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.