A Comparison of Adversarial and Neutral Jury Research Methods

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.

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