different from jurors’ impressions of the witnesses. One way to determine whether an attorney’s impressions of witnesses are accurate is to include a witness evaluation in mock jury research. Witness evaluation can be accomplished in one of the two ways: excerpts from videotaped depositions can be shown to jurors or the witness(es) can be brought to the jury research and subjected to a mock direct and cross examination. In either case, mock jurors are asked to evaluate the witness on a variety of dimensions. Obtaining an objective measurement of a witness’ performance is far superior to utilizing one’s personal observations to evaluate the witness’ effectiveness.

Contact Magnus to arrange a witness evaluation program.

Voir Dire Workshop

Magnus has designed a service to strengthen voir dire, a crucial trial skill, using a pending case. Many attorneys have expressed a perceived weakness in their own ability to conduct voir dire. The Voir Dire Workshop “coaches” the attorney in a realistic voir dire setting. A mock voir dire is conducted with jury eligible citizens in the trial venue using a case the attorney is preparing for trial. As the attorney questions the mock jurors, the consultant coaches him/her on ways to improve voir dire skills. Additional critiques occur after the jury has been “selected”.

The Voir Dire Workshop can be used by individual attorneys or as law firm training; CLE credit can also be obtained. Magnus’ Voir Dire Workshop is an excellent way to practice and develop voir dire skills.

Call Magnus today for “coaching” to enhance your voir dire skills.

Jury Research the Magnus Way – Part 3

In the third, and final, postcard on the topic, “Jury Research the Magnus Way,” the issue of mock jurors’ participation will be addressed. In addition to careful recruitment of mock jurors to ensure a representative sample of research participants, Magnus Research Consultants also takes strong steps to ensure that mock jurors never know which party to a lawsuit has retained Magnus. It is imperative, for research purposes, to keep research participants “blind” about the side that has commissioned jury research so that they do not reach decisions merely to help the party that is paying for their participation. One important reason why “do it yourself” mock trials are problematic is that mock jurors invariably figure out which side has hired them, leading to biased and unreliable research results. Retaining Magnus ensures that your research results are an accurate reflection of jurors’ opinions, especially if the results are unfavorable.

Contact Magnus to learn more about “The Magnus Way.”

Jury Research the Magnus Way – Part 2

Part 2 of our “Jury Research the Magnus Way” postcard series explains another factor that differentiates Magnus Research Consultants from our competitors. This second factor is Magnus’ avoidance of observer bias in our interpretation of jury research results. Magnus utilizes a research design, unique among jury consulting firms, that involves a minimum of two Ph.D. level consultants who work independently on each case. Magnus also employs two consultants who hold Ph.D.s in psychology as well as J.D.s, both of whom are members of the Florida Bar. Magnus’ utilization of at least two consultants on every research project ensures that research data are carefully interpreted according to strong social scientific principles. Our interpretation of research results is truly objective, never involving telling our clients what they want to hear, but what they need to hear.

Contact us for more information on the “Magnus Way.”

Jury Research the Magnus Way – Part 1

Attorneys who have never worked with Magnus Research Consultants often ask us to explain what differentiates Magnus from our competitors. In a series of postcards, we will explain several ways that Magnus is different from our competitors. The first factor concerns Magnus’ avoidance of sample bias in our recruitment of mock jurors. Magnus recruits mock jurors scientifically; we use Census information from the trial venue to have each panel of jurors reflect the actual composition of jury eligible citizens. We then “cold call” or “randomly recruit” all potential mock jurors until we have constructed a panel that conforms to the Census data. We never recruit mock jurors like some of our competitors do by using a database of repeat jurors, placing ads in the newspaper or on the Internet, or using employees from a temporary agency. In general, Magnus expends considerable time and expense to avoid sample bias that would ultimately compromise our clients’ research.

Contact us for more information on the “Magnus Way.”

A Comparison of Adversarial and Neutral Jury Research Methods

“Jury research” has a variety of meanings to attorneys and jury consultants. Most often, jury research refers to mock trials, trial simulations, and focus groups, however, within each category of research are numerous methodologies and approaches to obtaining information. In general, most jury research falls into 2 categories: adversarial and neutral/non adversarial. Adversarial jury research methodologies more often than not involve a mock trial format. Mock trials vary widely in terms of: length (ranging from a few hours to many days); complexity (for example, whether witnesses are present); number of mock jurors who participate; number of scenarios tested; etc. Mock trials typically require 1 attorney to represent each party in the case, including an attorney who can effectively role play the opposing counsel and each attorney presents his/her case to 1 or more groups of mock juries. The attorneys’ arguments can be presented live or on video, mock jurors can hear arguments in 1 large group that is divided into smaller deliberations groups who deliberate simultaneously or multiple presentations can be made and the juries can deliberate sequentially, however, the end result is typically in the form of a verdict. Adversarial jury research is performed most often prior to an important event in the life cycle of the case: mediation, arbitration, or trial. (Mock mediation, involving mediators; mock arbitrations, involving arbitrators; and mock bench trials, involving judges, also employ adversarial presentations by attorneys, however, they are not the subject of this writing.) In the early era of jury research, mock trials were most often reserved for “big” cases and were most often conducted immediately prior to trial. In today’s litigation arena, mock trials have become the norm for all types of cases and are usually conducted prior to mediation.

In contrast to mock trials and other adversarial forms of jury research are neutral, non adversarial research methodologies. The most common non adversarial research method is the focus group. Unlike a mock trial, a focus group typically involves 1 attorney and often, a moderator, who take special steps to present the case information to a panel of respondents in an unbiased, neutral fashion. The people who participate in a focus group are not referred to as mock jurors, because they do not reach a verdict or other group decision; rather, they are called participants or respondents. Focus groups usually precede mock trials, but they can be conducted as stand alone research. The optimum timing for a focus group is early in the life cycle of a lawsuit, before discovery is taken, so that discovery efforts can be fine tuned according to the information a jury will want to hear in order to decide the case. Mock trials and focus groups are not mutually exclusive. For maximum effectiveness, they should be conducted in conjunction with one another so that the litigator is able to refine his/her trial strategy based on the outcome of more than 1 research exercise. There is never a case that can be made for the absence of trial preparation; using mock trials and focus groups will provide information that is not possible to obtain with any other means.

Contact Magnus for any of your Jury Research needs.

Community Attitude Surveys

Community Attitude Surverys allow the litigator to “place a finger on the pulse” of jury eligible citizens, to identify crucial attitudes, values, and beliefs of the people who will ultimately decide the case. Essential to change of venue motions, the results of Community Attitude Surveys also provide extensive and reliable information for evaluating and litigating cases, particularly those involving high profile or controversial issues or parties. Community Attitude Surveys are typically conducted via telephone interviews of a large number of citizens; the insights gleaned provide a starting point for mock trials, a basis for understanding the case, and assist in profiling jurors for jury selection.

Call the experts at Magnus to find out how Community Attitude Surveys can change the way you view your case.

The Value of Mock Arbitration

Many of Magnus’ clients litigate cases that are primarily resolved through the arbitration process, as opposed to jury or bench trials. The cases that undergo arbitration, including those mandated by the court to undergo arbitration, typically involve complex issues that would be difficult for the average person to comprehend. Cases in the realm of securities, including securities fraud, and construction are commonly decided by arbitrators instead of juries.

In much the same ways as mock jury research is a valuable part of the litigation process prior to mediation and trial, mock arbitration provides tremendous benefits to the litigator who is faced with having a case decided in an arbitration. There are numerous approaches which can be undertaken in a mock arbitration format to assist the attorney and end client understand the best approach to take during the actual arbitration. It is generally recommended to present each side of the case to multiple arbitration panels, who will be provided with all of the case information simultaneously before being divided into individual panels comprised of 3 to 4 arbitrators per panel. In this way, the attorney can obtain considerably more feedback than if only 1 panel of arbitrators participates in the mock arbitration research.

As with any research design, mock arbitrations are only as valid as the method of selecting the arbitrators who participate in the research exercise. In order to obtain valid research results that will be helpful in refining case strategy, the people who are selected as mock arbitrators must be closely matched to the characteristics of the actual arbitrators. For example, if the arbitrators who will be panelists on the actual case are required to be members of a certain organization, have specific credentials, have a minimum number of years’ experience in arbitrating a specific type of case, etc., then it is important for the participants in the mock arbitration research to share these characteristics. If the method of selecting the mock arbitrators is biased, then the research findings will be biased as a result.

Although Magnus’ Director of Research, Dr. Melissa Pigott, has been conducting mock arbitrations for almost 25 years, relatively few of our clients utilize this valuable research tool to prepare for their arbitrations. The extent to which a mock arbitration can prepare the attorney for the actual arbitration is unsurpassed by any other method of preparation. Just as mock jury research has become a requirement for the effective litigation of cases involving jury trials, Magnus expects there will come a time when mock arbitrations are no longer cutting edge, but something that is considered necessary for attorneys who arbitrate their cases.

Contact Magnus to schedule a mock arbitration panel; you will be glad you have valuable information that can only be gained via this research method.

Which Research Methodology is Appropriate for Your Case?

There are several research methodologies that are commonly employed in the litigation research arena. Some, but certainly not all, of these research methodologies are appropriate for jury trials, while others are more suitable for arbitrations, mediation, and bench trials. The methodology that is best for one case is not necessarily appropriate for another case; the attorney must consider the goal of the research and whether a particular research methodology will meet this goal.

If the goal of jury research is to aid the attorney in the discovery process, evaluate problem issues, and/or get an early understanding of the case, a non adversarial research methodology is appropriate. Many attorneys prefer an adversarial “mock trial” approach for all of their cases, however, there are numerous occasions when a mock trial should be preceded by a non adversarial “focus group” approach, whereby issues can be evaluated in a neutral fashion. This type of research is most often conducted early in the case and well before discovery is completed. It serves as a building block for additional, adversarial jury research.

If the goal of jury research is to develop profiles of juror types for jury selection, an attitude survey involving a relatively large number of potential jurors is the most appropriate research method. Attitude surveys are similar to opinion polls and are most often conducted via telephone interviews. In addition to being useful for developing juror profiles, attitude surveys are often conducted in high profile cases, to assess the community’s perception of the case issues and litigants. Attitude surveys are also utilized in certain cases to ascertain whether a change of venue is warranted.

The most common jury research methodology is, of course, the mock trial. Mock trials, also known as jury simulations or by other similar names, involve an adversarial presentation made by two or more attorneys who “represent” each side of a case. Mock trials are appropriate when the desired goal is to fine tune arguments, assess a case’s strengths and weaknesses, and to test various theories of a case. Mock trials are useful prior to mediation, as well as in preparation for a trial. They should be conducted when the attorney has a reasonably strong understanding of all sides’ positions of the case issues. However, it is not necessary to wait until you know “everything” about the case. Contrary to what many attorneys believe, mock trials are more suitable for evaluating liability than damages.

Other research methodologies include mock arbitrations, mock mediations, and mock bench trials. As the names imply, these research methodologies do not involve jury eligible citizens; rather, they involved the types of individuals who will be making decisions in the actual proceedings.

Although this article does not presume to imply that litigation research is limited to the above methods, it is intended to help the litigator and trial lawyer make more informed decisions about which methodology is most appropriate for a given case, at a given time in the litigation process. As with the other important decisions you face in representing your clients, the decision regarding which research methodology is most appropriate should be made after careful consideration of the goals you are trying to achieve and discussions with your consultant. Finally, it is often the case that more than one methodology should be employed to evaluate the case from different perspectives.

Contact Magnus for a custom designed research program on your next case.

Settlement Decision Research

Settlement Decision Research was designed to provide attorneys and their clients with a comprehensive evaluation of the strengths and weaknesses of their case prior to mediation or other forms of alternative dispute resolution. Using Settlement Decision Research allows plaintiffs’ attorneys to know whether the settlement offer they have received is reasonable. Similarly, Settlement Decision Research provides defense counsel with an effective means of assessing a settlement demand. If the case remains unresolved after mediation has concluded, the results of Settlement Decision Research can be applied toward formulating trial strategy. Both liability and damages evaluations are included in Magnus’ Settlement Decision Research

Contact Magnus  for more information on Settlement Decision Research.